Citation Nr: 21028625 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-62 835 DATE: May 11, 2021 ORDER Entitlement to service connection for lumbosacral degenerative disability is denied. FINDING OF FACT 1. The weight of the medical and other evidence of record is against a finding that the Veteran has a diagnosis of degenerative disc disease, claimed as lower back injury, that had its onset in-service or is otherwise related to a disease or injury during military service. 2. Degenerative disc disease, also claimed as lower back injury, was not manifest to a compensable degree within one year of separation from active duty service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbosacral have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1963 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in November 2018 for an examination and a medical opinion on the Veteran's disability. Service Connection A Veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 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. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the cause of a lumbar spine condition. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 1. Entitlement to service connection for lumbosacral degenerative disc disease (DDD) The Veteran has been diagnosed with lumbosacral DDD. See December 2018 VA Examination. Therefore, the first element of service connection is established. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of any spine condition at enlistment, during service, or at separation. The Veteran contends that his current diagnosed degenerative disc disease of the lumbar spine is related to his active service. Specifically, the Veteran contends that his current disability is the result of two back injuries sustained during service. He alleges that he first injured his back during basic training but did not report to sick call out of fear of his drill sergeant. The Veteran also alleges that he reinjured his back during a physical training test, but again did not report the injury or seek treatment. See August 2015 NOD. The Veteran has also submitted several other lay statements detailing the two back injuries and indicating that both occurred in 1964 during service. See November 2017 Form 9; September 2017 VA 21-4138 and May 2016 Correspondence. An October 1965 separation examination was performed for the Veteran prior to his discharge where the Veteran reported to be in excellent health. He notated prior or present issues with mumps, eyes, wearing glasses, reaction to medicine, trouble sleeping, depression or excessive worry, and nervous trouble. Notably, he did not report issues with arthritis or rheumatism, or with bone, joint or other deformity. While the Veteran reported symptomatology after service, medical records do not document complaint, diagnosis, or treatment for a back condition until 2012. See December 2012 Lake Cumberland Neurosurgical Clinic. The Veteran complained that he had pain in his lower back, hips and buttock, bilaterally which began six months previously. He was prescribed physical therapy and given a TENS unit. In March 2013 the Veteran followed up at the Lake Cumberland Neurosurgical Clinic where he reported completing nine visits to physical therapy that did not decrease his pain, though his pain did not increase and had more good days than bad and found to be a candidate for a spinal cord stimulator trial. In a January 2014 follow up at the Lake Cumberland Neurosurgical Clinic there was evidence of multilevel DDD from L1 through S1, moderate stenosis at L4-5 and mild stenosis at L3-4 and L1-2 and again found to be a good candidate for a spinal cord stimulator trial. In a February 2014 follow up at the Lake Cumberland Neurosurgical Clinic, the Veteran was fitted for a spinal cord stimulator where the Veteran was reported pleased with the results of his trial and would proceed with permanent placement. In an October 2014 follow up at the Lake Cumberland Neurosurgical Clinic, the Veteran reported being pleased with the results of the stimulator which was adjusted to lower stimulation when sitting. In a May 2016 follow up at the Lake Cumberland Neurosurgical Clinic his stimulator was again adjusted for greater coverage on the left side but reported good coverage on the right. In a May 2017 radiology report, an MRI showed diffuse moderate severe degenerative changes involving the discs and posterior elements producing multilevel severe bilateral foraminal and central canal stenosis. Large disc extrusion on the right posterior to the body of L3 compressing the sac and the cord thought to be arising from the L3-L4 disc. In July 2017, the Veteran underwent an L1-5 laminectomy for neurogenic claudication. See July 2017 VA Treatment Note. Pursuant to the November 2018 Board remand, VA Back (Spine) Conditions examination was performed in December 2018. The examining physician reviewed the claims file and supplied the information requested in the Board remand to: "elicit a full history from the Veteran, consider the lay statements of record, and provide the following opinion: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's current low back disability is related to or had its onset in service" and "to accept as established fact the Veteran's reports of two in-service back injuries in 1964". The Board finds that the December 2018 VA examination substantially complies with the instructions dictated by the Board in its November 2018 remand. See Stegall v. West, 11 Vet. App. 268 (1998). At the December 2018 VA Back (Spine) Conditions examination, the Veteran was diagnosed with lumbar DDD. The examiner concluded, "The condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." In formulating his opinion, the December 2018 VA examiner found the Veteran's reports of injury in service to be credible but found "from the perspective of a physician, the mechanism of injury and his ability to continue to perform in a manner that allowed him to graduate from basic training on time, renders the retrospective diagnosis of a back strain". He further reports that the "issue involves an injury to the soft tissues of the muscles and soft tissue around the spine, but not of the spine itself. These injuries are self-limiting and will resolve, even without treatment, with time. They are not permanently disabling conditions." He further found that "[i]t is less likely than not that this was a manifestation of degenerative disc disease in a then 23-year-old man." The Veteran reported that he did not seek treatment until the 1970's and the examiner again found it inconsistent "with a causal injury that resulted in a chronic injury/disability from his military service". He conceded that the Veteran's "DDD may have been present prior to his 2012 diagnosis, but it is less likely than not that it was present during service or within one year of military discharge." The Veteran provided and discussed an article published by an orthopedic surgeon, Peter Ulrich, Jr., MD that highlighted lumbar DDD "rarely starts from a major trauma such as a car accident. It is most likely due to a low energy injury to the disc that progresses with time." See November 2017 Correspondence. The examiner did not disagree with the overall premise of the article and emphasized a portion of the article that found "it is estimated that at least 30% of people aged 30-50 years old will have some degree of disc space degeneration ... after a patient reaches 60, some level of disc degeneration is deemed to be a normal finding, not the exception." The Veteran was diagnosed with DDD at the age of 72. Presumptive service connection can satisfy both the elements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a) that manifest either during active service or to a compensable degree within the applicable time limits of 38 C.F.R. § 3.307(a) are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309(a) does not manifest in-service or within the applicable time limits, service connection may be granted based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection can also be granted for those diseases listed under 38 C.F.R. § 3.309(b)-(f). The Veteran's diagnosis of "degenerative disc disease" is included in the list of presumptive diseases enumerated in 38 C.F.R. § 3.309, as the Board notes that degenerative changes refers to osteoarthritis of the spine. However, the first documented reference to "chronic" back pain for the Veteran is not until 2012, more than four decades after his military service. See December 2012 Lake Cumberland Neurosurgical Clinic. The Veteran does not meet the requirements for presumptive service connection, either by diagnosis in-service, within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. Turning next to the final element of service connection, a nexus between the current diagnosed condition and an in-service event, the Veteran has not provided evidence, other than personal statements, regarding the history of his lumbosacral spine condition. Inasmuch as the Veteran asserts that his lumbosacral condition is the result of military service, he is not competent to provide evidence of complex medical questions, including etiology and pathology. Therefore, evidence of service connection lies in the December 2018 VA examination. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The December 2018 opinion from the VA examiner is the most probative evidence of record on the question of diagnosis and nexus to service. The opinion was based on an extensive review of all of the evidence, including statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2018 VA examiner opinion is consistent with the evidence of record, including the Veteran's lay statements and the Veteran's private treatment. The VA examiner opinion provides compelling evidence against the Veteran's claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This medical opinion is of no probative value, because he lacks the medical expertise needed to diagnose a lumbosacral spine condition or to attribute it to active military service. There is no competent, credible evidence to refute the December 2018 VA examiner opinion. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). For the reasons set forth above, more weight is given to the medical evidence, including the contemporaneous service medical records, VA treatment records, and the VA examination. Therefore, the evidence of record is not sufficient to warrant a grant of service connection or a determination that further development of the evidence is required. The evidence of record, aside from any lay statements in support of this claim, weighs against the claim for service connection for a back condition. In sum, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.71a, diagnostic code 5237, for entitlement to service connection for lumbar DDD. Therefore, his claim must be denied. The benefit- of-the-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001), Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.