Citation Nr: 21024185 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 07-04 427 DATE: April 22, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The most probative evidence does not establish that the Veteran’s low back disability is due to, the result of, or related to his active duty service, and the evidence is insufficient to establish degenerative disc disease of the lumbar spine manifested to a compensable degree within one year after separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in March 2016 for additional development. Specifically, the Board requested the RO to afford the Veteran with a VA examination and obtain VA treatment records and records from the Social Security Administration (SSA). A review of the record shows substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The case has been returned to the Board for review. In March 2016, the Board also remanded the issue of entitlement to nonservice-connected pension. In an October 2018 rating decision, the RO granted the Veteran’s claim to entitlement to nonservice-connected pension. As this decision represents a full grant of the benefit sought, this issue is no longer on appeal. Entitlement to service connection for a low back disability. The Veteran seeks service connection for a low back disability. Specifically, the Veteran contends that his low back disability is due to physical nature of his active duty service, including extensive marches, carrying very heavy gear for extended periods of time, running while wearing gear, forging through water while wearing full gear, training exercises with tanks, unloading heavy ammunition boxes, and the constant heavy work with his back as an infantryman. See January 2010 and May 2016 Statements in Support of Claim. The Veteran also contends his job involved frequent jumping up and down, riding in a jeep over rugged terrain, and hauling equipment; he also participated in frequent combat football as part of his unit’s recreational activities. See February 2012 Substantive Appeal. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as arthritis, 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; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran’s VA and private treatment records demonstrate the Veteran is currently diagnosed with chronic low back pain due to lumbar degenerative disc disease. See February 2009 VA treatment records; August 2009 private treatment records; August 2018 VA examination. Therefore, the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As to the second Shedden element, the Board finds that there was not an in-service event, injury, or disease. See Shedden, 381 F.3d at 1167. In that regard, the Veteran’s service treatment records are silent for treatment, complaints, or diagnosis for an injury or symptoms related to the Veteran’s low back disability. The May 1976 separation examination clinically evaluated that Veteran’s spine and musculoskeletal system as normal, and the Veteran did not report any symptoms or complaints related to his low back. See May 1976 Report of Medical History. The first indication of any complaints related to the Veteran’s low back is in October 2002 and January 2003 when the Veteran reported a sudden onset of pain, in part, of the left low back, more than 20 years after service. See October 2002 treatment record. In January and March 2003, the Veteran reported his back pain was related to his work. See January and March 2003 VA treatment records. At an August 2018 VA examination, the Veteran reported his current disability began in 2008. See August 2018 VA examination. A July 2009 VA treatment record notes the Veteran had back pain since October 2008. A December 2008 VA treatment record indicates an impression for degenerative disc disease, and approximate to the claim, an August 2009 private treatment record reflects the Veteran’s low back is secondary to degenerative disc disease. Moreover, the Veteran has not asserted he has experienced low back pain that began in service that has continued since his service. While not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor for consideration, and in this case, weighs against a finding of service incurrence and continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (stating that, when the Board uses the absence of evidence as negative evidence, there must be “a proper foundation…to demonstrate that such silence has a tendency to prove or disprove a relevant fact.”). The Board finds that it has not been demonstrated that the Veteran’s low back disability was disabling to a compensable degree within a year of the Veteran’s separation from active duty. Accordingly, the presumption of in-service occurrence is not applicable. See 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was afforded a VA examination in August 2018. The VA examiner noted the Veteran’s lay statements relating his low back disability to physical training throughout his active duty. See August 2018 VA examination. The Veteran reported onset of symptoms in 2008 and stated that it began with back pain. Id. The VA examiner opined that the Veteran’s low back disability is less likely than not incurred in or caused by an in-service injury, event, or disease. Id. As rationale, the VA examiner noted there was no in-service injury or condition likely to result in or predispose the Veteran to development of a back or spine pathology or the diagnosed condition; no complaints, treatment, or diagnosis of a back disability of any kind during service; symptoms began 30 years after service; and the condition is more likely due to aging. Id. The VA examiner reviewed the Veteran’s claims folder and medical record, considered the Veteran’s lay statements, and conducted an in-person examination. Id. To the extent the Veteran contends that his low back disability is related to service, the Board notes the Veteran is competent and credible to report certain symptoms, such as back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not been shown to possess the necessary medical expertise to be deemed competent to opine as to the etiology of his back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, there is no competent evidence of record relating the Veteran’s current back disability, to include degenerative disc disease, to his active duty service. The Veteran’s SSA records and private treatment records do not provide any indication the Veteran’s low back disability is related to his active duty service. As such, the Board finds the August 2018 VA examination and medical opinion to be adequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Veteran nor his representative has provided any evidence to the contrary. Consequently, the Board gives more probative weight to the competent medical evidence which includes the August 2018 VA examination that is against the Veteran’s claim for service connection than to the Veteran’s lay statements. Id. at 304. In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the Veteran’s claim for entitlement to service connection for a low back disability, to include degenerative disc disease. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit of the doubt doctrine does not apply. 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, service connection for a low back disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.