Citation Nr: 21026635 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-28 607A DATE: May 3, 2021 ORDER Entitlement to service connection for a low back disorder, characterized as lumbar disc disease, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's low back disorder, characterized as lumbar disc disease, began in, or is related to active duty service. CONCLUSION OF LAW The criteria for service connection for a low back disorder, characterized as lumbar disc disease, have not been 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 from February 1969 to February 1971. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of Board remand orders in July 2018 and February 2021, both of which directed the Regional Office (RO) to complete additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a low back disorder, characterized as lumbar disc disease The Veteran asserts that service connection should be granted for a low back disorder, characterized as lumbar disc disease. Specifically, he claims that his low back disorder began in service as a result of working in the kitchen and warehouse where he undertook heavy lifting. After a review of the evidence, the Board finds that service connection is not warranted for the Veteran's low back disorder. As an initial matter, while the Board observes that the Veteran's service treatment records do include a singular complaint of back pain at his January 1971 separation examination, there are no other signs, symptoms, treatment, or a diagnosis of a disorder relating to the back listed. At his separation examination, the Veteran indicated that he was in good health. Furthermore, the examiner did not endorse or discuss a disorder of the back, much less the low back specifically, and marked the Veteran's spine as normal. The Veteran claimed service connection for a low back disorder in July 1971, shortly after his separation from service. At that time, he was provided with a VA examination in conjunction with his claim, at which the examiner noted that the Veteran was able to bend over with his fingers six inches from the floor with no pain in his lower back. While the examiner noted the Veteran's reported pain as a "small disability". It appears that the examiner was providing their best estimation of how the Veteran's reported symptoms, not observed at the clinical examination, would manifest in terms of impact. Moreover, there is no indication that the examiner endorsed any actual diagnosis. Following this examination, the Veteran's post service medical records are silent for any treatment of a low back pain or disorder until January 2008 when the Veteran underwent an MRI where lumbar spine discs were noted to be abnormal, leading to a diagnosis of lumbar disc disease. As such, while a current disability has been shown, there is no clinical evidence to reflect that Veteran's reported symptoms were continuous since active duty service. The Board recognizes the statements from the Veteran regarding his history of his low back symptoms since service. While he is competent to testify as to facts which they experienced or witnessed firsthand, such as pain or stiffness, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the reported history of continued symptomatology since active service, while competent, is nonetheless insufficient in establishing a relationship between the Veteran's low back disorder and service. Specifically, the large gap in time between the Veteran's active duty service and 2008 diagnosis of lumbar disc disease weighs heavily against his claim. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Additionally, there is no indication that the back pain complained of by the Veteran at his 1971 separation examination is in any way related to his current disorder as there were no diagnoses made at that time or prior to 2008 and no medical records indicating continuous treatment or symptoms before 2008. Next, although continuous symptoms have not been shown, service connection may nonetheless be established if the evidence otherwise indicates a nexus between active duty service and his current symptoms. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran's low back disorder. To this end, the Veteran was provided with VA examinations in April 2019 and March 2021 to determine the nature and etiology of his low back disorder. The April 2019 examination was determined to be inadequate for adjudication purposes by the February 2021 Board remand and will therefore not be considered in this decision. At the March 2021 examination, the Veteran reported constant back pain with flare-ups resulting in a loss of functional use and range of motion, and also noted difficulties with prolonged walking and standing. After a thorough examination, examiner opined that the Veteran's low back disorder was less likely than not related to his active duty service. In providing the opinion, the examiner explained that lumbar disc disease is a chronic condition that is linked with the natural aging process and exacerbated by age, obesity, and/or occupational history with age being the most important factor. The examiner also noted the large gap in time between the Veteran's active duty service and the 2008 diagnosis, and the lack of documented treatment during the intervening period. The Board also considered the opinion submitted by the Veteran from Dr. N.O., who opined that the Veteran's low back disorder was caused by his duties, including standing and lifting heavy objects, during his period of active service. However, this opinion holds much less weight than that provided by the March 2021 examiner, as Dr. N.O. did not perform a detailed examination of the Veteran's medical history and omitted discussion regarding the large gap in time between his active duty service and 2008 diagnosis. In arriving at this conclusion, the Board acknowledges the statements from the Veteran relating his low back disorder to his active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of his low back disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his service and his current disorder. While the Board does not dispute his sincerity in describing his symptoms, the weight of the medical evidence is against a finding that they are etiologically related to his active service. Therefore, the lay statements from the Veteran's that his low back disorder is related to his service are found to lack competency. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's low back disorder to an event, injury, or disease incurred in service. Accordingly, service connection must be denied. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor