Citation Nr: 21028393 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-03 685A DATE: May 11, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a lumbar spine disorder that clearly and unmistakably preexisted service; there is no indication from the record that the Veteran's isolated diagnosis of spina bifida occulta in service in October 1974 persisted as a chronic condition that has continued during the appeal period, and there is no evidence that the Veteran had a diagnosable lumbar spine degenerative joint and/or disc disease prior to entering service. 2. A chronic, diagnosable lumbar spine disorder was not present during active duty; was not manifested to a compensable degree within one year from the date of separation from service in December 1976; and a lumbar spine disorder, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event of service origin. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1973 to December 1976. This matter was last before the Board in November 2020, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a February 2021 supplemental statement of the case continuing the denial of service connection, the case was returned to the Board for its adjudication. Entitlement to Service Connection for a Lumbar Spine Disorder The Veteran contends that he has a lumbar spine disorder that he incurred in service as a result of an in-service motor vehicle accident as well as an injury he experienced while playing flag football in service. In the alternative, he asserts that he developed a lumbar spine disorder after service that is nevertheless attributable to his service, to specifically include as due the physical demands of his duties as a solider. As a second alternative, the Veteran contends that he had spina bifida occulta prior to entering service that was aggravated by his service. At the outset, the Board notes that every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of available service treatment records reflects that the Veteran was evaluated as having no abnormalities of the spine on his December 1973 enlistment examination. Moreover, he reported that he had no history of recurrent back pain as well as no history of bone or joint deformity on the corresponding December 1973 Report of Medical History. Thereafter, the Veteran did not seek treatment for low back pain until October 1974, when he reported that he had been experiencing low back pain for the past week. An evaluation report reflects that the impression was low back pain, and he was assigned to light duty for two days. An X-ray examination report from October 1974 indicates that the Veteran was shown to have spina bifida occulta of the S1 vertebrae; otherwise the X-ray examination was unremarkable. The Veteran then did not receive any further treatment for low back pain until a May 1975 outpatient record, which shows that he complained of knee and back pain but was not given a formal diagnosis. There are no further documented complaints of or treatment for symptoms of a lumbar spine disorder. The Board highlights that no spine abnormalities were listed on the October 1976 separation examination. The Veteran also did not report any history of low back pain or other related symptomatology on the October 1976 Report of Medical History, and further signed his name to a December 1976 Statement of Medical Condition reflecting that his health had not changed since his separation examination. The Board also notes that the Veteran denied experiencing recurrent back pain and bone, joint or other deformity in a September 1978 Report of Medical History that he completed upon entry into the Army National Guard. No spine or back problems were noted on the corresponding September 1978 enlistment examination. Potential entitlement to service connection for spina bifida occulta as a preexisting disability was first evaluated by a VA examiner in a May 2018 VA examination. After reviewing the claims file, the examiner found no evidence that there was any current symptomatology attributable to the in-service spina bifida occulta diagnosis. On this basis, the examiner concluded that it was less likely than not that the Veteran experienced any superimposed disease or injury that resulted in additional disability from the spina bifida occulta. Pursuant to the Board's November 2020 remand instructions, the question of whether the Veteran's spina bifida clearly and unmistakably preexisted service was addressed by a VA examiner in February 2021, who determined that there was no clinical evidence of a currently diagnosed spina bifida occulta condition. That being said, the examiner proceeded to then opine that the spina bifida occulta condition clearly and unmistakably preexisted service but offered no rationale in support of that conclusion. However, even though the examiner acknowledged that the spina bifida occulta preexisted service, they found no evidence that the condition was aggravated by service and noted the lack of continuing treatment for low back symptomatology in service to support that conclusion. Ultimately, the Board does not find that any basis upon which to grant service connection for the spina bifida occulta that was diagnosed during service. At no point in the Veteran's medical history has spina bifida occulta ever been diagnosed after the isolated instance in service in October 1974. During the appeal period, the Veteran's low back pain has been attributed solely to diagnosed degenerative joint disease of the lumbar spine. Furthermore, at no point has any treating physician ever linked the spina bifida occulta diagnosed during service to the Veteran's post-service complaints of lumbar spine symptomatology, first evaluated in April 2010, over 30 years after the spina bifida occulta was documented. Therefore, the Board does not even need to reach the question of whether the spina bifida occulta preexisted service, as there is no indication that the condition continued as a chronic, diagnosable disability following the finding on the October 1974 X-ray examination or during the appeal period beginning with the Veteran's January 2010 claim. Moving on, entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Thus, the question for the Board is whether the Veteran developed a lumbar spine disorder in service as a result of an event or injury, to specifically include a purported in-service motor vehicle accident and/or an injury he experienced while playing flag football. In the alternative, the question for the Board is whether the Veteran's currently diagnosed lumbar spine disorder is nevertheless attributable to an in-service injury, event or disease. During the appeal period, the Veteran was first afforded a VA examination to evaluate the nature and likely etiology of the claimed lumbar spine disorder in April 2010. He reported that he injured his back while riding in a jeep in service and that he had been experiencing back pain ever since service, although he acknowledged that he did not seek treatment for back pain until 2009 when he fell off of a ladder. After a thorough in-person evaluation, the examiner set forth a diagnosis of degenerative joint disease of the lumbar spine. The examiner then opined that it was less likely than not that the lumbar spine disorder was incurred in or was otherwise attributable to service, and noted that the Veteran experienced multiple traumas to his back after service that more likely caused the currently diagnosed lumbar spine disorder. The Veteran was next afforded a VA examination to evaluate the nature and etiology of the lumbar spine disorder in May 2018, during which he reported that his chronic low back pain began in the late 1990's or early 2000's. According to the Veteran, he injured his back in a fall in service and was prescribed medication for his low back pain. After a thorough in-person evaluation, the examiner affirmed the diagnosis of degenerative joint disease and added degenerative disc disease of the lumbar spine. The examiner then opined that it was less likely than not that the lumbar spine disorder was incurred in or was otherwise attributable to service. In support thereof, the examiner acknowledged that the Veteran received treatment for low back pain in service but found no evidence of a chronic lumbar spine disorder diagnosis. Instead, the examiner found it far more likely that the documented post-service back injuries caused his later development of degenerative joint and disc disease. Pursuant to the Board's remand instructions, the Veteran was scheduled for a VA examination in February 2020 to evaluate the nature and etiology of the lumbar spine disorder, during which he reported that he injured his back in service while playing flag football and that he had been experiencing back pain ever since this injury. After a thorough in-person evaluation, the examiner affirmed the diagnosis of degenerative joint disease. The examiner then opined that it was less likely than not that the lumbar spine disorder was incurred in or was otherwise attributable to service. In support thereof, the examiner merely stated that there was no evidence of a chronic condition related to the low back pain noted in service. The likely etiology of the lumbar spine disorder was most recently evaluated in a series of opinions obtained by the AOJ as responsive to the Board's November 2020 remand. As detailed by the chosen VA examiner in an January 2021 addendum opinion note, the Veteran self-reported that he remembered that his back hurt after he was involved in a motor vehicle accident in service in either 1974 or 1975. According to the Veteran, he did not experience chronic low back pain in service. After reviewing the claims file, the VA examiner continued the diagnosis of degenerative joint disease of the lumbar spine. Thereafter, in a subsequent February 2021 addendum opinion report, the same VA examiner opined that it was less likely than not that the low back disorder was incurred in or otherwise attributable to service, to include the reported in-service motor vehicle accident as well as the Veteran's duties as a tactical wire specialist and light weapons infantryman. In support thereof, the examiner detailed the Veteran's history of in-service treatment for low back pain and found no evidence that these isolated instances of treatment were chronic in nature. Specifically, the examiner highlighted the lack of a documented diagnosis of a lumbar spine disorder on the October 1976 separation examination as well as the Veteran's own report on the October 1976 Report of Medical History that he had no history of low back symptomatology during service. The examiner also noted review of medical literature submitted by the Veteran's representative, and found that, although the Veteran's duties in service are known to contribute to the development of lumbar spine osteoarthritis, there was no indication from the record that his degenerative changes of the lumbar spine were caused by in-service activities that occurred many years prior. A review of available VA medical records shows that the Veteran sought treatment for low back pain in November 2005 after twisting his back while moving things. No disability was diagnosed at this time. Thereafter, an October 2009 outpatient record shows that the Veteran complained of experiencing radiating low back pain for the past four months following an injury at work when he fell off of a ladder. Subsequent medical records show that the Veteran has continued to receive periodic treatment through VA for low back pain for the entirety of the appeal period; at all times this back pain has been associated with the 2009 ladder fall injury. A May 2013 MRI examination revealed epidural lipomatosis as well as mild-moderate spinal stenosis. