Citation Nr: 21024354 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-06 019 DATE: April 22, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran’s lumbar spine disability is at least as likely as not related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 2005 to October 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. In June 2019, this matter along with service connection for a psychiatric disability was remanded for further development. A July 2020 rating decision grants service connection for a psychiatric disability. As such, this issue is no longer before the Board. 1. Entitlement to service connection for a lumbar spine disability Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258; 38 C.F.R. § 3.309(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that his current lumbar spine disability is due to his military service. 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. Although the Veteran has a current diagnosis of osteoarthritis of the lumbar spine, and he reports an in-service injury, the preponderance of the evidence weighs against finding that the current lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records (STRs) show normal spine evaluation on the January 2005 enlistment examination report. During the September 2006 separation examination although he reported recurrent back pain, clinical evaluation of the back was normal. Post-service treatment records include treatment from Ashtabula Chiropractic Clinic and Ashtabula Medical Center. A January 2009 treatment record shows the Veteran reports a back injury when he was 16 years old and fell on a trampoline. During March 2012 VA examination, the VA examiner indicated that the Veteran’s file was reviewed. Osteoarthrosis involving the lumbar spine with mild bilateral foraminal stenosis was diagnosed. The VA examiner further opined that the Osteoarthrosis involving the lumbar spine with mild bilateral foraminal stenosis was not caused by military service. He reasoned that there were no reported back injuries in service and there was no medical evidence to support exacerbation by military service beyond normal progression. In the June 2019 Board remand, the Board found that the evidence suggested that the Veteran had a pre-service back injury. The Board determined that the March 2012 VA examination inadequate. Indeed, although the examiners indicated that the Veteran’s back disability was not due to his military service; the examiner did not adequately address whether any claimed pre-existing disability was aggravated by his military service. As such, an adequate VA examination must be obtained. Pursuant to the June 2019 Board remand, another VA examination was obtained February 2020. The examiner reviewed the noted the medical situation that the Veteran injured his back at about age 12 on a trampoline and this acute injury healed. The examiner noted that there is nothing in the STRs to show a back problem or symptoms during service and then about 2 years later the medical records show the Veteran being seen for an acute back injury. The examiner noted that the back condition 2 years later looks like a new condition, medically unrelated to the injury at age 12. So, as this is a new condition (another back injury), then there is no aggravation. He noted that aggravation implies that there is some mild, smoldering condition waiting to be aggravated. In this case, the examiner indicated that the Veteran simply seems to have injured his back again, which has nothing to do with the first injury. He used the example of similar to catching a cold this year is not an aggravation of a cold one had when they were a child. They are both colds, but separate incidents. The examiner concluded there is not enough medical evidence to make a nexus for direct service connection or show aggravation of a pre-existing condition. The examiner’s opinion is probative, because 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). There is no competent opinion to the contrary. There is no evidence that the Veteran had a pre-existing pre-service back disability. As noted, the enlistment physical examination documented a normal spine evaluation. During separation examination, the Veteran’s spine evaluation was normal. The earliest post-service documentation of a disability of his back is documented in a 2009 treatment record related to a post-service back complaint 3 years post-service. Although the Veteran is competent to report having experienced symptoms of lumbar pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic lumbar disability. The issues are medically complex, as it requires knowledge of musculoskeletal system. Considering all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim. Although he is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.