Citation Nr: 21024133 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-15 710 DATE: April 22, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1965 to July 1969, to include service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in June 2018 and June 2020 for additional development. It is now before the Board for further appellate review. Prior to the promulgation of a decision in the instant appeal, the Veteran’s regional office granted the issue of entitlement to service connection for a liver disability. As this award is favorable to the Veteran, the Board will not disturb this decision and will proceed with the analysis for the remaining issue of entitlement to service connection for a lumbar spine disability. 1. Entitlement to service connection for a lumbar spine disability The Veteran asserts that he is entitled to service connection for a lumbar spine disability due to herbicide agent exposure. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service in Vietnam has been previously verified for the appropriate timeframe; thus, exposure to herbicide agents has been presumed. The Veteran’s lumbar spine disability, however, is not on the list of presumptive diseases for herbicide exposure. Thus, the Board will determine whether entitlement to service connection is warranted on a direct basis. Review of the Veteran’s service treatment records (STRs) do not show documentation of complaints, treatment, or a diagnosis of back pain or a lumbar spine disability. The Veteran’s June 1969 separation examination was silent as to any current back disability; on his report of medical history at separation that same month, the Veteran denied suffering from “back trouble of any sort,” though he did note prior treatment for other disabilities. Private treatment records submitted in July 2019 document ongoing treatment for the Veteran’s lumbar spine disability. Records from Perry Chiropractic Health Center note that the Veteran reported pain in his back as a 6 on a scale of 1 to 10. He stated that his symptoms have been present since the date of onset in October 2012, and become worse with lifting, walking, stair-stepping, exercise, and household chores. The Veteran appeared for a VA examination in December 2020 to determine the nature and etiology of his lumbar spine disability. The examiner diagnosed the Veteran as suffering from degenerative arthritis of the spine and intervertebral disc syndrome. During the examination, the Veteran reported that his lumbar spine disability had its onset in 2005, but that he started developing back issues while in the service. He reported that he treats his back pain with Ibuprofen and sees a VA doctor every 6 months. The examiner opined that the Veteran’s lumbar spine disability was less likely than not related to his military service. Specific as to the contention between herbicide agent exposure and the Veteran’s back disability, the examiner acknowledged that herbicide agent exposure can have subsequent effects, but the examiner cited to medical literature to establish that the Veteran’s back disability is not related to that exposure. Upon reviewing all of the pertinent evidence of record, the Board finds that entitlement to service connection for a lumbar spine disability is not warranted. While the Veteran has a current diagnosis, there is no competent or credible evidence of an in-service incurrence, nor of a nexus. In this regard, while the Veteran was exposed to herbicide agents in service, he reported in his private treatment records and during his December 2020 VA examination that the date of onset for his lumbar spine disability was in 2005 and 2012, approximately 36 years after his separation from service. The Veteran did report at his VA examination that he began developing back issues while in service, however, on his separation examination and report of medical history at separation, he did not report any issues with his back. Between the reported dates of onset from the Veteran’s treatment records, the fact that the Veterans service treatment records show no complaints of or treatment for a back disability, the fact that the Veteran denied suffering from back pain on his report of medical history at separation, and that the Veteran’s report of medical examination at separation found no evidence of a current back disability, the Board finds no evidence of an in-service incurrence of a back disability. To the extent that the Veteran contends that his back pain started in service, the Veteran has not provided sufficient information or context for the Board to weigh his statement against the evidence of record. To the extent that the Veteran’s statement can be read as a contention of continuity, the Board finds such a contention not credible, given the findings noted in this paragraph. With regard to nexus, there is no competent evidence relating the Veteran’s current back disability to his active service. The Veteran’s contentions have largely been that his back disability is related to his exposure to herbicide agents. The December 2020 VA examination directly addressed this contention, noting that exposure to herbicide agents can lead to negative health effects, but citing to medical literature for the proposition that a back disability is not one of them. The Board finds this examination to be adequate, as it is based on a complete review of the Veteran’s history, directly considered his contention, and contained a sufficient rationale for the Board to weigh. The Board also finds this opinion to be probative, as it directly answered the question of whether the Veteran’s current disability could be related to his in-service herbicide agent exposure. There is no other competent evidence in the file relating the Veteran’s current disability to his active service. While the Board acknowledges the Veteran’s lay statements, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as it is medically complex. 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). Consequently, the Board gives more probative weight to the December 2020 VA medical opinion. Accordingly, the Board finds that entitlement to service connection for a lumbar spine disability is not warranted. The preponderance of the evidence is against the Veteran’s claim, and there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.