Citation Nr: 21027604 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-20 278 DATE: May 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's low back disability did not have its onset in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38U.S.C. §§1101, 5103,5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the record. In August 2019, the Board issued a decision denying entitlement to service connection for a low back disability. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a June 2020 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's August 2019 decision and remanded the case for action consistent with the JMR. The Board, in turn, remanded the claim to the agency of original jurisdiction (AOJ) in December 2020 to comply with the Court-granted JMR. That further development has since been completed, so now this claim is again before the Board. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Among the diseases listed for which a nexus will be presumed include arthritis. See 38 C.F.R. § 3.307, 3.309. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A Veteran may be competent in certain situations to provide a diagnosis of a simple condition; however, a Veteran generally is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for a low back disability The Veteran contends that his in-service duties have caused his current back disability. A February 2021 VA Back Conditions examination indicates the Veteran has degenerative disc disease. Thus, the Board recognizes the Veteran has a diagnosis of the disability claimed. The question becomes whether it is causally connected in any way to the Veteran's active service. The Veteran testified that his back disability resulted from lifting heavy artillery shells during service. See March 2019 Hearing Transcript p. 3. His service treatment records, however, do not show any complaints, treatment or diagnoses related to a back disability. Applicable clinical evaluation was normal throughout service. A separation examination from January 1972 also does not show any back issues. Further, a retention examination for the Army Reserves in 1976, showed normal spine and no recurrent back pain. In his March 2016 Notice of Disagreement (NOD), he indicated that he was not treated in service, but self-medicated during and after service. At the Board Hearing, the Veteran testified that he sought treatment for his back just after service in the late 1970s, however, the doctor has since passed away. Post-service, the Veteran stated that he worked "banding up tires" and for 17 years, he worked as a school custodian, sweeping floors, and taking out trash, however testified that it did not require heavy lifting. The Veteran was afforded a VA examination for his back on February 2021. The Veteran was diagnosed with degenerative disc disease other than intervertebral disc syndrome. The examiner, however, found that this condition was less likely than not incurred in or caused by the in-service injury. He noted a lumbosacral spine x-ray from August 1995 showed the Veteran had some degenerative disc disease change in the lower thoracic and mid lumbar spine and an October 2015 MRI showed disc herniations. The examiner noted the Veteran's job history included custodian at a middle school, i.e. a manual laborer. The examiner considered the Veteran's MOS and his lay statements of lifting artillery shells and not reporting his injuries but rather taking over-the-counter medication for his back pain. However, there was no record in STRs that the Veteran had any back trouble Additionally, his 1976 annual examination, which was 4 years after active service, showed no back problems. The earliest medical record of a back problem was in the mid-1990s. Thus, the examiner opined that he was unable to connect the Veteran's low back disability to service. The Veteran also stated he had seen a chiropractor, who told him his back was "worn out." The Veteran was asked to identify any private records; however, he did not respond to the RO's requests. See December 2020 Subsequent Development letter. Thus, the Board finds there is no probative medical evidence that the Veteran's current low back disability is related to an in-service low back injury. The February 2021 VA examiner essentially stated that the Veteran's current disability is not related to heavy lifting in service. To the extent that the Veteran contends that he has experienced low back symptomatology since his service discharge, the Board finds such statements to lack credibility and, therefore, accords little probative weight to such contentions. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, as noted, the Veteran testified during the March 2019 Board hearing that he has experienced low back pathology since his injury in service. The Board finds the Veteran's statements regarding continuity of symptomatology to be not credible as they are inconsistent with the other evidence of record. Although the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Veteran did not report any low back complaints on the January 1972 separation examination nor on his 1976 annual examination. Further, he specifically certified as true and complete to the best of his knowledge in 1976, that he never had recurrent back pain. This contradicts what he now contends to be the case. Likewise, the first medical evidence of lumbar spine pathology was in VA treatment records dated in 1995, which was over 20 years after his service discharge in January 1972. The Veteran claims he saw a doctor soon after service but could not provide records as the doctor has passed away. He also claims he saw a chiropractor but has not identified the records. Additionally, there are no medical opinions that link the Veteran's back disability to service. The only medical opinion of record, the February 2021 VA examination, is negative for a nexus to service. As such, the Veteran's lay assertions of continuity of such symptomatology are less credible and persuasive in light of the evidence of record, and are, in fact, outweighed by this evidence. Consequently, based on the foregoing evidence, the Board finds that the Veteran's statements regarding continuity of low back symptomatology to be not credible. To the extent the Veteran believes his low back disability is related to an in-service injury, event, or disease, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. As such, the preponderance of the evidence is against service connection for a low back disability. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.