Citation Nr: 21023173 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-19 101 DATE: April 20, 2021 ORDER Entitlement to service connection for a low back disability, to include lumbosacral strain, is denied. FINDING OF FACT A low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include lumbosacral strain, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1991 to October 1994, and from May 1995 to May 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was remanded by the Board in June 2020. Entitlement to service connection for a low back disability, to include lumbosacral strain, is denied. The Veteran contends that a current low back disability is related to injuries and treatment for low back pain that occurred in-service. As reflected in his April 2016 substantive appeal, the Veteran asserts that his back was originally injured in service in January 1993 and in 1996. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records reflect intermittent treatment for back pain. In January 1993, the Veteran sought treatment for back pain, cough, and fever. On annual service examinations in July 1994 and March 1995, the Veteran denied any history of recurrent low back pain. In February 1996, the Veteran sought treatment for low back pain for 5 days and cold symptoms for 6 days. The clinician assessed pharyngitis and hip strain. At the time of the separation examination in January 1999, the Veteran was noted to have had a normal spine examination. He again denied having, or ever having had, recurrent back pain in his January 1999 report of medical history. VA treatment notes first show complaints of low back pain in November 2006. At that time, the Veteran complained of bilateral low back pain for about three days, that seemed a little better. He also reported having “no prior history of a back injury.” The assessment was low back pain of unknown etiology, possible lumbar strain. He again sought treatment for lumbar strain in February 2007, at which time he reported carrying a couple of cases of handcuffs the previous Thursday, spending the next day driving, and waking up on Saturday with pain on the left side of his back. Clinicians noted a history of low-grade back strain in November that had resolved within a couple of days. The assessment was lumbar strain. Private treatment records reflect that the Veteran presented in January 2010 with complaints of gradual onset of intermittent episodes of severe left lower back pain that had begun about four days prior. Lumbar strain was again assessed. In October 2011, the Veteran presented with acute back pain that was muscular in nature. He reported lifting a heavy object two to three days prior, but that his back did not hurt at that time. The assessment was back muscle pain. The Veteran was afforded a VA examination in October 2014. The Veteran reported episodes of low back pain related to routine military strenuous work. The examiner noted low back strain in February 1996. The examiner diagnosed lumbosacral strain. However, as the Board determined in its 2020 remand, the examiner’s opinion that a conclusion about the presence of a chronic back pain could not be made was not adequate under Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Pursuant to the 2020 Board remand, the Veteran was afforded a VA examination in July 2020. The Veteran reported back pain since 1991, after he slipped in the mud and hurt his back. The examiner diagnosed intervertebral disc syndrome. The examiner opined the back disability was less likely than not incurred or caused by lumbosacral strain during service, to include the Veteran’s in-service complaints of and treatment for back pain. The examiner explained that the Veteran’s degenerative disc disease was documented on a 2019 MRI, and determined these findings were not related to a simple strained lumbar spine and hip strain, which later resolved, during active service. Further, the Veteran’s current symptoms were not consistent with in-service records showing lumbosacral strain during service, and there was no evidence of chronicity of care from an in-service injury to the VA examination. The preponderance of the evidence is against finding that any current back disability began during active service, or is otherwise related to an in-service injury, event, or disease. The July 2020 VA examiner opined that the Veteran’s low back disability was not at least as likely as not related to an in-service injury, event, or disease, including treatment for a strained hip and back during active service. The examiner explained that the in-service strains fully resolved and were unrelated to degenerative disc disease documented in a 2019 MRI. The examiner further noted that there was no chronicity of care after the strains until the present time. The examiner’s opinion is probative, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his low back disability is related to in-service injuries. However, the issue of whether any current low back disability is etiologically related to back pain or injury 15 years earlier is medically complex, and requires knowledge of anatomical relationships, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has considered whether presumptive service connection is warranted for a chronic disease or whether a nexus may be established based on continuity of symptomatology. As there is no competent evidence of degenerative disc disease or arthritis in service or within a year of service discharge, it is not presumed to have onset in service. 38 C.F.R. § 3.307, 3.309. Service connection based on continuity of symptomatology is also not warranted. To the extent that the Veteran asserts he has experienced back pain since service, this is contradicted by his own statements in on medical examination in service and post service. At the time of his January 1999 discharge examination, he denied having or having ever had any recurrent back pain. When he first complained of low back pain in November 2006, he reported an onset of only three days, as well as having “no prior history of a back injury”; in February 2007, it was noted that this November 2006 back pain had resolved in a couple of days. Subsequent treatment for episodes of low back pain in February 2007, January 2010, and October 2011 each note an onset of such pain only a few days prior. For the reasons above, a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disability, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Andrew Mack Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.