Citation Nr: 21029825 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-09 649 DATE: May 17, 2021 ORDER Entitlement to service connection for low back disability is denied. FINDING OF FACT The Veteran had acute episodes of low back pain from muscle strain in service which resolved and are etiologically unrelated to the Veteran's current disability of back pain caused by lumbosacral spine degenerative disk disease. CONCLUSION OF LAW The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from April 1966 to April 1989 with verified service in the inland waterways of the Republic of Vietnam. This matter originally came before the Board of Veterans' Appeals (Board) from a December 2017 rating decision issued by a Department of Veteran Affairs (VA) Regional office (RO). The Board remanded the claim in July 2019 and September 2020 for further evidentiary development. Upon return of the claim for further adjudicative action, the Board observes that there has been substantial compliance by the RO with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including arthritis will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in most cases, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competent medical evidence is evidence provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises, authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is evidence provided by a person who has knowledge of facts or circumstances of matters that can be observed and described that do not require specialized medical or scientific education, training, or experience. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). After determining that the evidence is competent, the Board must then determine if the evidence is credible. Competency is distinguished from credibility as competency involves a determination whether evidence may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this effort, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 465. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After determining the competency and credibility of evidence, the Board must then weigh its probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for low back disability The Veteran contends that the onset of his current low back disability was in service. The Board disagrees. Close review of the Veteran's service treatment records includes the Veteran's January 1989 separation Report of Medical History in which he Veteran notes in that he has occasional back pain and endorsed recurrent back pain. There are 5 clinic visits for low back pain from April 1982 to May 1988. In his annual Reports of Medical History in May 1986, 1987 and 1988, the Veteran endorsed recurrent back pain, wrote that he had occasional lower back pain, and specified in 1988 that he had "dull pain shooting down my right hip and right leg. I normally take Parafon forte whenever pain persists." The examining military physician's assistant noted occasional lower back pain for 6 years. In March 1990 the Veteran prepared a medical history noting occasional back pain in his middle to lower back since 1982 with pain shooting down his right hip and right leg. The low back pain occurred during prolonged standing and heavy lifting and with exposure to extreme heat and cold. Private treatment records reflect a January 2002 visit in which the Veteran complained of numbness of the right leg with prolonged standing causing right sided lower back pain. MRI findings showed a lumbar spinal canal "well within normal limits,' normal disk hydration at all levels, no evidence of herniated disk of disk bulging, and no significant degenerative changes in the facet joints, and no significant ligamentous hypertrophy. The neurologist examiner for the Veteran's December 2017 VA disability examination did not find a nexus between a minor fall on active duty in the late 70s with occasional back discomfort for many years thereafter indicating that the Veteran's back symptoms had only been troublesome enough to require intervention in the past couple of years. Initial range of motion testing revealed forward flexion to 65 degrees, extension to 25 degrees, lateral flexion for 30 degrees and lateral rotation to 20 degrees. There was some decrease in muscle strength, without atrophy, for the right leg from hip to toe. Sensation was decreased from the right knee to the right toe. With mild numbness of the right leg, the examiner endorsed a moderate right radiculopathy. The 2017 MRI revealed spondylosis without disc herniation or nerve root compression. Accordingly, the Veteran has satisfied the first and second elements required for service connection a current disability and an inservice event. The resolution of the Veteran's claim turns on whether a nexus can be found between the Veteran's current degenerative disk disease of the lumbar spine and back pain in service. Private medical records reflect an examination in April 2018 for history of Parkinson's Disease. The Veteran's symptoms had improved, and he had no musculoskeletal complaints. In March 2020, a VA examiner (nurse practitioner) prepared an addendum opinion to the December 2017 opinion fully endorsing the opinion of the VA neurologist examiner. In February 2021, the Veteran underwent a second VA disability examination for back conditions in support of his claim. The examiner noted imaging studies including a January 2002 lumbar spine magnetic resonance imaging (MRI) which was found no abnormalities, a January 2017 spinal x-ray which revealed mild to moderate lower lumbar spondylosis, and a January 2017 MRI which revealed "mild spondylitic change" at multiple levels (MRI with mild DDD and mild left stenosis L3-4 L4-5 without HNP). The examiner confirmed diagnoses of degenerative disc disease of the lumbar spine and right lower extremity radiculopathy from 2017. The examiner elicited history from the Veteran of back pain that began as mild and intermittent in the early 1980s when his duties required a lot of heavy lifting. He usually managed the back pain on his own. At present the Veteran has a constant dull pain in the lumbar spine. He reports that prolonged standing, such as washing dishes in front of the sink will cause pain. He walks occasionally for exercise. He reports flare-ups of pain in the right leg with prolonged driving and in the lower back with prolonged standing. On range of motion testing, the Veteran demonstrated pain in all motions with full forward flexion, 10 degrees of extension, 25 degrees of later flexion in both directions, and full lateral rotation. For repeat use over time, 5 degrees of motion was lost in all directions, and with flare-ups, extension was 5 degrees, with 10 degrees of lost motion in all other directions. There was no guarding or muscle spasm, no loss of muscle strength, and no ankylosis or intervertebral disc syndrome. While his reflexes were normal, the Veterans sensory exam was abnormal for the right leg with decreased sensation from the upper thigh to the toes. The examiner was unable to perform the straight leg raising test, however the examiner endorsed a right leg radiculopathy with mild intermittent dull pain and numbness in the right lower extremity with involvement of the femoral and sciatic nerve roots. Passive range of motion testing was medically contraindicated. The physician examiner concluded that it is less likely than not that the Veteran's lumbar spine condition is related to service. He noted that the episodes of back pain in service were acute and self-limited as they were muscular in origin given that there were normal findings on lumbar spine MRI in 2002 (13 years after service separation). Normal MRI findings on MRI indicates that there was no degeneration of the lumbar spine to account for the Veteran's back pain. The degenerative disc disease revealed on the 2017 MRI indicates that there was age- related spinal degeneration that is unrelated to service. The Board notes that there is no competent medical opinion suggesting the Veteran has a low back disability related to service. The Veteran believes that the instances of low back pain in service are related to his current low back disability, however, he does not have the specialized knowledge, training and experience that qualifies him to associate those symptoms with the degenerative disease noted on MRI in 2017. Such opinions require specific medical training and are beyond the competency of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007). Accordingly, the Board assigns greater probative weight to the competent and credible medical opinion of the February 2021 VA examiner who distinguished the Veteran's episodes of back pain in service from the Veteran's current back pain caused by degenerative arthritis of the lumbar spine. In sum, as the weight of the probative lay and medical evidence is against a nexus between inservice incidents and the Veteran's current disability, service connection is not warranted for low back disability. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.