Citation Nr: 21029123 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-21 748 DATE: May 12, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from October 1973 to October 1975. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in April 2019, and remanded the issue for additional development in order to request Social Security Administration records and an addendum VA examination opinion. After the development was completed, the case returned to the Board for further appellate review. 1. Service connection for a low back disability. The Veteran contends that his low back disability is related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of lumbar spine arthritis (degenerative joint disease and degenerative disc disease) as evidenced by the October 2013 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records do not diagnose arthritis in service. While one September 1975 treatment record noted "poss DJD" and ordered x-rays, subsequent records did not confirm the diagnosis. The October 1975 separation examination described the spine as normal and did not describe any defects or diagnoses of the back. Private treatment records show the Veteran was not diagnosed with arthritis until 1997, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of low back pain consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Furthermore, the Veteran's report of continuous symptoms are not consistent with the record. Private treatment records reflect that the Veteran reported the condition was from work injuries. For example, a November 1980 private treatment record reflects the Veteran was treated after a work related back injury in September 1977. At that time, he did not report any prior service related injuries. An August 1992 private treatment record indicated the Veteran was seen for a back injury he sustained at work while lifting. This record noted other prior back injuries in 1991 and 1990 but did not mention any service-related injuries. It is significant that the Veteran did not describe or report any prior back pain or injury at the time he initially sought treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (Federal Rule of Evidence 803(4) expands the hearsay exception on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to intercurrent causes. As explained further below, the December 2020 VA examiner opined that the Veteran's low back disability was less likely related to a few instances of low back treatment during service and instead pointed out multiple post-service work injuries documented since 1977. While the Veteran is competent to report experiencing symptoms of low back pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing low back pain from October 1975 to September 1977 and initially reported the onset of low back pain as due to a post-service work injury in September 1977, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms during service were manifestations of his current low back disability, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for a low back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's low back disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The December 2020 VA examiner opined, "There was only a couple complaints of the back condition while Veteran was in service and no further complaints thereafter, so it was likely an acute process. Therefore, the condition experienced now is less likely than not the same condition experienced 30[plus] years ago." In support of this opinion, the VA examiner pointed out that the Veteran's post-service Social Security Administration records showed multiple work-related low back injuries sustained in 1977, 1990, 1991, and 1997. The VA examiner reasoned that the Veteran's service treatment records documented complaints and treatment for his low back once in September 1973 and a few times over a period of 18 days during September of 1975, yet his separation examination did not document any spine abnormalities. Given the post-service work injuries documented in private treatment records, the VA examiner opined, "...the condition experienced now is less likely than not the same condition experienced years ago in service." The Board finds this medical opinion highly probative of a negative nexus between the Veteran's current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the Veteran believes his low back disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that the current low back disability did not have its onset in service, was not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, 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. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.