Citation Nr: 21024780 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-23 332A DATE: April 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran’s degenerative arthritis of the spine manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1978 to June 1979. In addition, the Veteran had service in the National Guard. This matter comes before the Board of Veterans’ Appeal (Board) from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge (VLJ) at an August 2019 video conference hearing. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in February 2020 and was remanded for additional development. The Veteran was afforded a VA examination in March 2020. The Board notes as part of the prior remand the representative was to be mailed a copy of the August 2019 Board hearing transcript. The representative was sent an electronic copy of the Veteran’s claims file in December 2020 as part of a separate pending privacy act request, and the Board finds such has satisfied the prior remand directives. Moreover, the representative has had access to the VBMS electronic file since at least September 2018. As such, the directives having been substantially complied with the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board notes that the Veteran has several separate legacy appeals that will be part of future Board decisions. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(1) the 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Entitlement to service connection for a low back disability The Veteran contends that service connection is warranted for a low back disability. The Veteran reports that his ongoing back pain is related to service and that he has had ongoing symptomology since service. The Veteran testified in August 2019 before the undersigned VLJ to an in-service injury while doing hand to hand combat exercises and was given bed rest in the barracks for 4 days. He also testified about an injury while lifting a refrigerator and carrying it down a flight of stairs. The Veteran reported ongoing low back pain and symptoms since service which have worsened over time. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a low back disability that began during service, manifested during the applicable presumptive period, or is at least as likely as not caused by an in-service injury or disease. The Veteran has a diagnosis of degenerative arthritis of the spine. The Veteran’s service treatment records (STRs) have been associated with the claims file. At separation in May 1979 on the report of medical examination clinical evaluation of the spine and musculoskeletal system was normal. At separation in May 1979 on the report of medical history the Veteran denied arthritis and bone joint or other deformities but noted yes to recurrent back pain. Clinical examination noted a review of the Veteran’s reports and symptoms of recurrent back pain and found that these abnormalities did not indicate a real pathology and appeared to reflect a state of anxiety. The Veteran previously submitted a claim for service connection for a low back condition in June 1985. The Veteran was afforded a VA examination in August 1985. The Veteran reported a prior back injury in-service. Physical examination noted a normal gait and posture. The examiner noted no limp, gait or guarding and the Veteran was agile in ambulation. No lumbar curve or tenderness of the back was noted. The straight leg raise test was negative bilaterally. Range of motion testing was normal. Deep tendon reflexes of the upper and lower extremities were normal. The examination noted no objective findings of a back condition on examination. STRs note in February 1991 a medical examination for enlistment into the Army National Guard noted a normal clinical evaluation of the upper extremities, lower extremities, spine and musculoskeletal system. In a February 1991 report of medical history for enlistment into the Army National Guard the Veteran denied arthritis, bone joint or other deformity or recurrent back pain. Based on the Veteran’s statements and testimony the Board finds an in-service low back injury, but that residual symptoms and limitations of function were not present at the time of discharge and any discomfort or loss of function had resolved. The Veteran underwent a VA examination in December 2012. The Veteran reported low back pain and pain radiating down his legs, with the right worse than left. The examiner noted degenerative disc disease of the lumbar spine and radiculopathy. The Veteran reported that he believes he may have fallen on his back awkwardly in hand to hand combat exercises and was treated for a lumbar strain while in-service. The Veteran reported flare ups of the low back with prolonged standing and he is unable to perform lifting or prolonged standing with flare ups. Range of motion testing noted forward flexion to 60 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 25 degrees with pain throughout. Repetitive use testing noted no additional loss of motion. Functional loss was noted with less movement than normal, pain on movement and interference with sitting, standing and/or weight-bearing. Tenderness and pain on palpation was noted. Muscle spasms with guarding but without an abnormal gait or spinal contour was noted. Muscle strength testing was 5/5, with no muscle atrophy. Deep tendon reflexes were normal as was a sensory exam. A bilateral straight leg test was negative. Mild right lower extremity radiculopathy was noted. Constant use of a cane was noted. Imaging noted arthritis. The examiner noted that the Veteran’s low back disability impacts his ability to work in that he is unable to perform activities that require prolonged standing, walking or lifting. The VA examiner found that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran has degenerative disc disease of the lumbar spine. He had no specific injury that would predispose him to develop degenerative disc disease of the lumbar spine. Rather his current degenerative disc disease is likely due to normal wear and tear. A September 2019 private opinion has been associated with the claims file. The private opinion noted a review of the Veteran’s reports of his in-service injury and review of post-service treatment records. The private opinion noted that the Veteran had a service-connected back injury as a