Citation Nr: 21029341 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-21 095 DATE: May 13, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for a renal condition is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability had its clinical onset many years after his separation from service and is not related to service or to any incident therein. 2. The Veteran's renal condition had its clinical onset many years after his separation from service and is not related to service or to any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a renal condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction of the Veteran's claims file currently resides with the San Diego, California, RO. In September 2016, the Veteran testified before a decision review officer (DRO) at the Houston RO. A transcript of the hearing is of record. Thereafter, the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge in January 2018. A transcript of this hearing is also of record. In May 2018, the Board found that new and material evidence had been received to reopen the issues of service connection for diabetes mellitus and an acquired psychiatric disorder. Next, the Board granted service connection for a skin condition as well as diabetes mellitus. Lastly, it remanded the issues of service connection for a lumbar spine disability, bilateral hearing loss, hypertension, a liver condition, a gastrointestinal condition, hepatitis C, renal failure, and an acquired psychiatric disorder for further development. Then, in a November 2019 rating decision, a VA RO granted service connection for an acquired psychiatric disorder. The Board finds that this grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 19.20. Subsequently, in February 2020, the Board granted the Veteran's claim for service connection for bilateral hearing loss. Additionally, the Board remanded the issues of service connection for a lumbar spine disability, hypertension, a liver condition, a condition of the digestive system, hepatitis C, and a renal condition for additional development. These issues were once again remanded by the Board in May 2020. Then, in February 2021, the Board granted service connection for hypertension. The Board also denied service connection for hepatitis C, a liver condition, and a condition of the digestive system. Lastly, the Board remanded the issues of service connection for a lumbar spine disability and a renal condition. The case has returned to the Board for appellate review. Service Connection Generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Additionally, service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To substantiate secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Lumbar Spine Disability The Veteran contends that he is entitled to service connection for a disability of the lumbar spine after injuring his back lifting heavy objects in service. After reviewing the evidence of record, the Board finds that service connection for a lumbar spine disability is not warranted. Accordingly, the Board denies the Veteran's claim. See 38 C.F.R. § 3.303. In support of this determination, the Board first notes that the Veteran was diagnosed with a disability of the lumbar spine during the claim period. See, e.g., November 2020 VA Back Conditions Examination Report (noting a current diagnosis of lumbosacral strain); April 2010 VA Treatment Record (indicating chronic lower back pain as one of the Veteran's current medical problems); January 2008 VA Imaging Study (stating that, in an imaging study of the liver, thoracolumbar degenerative disc and lumbar facet joint disease were present). Accordingly, the Board finds the first service connection requirement of a current disability has been satisfied. Moving to the next requirement of an in-service incurrence, a review of the Veteran's service treatment records (STRs) does not include any notation of an injury of, treatment for, or diagnosis of a lumbar spine disability in service. However, as stated previously, the Veteran has testified that he injured his back in service while lifting heavy objects and performing his duties as a supply man. See, e.g., June 2009 Informal Claim. The Board notes that the Veteran's Department of Defense Form 214 (DD214) lists supply clerk as his military occupational specialty (MOS) and, as the Veteran is competent to testify about things he experienced with his own sensesincluding his service experiencethe Board finds the Veteran's testimony regarding his in-service duties to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds the in-service incurrence requirement to also be satisfied in the instant case. Lastly, regarding the remaining service connection requirement of a nexus between the current lumbar spine disability and service, the Board finds that the record contains one adequate, competent medical opinion. Specifically, in March 2021, a VA clinician reviewed the Veteran's entire claims file and opined that it was less likely than not that the Veteran's current lumbar spine disability was incurred in, caused by, or related to service. In support of this conclusion, the clinician first stated that there was no objective evidence of complaints of or treatment for the low back in service. The clinician acknowledged the Veteran's contention that his current lumbar spine disability was caused by the cumulative effects of his in-service duties as a supply specialist, but implied that any negative effects of these duties would correlate to receiving treatment in service. Lastly, the clinician indicated that while 1993 VA treatment records noted chronic back pain, a lack of treatment for the lumbar spine during service supported a conclusion that the Veteran's current disability did not have its onset prior to separation from service in 1970. The Board finds the March 2021 clinician's opinion to be adequate for adjudicative purposes as it was based on a consideration of the Veteran's entire medical history, described the Veteran's condition in detail, and included an explanatory rationale in support of its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the clinician addressed the Veteran's contention that his current disability was related to duties performed in service and concluded that this was not supported by the other evidence of record. While the Veteran may believe that his current lumbar spine disability is related to service, he has not demonstrated that he possesses the requisite medical knowledge and training to render himself competent to opine as to the etiology of musculoskeletal conditions. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009). Accordingly, as there are no competent, adequate medical opinions of record linking the Veteran's current lumbar spine disability to service, the Board concludes that service connection must be denied in the instant case. See 38 C.F.R. § 3.303. 2. Renal Condition Similar to the lumbar spine disability, the Board finds that service connection for a renal condition is also not warranted in this case. As such, the Veteran's claim is denied. In support of this determination, the Board first notes that the Veteran has been diagnosed with a current disability. Specifically, a January 2018 VA treatment record included kidney stones, with onset in October 2007, in the Veteran's active problem list. Accordingly, the Board finds that the current disability requirement for service connection has been satisfied in the instant case. In making this determination, the Board acknowledges that the Veteran has contended that he has a current disability of renal failure. The Board notes that VA treatment records associated with the claims file document an episode of acute renal failure in August 2006, secondary to hepatitis C. However, the Board notes that, in September 2019, a VA examiner reviewed the Veteran's claims file and stated that the Veteran's August 2006 episode had resolved and that this was not a current concern. As the Veteran's renal failure did not present during or approximate to the claim periodi.e., June 2008 to the presentit is not a "current disability" for the purpose of this decision. McClain v. Nicholson, 21 Vet. App. 319 (2008). Moving beyond the current disability requirement, the Board finds that the Veteran did not complain of or receive treatment for kidney stones in service. Indeed, the Veteran's STRs are silent for any treatment of kidney stones. Additionally, regarding this issue, the Veteran has only generically contended that he has had issues with his kidneys ever since service. See DRO Hearing Tr. at 14-15. Although the Veteran is competent to report and describe symptoms and events he experienced with his own senses, see Layno, supra, the Board finds the Veteran's contentions regarding (1) an in-service incurrence of a disability, and (2) the continuity of his disability to be less credible as they are inconsistent with the other evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Specifically, in addition to the lack of complaints or treatment for kidney stones in his STRs, the first report of treatment for kidney stones post-service were documented in a June 1992 VA treatment record. The Board finds this evidence to be more probative that the Veteran's lay statement regarding the continuity of his condition. Accordingly, the Board finds that service connection must be denied due to a lack of an in-service onset or injury resulting in his development of kidney stones. See 38 C.F.R. § 3.303. In denying service connection for a renal condition on a direct basis, the Board also acknowledges that the record has raised whether a renal condition is secondary to hepatitis C. However, as hepatitis C is not currently a service-connected disability, service connection on a secondary basis is also not warranted in the instant case. See 38 C.F.R. § 3.310. (Signature on Next Page) S.C KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.