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a low back condition. The Board accepts that the Veteran has submitted several research articles which he purports suggest a connection between his military occupational duties and his later development of a lumbar spine disorder. However, while the subject of the submitted medical literature is sufficiently similar to the issue on appeal, generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks, 12 Vet. App. at 316-17. Here, no such medical opinion has been associated with the record. Furthermore, the Veteran's contention that his lumbar spine disorder is attributable to his service was expressly refuted by each of the VA examiners who opined as to the likely etiology of the currently diagnosed lumbar spine disorder. Each of those examiners indicated that they reviewed the claims file, and most of them carried out an in-person evaluation of the Veteran prior to setting forth their opinion. Moreover, each examiner noted that the Veteran experienced multiple post-service traumas to his back prior to complaining of experiencing chronic low back pain, and each examiner accordingly found this history of low back trauma to be far more likely to have caused the Veteran's current lumbar spine disorder. The Board finds that the opinions of the April 2010, May 2018, and February 2021 examiners, supported as those opinions are by a thorough rationale with reference to the Veteran's medical history, are highly probative of the issue at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The Board also highlights that the February 2021 examiner explicitly discussed the Veteran's submitted research and discounted that the Veteran's in-service work duties could cause him to develop a lumbar spine disorder that was not diagnosed for more than 30 years after his discharge from service. The Board has placed primary emphasis on this opinion, based upon a claims file review and as responsive to the Board's remand instructions, as the most probative opinion of record. The Board acknowledges that the Veteran has consistently maintained that his lumbar spine disorder either manifested in service or is attributable to his service. He is competent to report on his symptoms of low back pain and when those symptoms began to manifest. Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence in the record which indicates that the Veteran through training or credentials is competent to conclude that his lumbar spine disorder is attributable to his service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Ultimately, the Board finds that the preponderance of the evidence, to include the highly probative VA examiner opinions of record, weighs against a determination that the Veteran had a diagnosable chronic lumbar spine disorder in service. Specifically, the Board notes that no such disorder was detailed on the October 1976 separation examination, and the Veteran himself did not report a history of experiencing low back pain on the corresponding October 1976 Report of Medical History. Therefore, service connection on a direct basis under 38 C.F.R. § 3.303(a) is denied. Furthermore, there was no definitive diagnosis until after the 2009 ladder fall injury. As such, the Board also finds that service connection for a lumbar spine disorder based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is also denied. The Veteran may still be entitled to service connection for a lumbar spine disorder if all of the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). The Veteran specifically contends that his lumbar spine disorder is attributable to his work duties in service. However, he has presented no objective medical evidence to support this contention other than the unsupported medical research articles discussed previously, and there is no evidence in the record showing that he has the medical training, credentials, or other expertise to competently conclude that his lumbar spine disorder is due to his service. Jandreau, supra. This theory of entitlement was also explicitly dismissed in the highly probative February 2021 VA examiner opinion, and there is no positive and probative evidence in the claims file to support that the lumbar spine disorder that was diagnosed several years after service is attributable to an in-service injury, event or disease. Moreover, the long span of time between the Veteran's in-service treatment for back pain and his actual diagnosis of a chronic lumbar spine disorder over 30 years after his discharge from service weighs against a determination that the low back symptomatology arose during service and continued thereafter. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In summation, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran's lumbar spine disorder is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a lumbar spine disorder under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of service connection for a lumbar spine disorder in total must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.