Citation Nr: 21026896 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-22 001 DATE: May 4, 2021 ORDER Service connection for low back disability (other than pre-existing thoracic scoliosis), to include degenerative disc disease (DDD) and osteoarthritis of the lumbar spine, is denied. FINDING OF FACT The Veteran's low back disability (other than pre-existing thoracic scoliosis) was not shown in service, was not manifested within a year from service or for many years thereafter; and has not been found to be etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for low back disability (other than pre-existing thoracic scoliosis) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1967 to May 1970 and from September 1971 to December 1976, to include service in the Republic of Vietnam. This matter is on appeal to the Board of Veterans' Appeals (Board) from a February 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). By way of history, in an August 2015 decision, the Board denied service connection for a low back disability. In October 2016, the Veteran appealed the Board's August 2015 decision to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. The Court's Order vacated, in part, portion of the Board's decision which denied service connection for a low back disability and remanded the matter to the Board for consideration consistent with the terms of the joint motion. The issue was remanded by the Board in June 2017, September 2019, and October 2019. Most recently, in an April 2020 decision, the Board bifurcated the claim to separately address the back disorder that was noted at entry (scoliosis) and those that were not (DDD and osteoarthritis). Specifically, the Board denied service connection for pre-existing thoracic scoliosis and remanded the claim for a low back disability, to include DDD and osteoarthritis of the lumbar spine. The matter has returned to the Board for adjudication of the claim for a low back disability (other than pre-existing thoracic scoliosis). SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). Entitlement to service connection for a low back disability. As noted in the Introduction, by decision issued in April 2020, the Board bifurcated the Veteran's claim and denied service connection for pre-existing thoracic scoliosis and remanded the claim for a low back disability, to include DDD and osteoarthritis of the lumbar spine. Accordingly, for purposes of this decision, the Board's discussion will consider whether service connection is warranted for currently diagnosed back disabilities of DDD and osteoarthritis (other than pre-existing thoracic scoliosis). The Veteran contends that his back disabilities of DDD and osteoarthritis are related to service, or in the alternative, secondary to his service-connected disabilities. While the record shows a current diagnosed lumbar spine disability, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran's diagnosed DDD and osteoarthritis of the lumbar spine began during service or are otherwise related to an in-service injury, event, or disease, or secondary to a service-connected disability. The Veteran's service treatment records contain no reference to any specific disc disease or injury affecting the Veteran's lumbar spine. Notably, post-treatment records show that in 1980 he suffered an accidental gunshot wound and that he was involved in a work-related trauma in 1986 when a tree fell on him resulting in multiple fracture, to include a fracture of the transverse process of the left L1-L4. During a May 2002 VA general examination, the Veteran reported that he had experienced chronic back problems since the 1986 accident where he was working as a tree cutter at the time. See VA treatment records of February to May 2002. The Board's October 2019 remand specifically asked a medical professional to address the question of to "what extent is the Veteran's current back disability attributable to [pre-existing] scoliosis and to the fractures incurred in a post-service accident in 1986?" The record shows a January 2020 VA medical opinion where a VA physician responded, "[t]he veteran is noted to have experienced fractures of transverse processes of lumbar vertebrae in 2002. He states to me today that in addition to scoliosis he has degenerative disc disease. Therefore, it is impossible to attribute degrees of responsibility for his back condition to DDD, scoliosis, and previous fractures if lumbar transverse processes." See VA medical opinion dated January 2020. As noted in the Introduction, in April 2020, the Board denied service connection for pre-existing scoliosis and remanded the claim for low back disability, to include degenerative disc disease and osteoarthritis, other than thoracic scoliosis. The Board noted the Veteran was currently service-connected for degenerative joint disease of the left knee, anxiety disorder, sleep apnea, tinnitus, right ear hearing loss and erectile dysfunction. To specifically address the claim for low back disability other than thoracic scoliosis, the Veteran was afforded a VA contract examination in April 2021, which the Board finds significantly probative. For direct service connection, the April 2021 examiner concluded that the claimed back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner indicated the "Veteran had symptomatic scoliosis prior to entering service. While this medical opinion was requested without the diagnosis of thoracic scoliosis it is pertinent to the other back diagnoses. Scoliosis is a condition that gets worse over time and is known to cause arthritis in the spine as well as disc degeneration which is the case for this Veteran." The examiner noted review of claims file which include X-ray of lumbar spine dated January 2011 shows arthritis and DDD and another X-ray of thoracic spine dated January 2011 shows arthritis, DDD, and scoliosis. The VA examiner indicated current diagnoses of thoracic scoliosis, DDD/IVDS of thoracolumbar spine, arthritis of thoracolumbar spine, and bilateral lower extremity radiculopathy are less than not incurred in or caused by service. The examiner added that "[t]here is insufficient evidence of record that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service." See Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) and Medical Opinion dated April 2021. The same VA contract examiner rendered an opinion for secondary service connection finding it less likely than not that the Veteran's claimed disability is proximately due to or the result of service-connected disability. In the rationale, the examiner noted review of the claims file and found "[n]one of the service connected diagnoses is known to cause the Veteran's diagnoses of thoracic scoliosis, DDD/IVDS of thoracolumbar spine, arthritis of thoracolumbar spine, and bilateral lower extremity radiculopathy." Id. Additionally, the VA examiner addressed aggravation of a nonservice connected condition by a service connected condition, finding it less likely than not that the Veteran's claimed back disability was aggravated beyond the natural progression of the disease by a service connected condition. In the rationale, the examiner found "[i]nsufficient evidence of record to support claim including service treatment records and records following separation from service that could be used as a basis of determination for aggravation. Id. The Board assigns significant probative value to the above April 2021 medical opinions. The Board observes that the VA examiner's opinions are based on a comprehensive review of the Veteran's claims file, consideration of lay evidence of record, and provide sufficient rationale to support the examiner's conclusions. The opinions provide substantial reasoning and explanation as to why the Veteran's claimed back disabilities including DDD and osteoarthritis are not related to service or aggravated by a service-connected disability. The opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appear to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the April 2021 VA medical opinion. The Board has also considered whether the presumption of service connection has been established under 38 C.F.R. § 3.303(b). Although arthritis may be considered a chronic disease for VA purposes, arthritis was not clinically shown to a compensable degree within one year following the Veteran's 1976 discharge from service. 38 C.F.R. § 3.307(a)(3). Here, arthritis was noted in X-rays of the lumbar spine taken in January 2011, approximately 35 years after service. Further, medical records within one year of following service do not reflect any problems related to arthritis. There is also no persuasive credible lay evidence that arthritis manifested to a compensable degree within one year following the Veteran's discharge from service. Accordingly, service connection on a presumptive basis has not been shown and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.307. Additionally, consideration has been given to the Veteran's assertions that his claimed back disabilities are related to service. However, the Board observes that the Veteran, as a layperson, is not competent to independently opine as to the specific etiology or render a medical nexus of a disability to a service-connected disability, as such requires medical expertise and the ability to interpret diagnostic medical testing, including radiographic studies. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Veteran's assertions do not constitute competent medical evidence and the Board assigns more weight to the medical evidence of record, including the April 2021 VA opinion provided by a medical professional. After weighing all the evidence of record, the Board observes that the medical and lay evidence stand uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated the claim for service connection. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for low back disability (other than pre-existing thoracic scoliosis), including DDD and osteoarthritis. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.