result of carrying a refrigerator, which led to his chronic painful degenerative disc disease at L4-L5 and L5-S1. The opinion noted that the Veteran has experienced frequent loss of gainful employment as a result of his service-connected thoracolumbar spine condition causing him to be unable to maintain gainful employment. The Board finds this opinion is entitled to less probative weight as the private opinion failed to provide a thorough and reasoned rationale for the conclusions reached. This private opinion appears to be based strictly on the Veteran’s reports of in-service treatment and are not consistent with the statements made by the Veteran during discharge and on enlistment in the National Guard. The Board has considered the September 2019 private opinion but finds such is entitled to less probative weight. Then the Veteran was afforded a VA examination in March 2020. The examiner noted review of the claims file. The examiner noted degenerative arthritis of the spine. The Veteran reported chronic low back pain which began during basic training in 1978 after he strained his lower back. Additionally, the Veteran reported that his back pain occurred again after lifting a refrigerator while stationed in Germany. The Veteran reported that his pain has continued to worsen over the years, and he has continued to have ongoing constant pain. The Veteran denied flare ups. The Veteran reported functional loss with pain with bending as well as with rest and that he uses a cane almost all of the time. Range of motion testing noted forward flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees and right lateral rotation to 25 degrees and left lateral rotation to 15 degrees, with pain. Passive range of motion testing did not result in pain, nor did non-weight bearing testing. The Veteran was unable to do repetitive use testing due to being in too much pain in doing just one repetition. No guarding or muscles spasms were noted. Muscle strength testing was 5/5, with no muscle atrophy. Deep tendon reflexes were absent in the knee and ankle. A sensory exam was normal. A bilateral straight leg raise test was negative. No ankylosis was noted. Imaging noted arthritis. The examiner noted that the Veteran’s low back disability does impact his ability to work in that he experiences significant pain with bending and uses a cane to ambulate which causes him difficulty in carrying objects. The examiner found that it was less likely than not that the Veteran’s low back disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran does objectively appear to have a low back condition, however there is no objective documentation that the initial injury occurred while in active service from 1978 to 1979. Further, a second enlistment examination in 1991 when the Veteran was entering the National Guard shows a normal back examination without any chronic back history. As such, the examiner found that the claimed low back condition with arthritis was less likely than not caused by an in-service injury nor such manifest within a reasonable time frame thereafter. The examiner noted at separation in 1979 clinical evaluation was normal and at entrance to the National Guard in 1991 clinical examination was normal. VA and private treatment records have been associated with the claims file. A review of these records shows that the earliest self-reports of back symptomology began in April and May 1985. The Veteran reported hurting his back 5 to 6 days earlier after moving furniture, and the Veteran also reported a low back injury in-service in 1979. April 1986 private treatment records noted that the Veteran reported he has had some back and pain probably has a possible central bulging disc posteriorly L5-S1. The Veteran reported injuring his back in 1979 in-service and then again post service in 1983, and again working on a car the week prior. VA treatment records in August 2002 note an acute exacerbation of low back pain after lifting something heavy. These treatment records do not contradict the VA examinations and are absent indications between the Veteran’s current back disability and an in-service disease or injury. The Veteran’s representative in November 2020 correspondence has vaguely raised the issue relating to the VA examiners qualifications presumably seeking to challenge the competency and qualifications of the prior VA examiners. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the most recent VA examiner, or any VA examiner. The representative did not indicate which appeal or which examination was the subject of the request as many are of record. Moreover, the request was in advance of a pending hearing on other issues. In other words, the Veteran has not satisfied the requirement of raising a specific challenge to a VA examiner’s competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner’s qualifications. Id. It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner’s competence in the first instance, then VA is not required to prove any examiner’s competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway, supra. The Veteran’s representative has provided no specific challenge to the VA examiner’s qualifications, but rather contends that she does not have the necessary information to form a challenge so as to begin to identify potential inadequacies in the examiner’s qualifications. The Board disagrees with an obligation to provide any additional information not already of record. The examiner noted that he is a physician with a doctoral degree in medicine with practice area of family medicine. The examiner provided his address, a state license number, and a National Provider Identifier number with which the representative can obtain public information on the VA examiner’s qualifications. All VA examiners are presumed to be competent - and their medical opinions, in turn, are assumed to be adequate - absent specific evidence to the contrary. See Nohr v. McDonald, 27 Vet. App. 124, 131-32 (2014) (quoting Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir.2013) (“It is now well settled that ‘VA benefits form a [rebuttable] presumption that it has chosen a person who is qualified to provide a medical opinion in a particular case.’”). The Board finds that the Veteran’s representative’s boilerplate correspondence with general assertions and request for