Citation Nr: 21023550 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-25 069A DATE: April 20, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability was not manifested during service; low back arthritis was first shown many years after the Veteran’s honorable period of service; and his current low back disability is not shown to be etiologically related to such period of service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who service on honorable active duty service from October 1975 to October 1978 (and had additional service from October 1978 to November 1985 that was determined to be dishonorable, and therefore not qualifying for VA compensation benefits. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision. In September 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2019, this matter and the matter of entitlement to service connection for left ear hearing loss were remanded for additional development. [A June 2020 rating decision awarded service connection for left ear hearing loss; fully resolving that issue.] At the outset, the Board finds there has been substantial compliance with its February 2019 remand directives pertaining to the matter remaining on appeal (VA asked the Veteran to submit authorizations for VA to obtain records from the previously identified private providers and the September 2020 examiner provided adequate explanation for the [negative] opinion provided). See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional evidence (updated VA outpatient records) was received in the record subsequent to the September 2020 supplemental statement of the case. The records do not contain information material to the claim of service connection for a low back disability (they show a current diagnoses of a low back disability but do not discuss etiology, and are cumulative, but not new, evidence). Therefore, waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence (or return of the record to the AOJ for that purpose) is not required. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active peacetime service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran’s service treatment records (STRs) note he was seen for complaints of low back pain. A June 1977 STR notes that he was seen for complaints of persistent low back pain from a muscle strain. The Veteran’s STRs from the period of service for which he is not eligible for VA benefits show he was seen for complaints of low back pain in May 1979, May 1982, and January 1983. A July 1979 periodic examination found his spine normal on clinical evaluation. A December 1983 separation examination, his spine was found normal in clinical evaluation; in a contemporaneous report of medical history, he denied recurrent back pain. A September 2011 VA treatment record notes the Veteran developed neck and back pain about 20 years ago. On October 2011 VA examination, it was noted that the Veteran was seen for a low back strain in service. He also reported he suffered a workplace back and neck injury in the 1990s, when a roof panel fell on his head and he required surgical intervention. On May 2017 VA examination, the diagnoses were degenerative arthritis of the spine, spinal stenosis, lumbar strain (1977), status post lumbar laminectomy (1990), and lumbar spine stenosis (2008). The examiner opined that it was less likely than not that the Veteran’s current low back disability is related to service. The examiner explained that the Veteran’s lumbar strain in service was treated without residuals. At the September 2018 hearing, the Veteran testified he received private treatment for his back prior to the workplace injury in the 1990s. He testified that the workplace injury in the 1990s made his back condition worse. The February 2019 Board remand ordered development for any outstanding private treatment records identified by the Veteran and then for a medical advisory opinion on the etiology of his current back disability. In a September 2020 VA medical opinion report (based on review of the record), the consulting provider opined that the Veteran’s low back disabilities, to include multilevel degenerative joint disease (DJD), degenerative disc disease (DDD), stenosis, and status post laminectomy, was less likely than not related to his honorable period of active duty service (from October 1975 to October 1978) and his complaints during that period of service. The provider opined the complaints in service were acute and self-limited in nature, noting he was treated from June 9 to 15, 1977 for back pain and was doing well at the time of the June 15th visit with the exception of a trichomonas/STD infection which was causing unrelated symptoms of pelvic, abdominal, and back pain. The provider noted the May 1979 complaints were felt to be prostatitis (unrelated to a lumbar spine condition) and that there was no further mention of a back condition in service until May 1982, when he reported a fall. The provider observed that he was in service for an additional 3 years following the May 1982 record and there were no further entries of a back condition thereafter. The provider opined the Veteran’s current diagnoses are age-related due to normal wear and tear over time as well as related to a genetic component. DJD involved a chronic irritation with inflammation of the facet joints and DDD involves inflammation of the vertebral disc space and natural desiccation of the discs over time. It was explained that more than 50 percent of men over the age of 50 will have degenerative spine disease, regardless of prior injuries or chronic condition. The provider opined the laminectomy was performed due to spinal stenosis, which is directly related to the degenerative disc disease, and explained that a remote strain would not cause degenerative spine disease decades later, noting that for such to occur, the such injuries would have to involve the spinal column directly and not [just] musculature of the back. At the outset, it is noteworthy that determining this matter has been complicated by the Veteran’s failure to cooperate with VA attempts to obtain private treatment records pertaining to his low back workplace injury in 1990. The February 2019 Board remand noted that records pertaining to postservice treatment prior to the workplace injury could potentially show that an injury in service had not resolved. A September 2019 VA letter to the Veteran requested him to submit authorizations for VA to obtain records from all health providers who have provided treatment for his low back postservice (particularly prior to his workplace injury, those pertaining to that injury, and those pertaining to his surgeries and pre-surgical consultations). He has not responded; it is assumed that no such records exist (or that any existing records do not support his claim). Regardless, VA cannot acquire any such records for consideration without his authorization. It is not in dispute that the Veteran now has a low back disability, to include DDD and DJD (first diagnosed decades following his honorable period of active duty service from October 1975 to October 1978). The record does not show (and the Veteran does not allege) that his current lumbar spine disability was manifested in service or that arthritis of the low back was manifested in the first year following his honorable period of service. While he was seen for various low back pain complaints during his honorable and dishonorable periods of service, he denied back pain on his December 1983 separation examination. Accordingly, service connection for a chronic back disability on the basis that such disability became manifest in service and persisted, on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303 (b), is not warranted. What remains for consideration is whether there is competent evidence of a nexus between his honorable period of service (and complaints therein) and his current low back disabilities. The diagnosis and etiology of a low back disability are medical questions that require competent medical evidence. See Jandreau, 492 F.3d at 1377. The preponderance of the competent (medical) evidence is against a finding that the Veteran’s current low back disabilities are etiologically related to his honorable period of service. The Board finds the opinion by the September 2020 consulting provider to be probative and persuasive. The consulting provider provided a detailed rationale for the opinion against the claim (that his lumbar muscle strain and complaints of back pain in service did not lead to a chronic impairment or chronic residuals). The provider found his low back disability to be age-related (not due to trauma from his honorable period of service). The provider opined that the one complaint during the honorable period of service (noted in his STRs) would not be the etiology of his DJD, DDD, and stenosis (diagnosed decades later), explaining explained that the back problem during his honorable period of service involved the musculature of the back rather than his spinal column directly and was acute in nature. The provider further explained that DDD and DJD is found in persons of an older age and, citing to medical principles, how it develops over time due to wear and tear. The VA consulting provider is a medical professional, and is competent to offer the opinion, and the opinion reflects a familiarity with the Veteran’s entire record and includes rationale that cites to both supporting factual data and medical principles. The opinion is probative evidence in the matter. The Veteran has not submitted competent (medical opinion or treatise) evidence to the contrary, and the Board finds it persuasive. The Veteran’s own assertions in essence to the effect that his current low back disabilities are related to his honorable period of service are not competent evidence in the matter, and has no probative value. The preponderance of the evidence is against a finding that the Veteran’s current low back disability is etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.