Citation Nr: 21023143 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-20 231 DATE: April 20, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The inservice back complaints were acute and not indicative of a medically chronic disability. 2. A chronic lumbar spine disorder did not manifest in service and arthritis was not manifest within one year. The post-service lumbar spine disorder is unrelated to service. CONCLUSION OF LAW A lumbar spine disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to October 1998. The Veteran appeared at a Board hearing in May 2019; a transcript is of record. During the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran’s claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. 1. Entitlement to service connection for a lumbar spine disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has been diagnosed with lumbar degenerative arthritis. Arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303(b). The Veteran maintains that his lumbar spine disorder originated in service. He specifically remembers that the first time he hurt his back was during a pugil stick fight during training at some point between October 1995 and December 1995. He reports that the disorder has continuously bothered him, both during and after service. The Veteran testified that he has been going to physical therapy for his back. The Veteran also submitted a positive nexus opinion from his doctor regarding his lumbar spine disorder. Service treatment records indicate back problems during service. In December 1995, the Veteran reported back pain, which he had been previously seen for. A medical record in March 1996 also indicates that the Veteran had been experiencing back pain dating back to the use of pugil sticks during training. In October 1997, the Veteran reported back pain after lifting sandbags. On an undated report of medical history at the expiration of his term of service, the Veteran did report yes for recurrent back pain or any other back injury. There was no further explanation regarding back pain on this document. Medical records after service are silent regarding lower back issues until 2014. In July 2014, the Veteran received a gunshot wound which injured his lower lumbar spine. An outpatient note indicated that a bullet fragment lodged in the Veteran’s lumbar spine. The Veteran was also involved in a motor vehicle accident in August 2015 and reported being involved in another motor vehicle accident in July 2020. The Veteran was afforded a VA examination in February 2021. The VA examiner diagnosed the Veteran with lumbar radiculopathy, lumbar degenerative arthritis and lumbar degenerative disc disease. The VA examiner concluded that the Veteran’s lumbar spine disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner wrote: “the available medical records do not show a link between his active service low back pain and his presently diagnosed lumbar radiculopathy, lumbar degenerative arthritis and lumbar degenerative disc disease. Additionally, this veteran has had other significant injuries to his low back, including a gunshot wound to his lumbar spine in July 2014 and a motor vehicle accident on August 15, 2015, both of which are at least as likely as not making a significant contribution to this veteran’s lumbar pain.” The Veteran has also submitted a medical opinion from a private examiner. The examiner writes that “Due to military injury and possible exacerbation from gunshot wound in 2014, patient suffers from limited mobility and chronic lower back pain that has been present since the mid 1990s.” See Medical Treatment Record- Non-Government Facility, received January 16, 2020. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the VA medical opinion that the Veteran’s lumbar spine disorder is less likely than not related to service as highly probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds this medical opinion to be highly probative as it is adequately supported by additional rationale, in particular taking into account the Veteran’s medical history with the military. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the January 2020 private medical opinion to be of minimal probative value. The examiner provided minimal supporting rationale and did not address the effect of the Veteran’s motor vehicle accidents on his back. Furthermore, the private medical opinion lacks detail and specific discussion of the Veteran’s lumbar spine disorder, in particular his arthritis. In this instance, the Board finds the February 2021 VA examiner’s opinion to be the most probative as he provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran’s claims file, when concluding that the Veteran’s lumbar spine disorder was not related to his service. The Board has considered the lay statements of the Veteran regarding his lumbar spine disorder. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of a lumbar spine disorder during active service, or within a year of separation. With regards to chronic disease, chronic disease (arthritis) of the lumbar spine was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity (arthritis), and sufficient observation to establish chronicity at the time. Rather, despite his report of a history of pain, there were no findings of arthritis. In addition, there is a remarkable lack of credible evidence of continuity of symptoms until nearly 16 years after separation (October 1998). Here, despite complaints of pain during service, he did not have arthritis during service or within one year of separation and there is otherwise a lack of credible evidence of continuity.   In sum, there is insufficient competent and probative evidence linking the Veteran’s lumbar spine disorder, to include arthritis, to service. The more probative evidence establishes that the Veteran did not have a medically chronic lumbar spine disorder during service, that such disorder is not related to any event in service. The evidence establishes that the remote onset of a lumbar spine disorder is unrelated to service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.