documentation including the examiner’s curriculum vitae and other documents is insufficient. First, the Veteran and/or his representative have not set forth any specific reason why the VA clinician is not qualified to give a competent opinion or capable of providing medical diagnoses. The Veteran has simply demanded that VA provide her information in order to form a challenge. The Veteran has in fact not yet raised any specific challenge or even clearly identified the examination and disability involved. Instead, the argument focuses on the examiner’s opinions, indicating general disagreement with the conclusions, and the Board has thoroughly addressed the adequacy of the opinions above, herein. Thus, the Veteran’s representative’s assertion lacks the necessary specificity with respect to the competency of the examiner. Nohr, supra. Secondly, the representative has not submitted any evidence to contradict the conclusions of the examiner and thus call into question his competency. The Board finds that the most recent examiner in March 2020 is a licensed medical family practice physician as indicated on the examination report and that he performed an adequate in person examination and provided an opinion with rationale. This is sufficient for the representative to challenge any qualifications. Lastly, the examiner is a medical doctor, has been designated as a Compensation and Pension examiner, and there is no indication that he does not have the requisite medical knowledge to conduct VA examinations, issue medical opinions, and diagnose disabilities. Additionally, the examiner’s opinions were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and provided detail sufficient to allow the Board to make a fully informed determination. The Board also finds that these non-specific boilerplate requests do nothing more than delay timely adjudication when there was adequate time for the Veteran and his representative to obtain a private examination and opinion from a medical specialist if so desired. The Veteran’s representative’s request for a curriculum vitae and other documents, standing alone, is insufficient to rebut the presumption of regularity. Crain v. Principi, 17 Vet. App. 182 (2003) (holding that “clear evidence to the contrary” is required to rebut the presumption of regularity); see also Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Thus, a response to the representative’s request, which would delay the issuance of a decision, is not warranted under the circumstances. Further, while the Board has considered the representative’s general contentions that service connection is warranted. However, the Board finds these contentions are not supported by the probative evidence of record. Opinions must be made by competent professionals based on a rationale that is clear to the Board. Evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). In addition, VA benefits may not be granted based on speculative opinions. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102 (2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a low back disability is warranted. The Board concludes that service connection for a low back disability on a direct basis is not warranted as the Veteran’s current low back disability was not caused by service. The Veteran’s lay statements regarding his current symptoms, in-service events and ongoing symptomology are warrant low probative weight. While the Veteran reports that his current low back disability is generally related to service and an in-service injury the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence including specifically the VA examination in March 2020 is entitled to significant probative weight. Taken, in consideration together the Board finds the December 2012 and March 2020 VA examinations are entitled to significant probative weight. The VA examiner in December 2012 examiner found that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran has degenerative disc disease of the lumbar spine. He had no specific injury that would predispose him to develop degenerative disc disease of the lumbar spine. Rather his current degenerative disc disease is likely due to normal wear and tear. The VA examiner in March 2020 found that it was less likely than not that the Veteran’s low back disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted consideration of the Veteran’s lay statements and both in-service and post-service treatment. The examiner noted that the Veteran does objectively appear to have a low back condition, however there is no objective documentation that the initial injury occurred while in active service from 1978 to 1979. Further, a second enlistment examination in 1991 when the Veteran was entering the National Guard shows a normal back examination without any chronic back history. As such, the examiner found that the claimed low back condition with arthritis was less likely than not caused by an in-service injury nor such manifest within a reasonable time frame thereafter. The examiner noted at separation in 1979 clinical evaluation was normal and at entrance to the National Guard in 1991 clinical examination was normal. As such the Board finds that the Veteran’s current low back disability is less likely than not caused by active service. As to presumptive service connection, the Veteran’s degenerative arthritis of the spine did not manifest until many years post-service. The Board concludes that while the Veteran has arthritis, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did these manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran’s arthritis was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. At separation on the report of medical examination in May 1979 clinical evaluation of the spine and musculoskeletal system was normal. Service records do not support an onset of the Veteran’s arthritis in active service. Further, during clinical examination of the Veteran in 1991 for enlistment into National Guard service the spine and musculoskeletal system was normal. Based on the probative evidence of record the Board finds that the Veteran’s arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the weight of competent and credible evidence is against the Veteran’s claim for service connection for a low back disability. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.