Citation Nr: 21029938 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-30 709 DATE: May 17, 2021 ORDER Entitlement to service connection for lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease, or service-connected disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1977 to September 1980 as well as from June 1984 to December 1985. The Veteran's lumbar disability claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has previously considered the Veteran's lumbar spine disability on four occasions. In May 2015 the Board remanded this issue to obtain additional private treatment records. The issue returned to the Board in March 2018 where it was denied as not related to his service. In February 2019 this denial was appealed to the Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Partial Remand (JMPR) was agreed to in February 2019 vacating the March 2018 Board opinion. In July 2019 the Board again remanded to obtain a new VA examination as well as to obtain additional VA treatment records. Most recently, the Board remanded in November 2020 for a new VA medical opinion discussing the possibility of aggravation due to the service-connected left shin and right ankle. Service Connection Lumbar Disability The Veteran contends that all of the physical training he participated in while in service ultimately led to his back pain. He specifically mentions the BOOST program as well as moving heavy crates. In a February 2018 statement in support of this claim the Veteran acknowledged not going to the doctor in service short of one time because he knew the only treatment would be rest and pain medication. The Veteran's service treatment records (STRs) contain one complaint of pain near the lumbar region. This is from a STR dated March 22, 1978. However, a closer reading of this note indicates that the treatment was actually for abdominal pain located in the right lumbar quadrant which would encompass the gallbladder, liver, and right colon. The note discussed the Veteran's bowel movements including melena. It was also noted that the Veteran had no complaints of nausea, vomiting, or diarrhea. These symptoms point to an abdominal issue and not a lumbar spine issue. Accordingly, the STRs contain no complaints of lumbar spine injury. In approximately October 1989, four years post-service, the Veteran was involved in a motor vehicle accident and had complaints of back pain. In November 1990 the Veteran exacerbated his back injury while playing basketball. A December 1990 MRI of the spine showed a slightly leftward disc protrusion and disc degeneration. In August 1991 the Veteran was diagnosed with a lumbar strain and lumbar disc disease. An October 2010 VA examination found that the Veteran's lumbar spine disability was less likely than not related to the Veteran's time in service. A new VA examination in November 2019 diagnosed the Veteran with a lumbosacral strain as well as degenerative arthritis of the spine. There was no ankylosis or IVDS found. The examiner found that there was no functional impact on the Veteran's ability to work. This examination was the basis for the November 2020 remand. This opinion failed to consider the possibility of the Veteran's other service-connected issues, including the left shin and the right ankle, causing the Veteran's lumbar spine to be aggravated beyond its natural progression. In December 2019, a VA examiner concluded that the Veteran's low back disability, which he reported was due to repetitive use such as loading and unloading crates, was less likely than not related to his service because there was no indication that he injured his back in the service treatment records or in records in the years immediately following service separation. The examiner found it to be significant that the Veteran suffered a back injury from a motor vehicle accident about 5 years following service separation. The records did not evidence a previous injury to his back, such as the overuse injury he described. The examiner also found it unlikely that the Veteran's low back disability was caused by his service-connected shin splints or right ankle disability, as there was no evidence of gait changes or other evidence to support that finding. In December 2020 a VA examiner completed a records review and provided an opinion on the possibility of aggravation of the Veteran's lumbar spine disability. This examiner found no concurrent right ankle pain or bilateral lower leg complaints to suggest that the stress on the Veteran's back stems from the service-connected ankle and lower leg conditions. The examiner continued by noting that the Veteran's gait and range of motions of the knee and ankle were stable and therefore not severe enough to cause a low back disability. Finally, the examiner concluded that the Veteran's degenerative arthritis was likely due to a combination of the Veteran's age and his obesity and therefore not service-connected. The Board finds that the December 2019 and December 2020 medical opinions are adequate. In this regard, the examiners thoroughly reviewed and discussed the relevant evidence, considered the contentions of the appellant, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there is no medical opinion of record to the contrary, these VA medical opinions are the most probative evidence of record. Specifically, the medical opinions are entirely consistent with the record. There is nothing in the record to contradict these opinions. The Veteran's low back disability is a complex diagnosis; therefore, determining it's etiology is beyond the Veteran's lay competence. While the Veteran is competent to report back pain and injury, he is not competent to diagnose this disability or determine that it is due to repetitive use as was contended in this particular case, especially in light of the intervening injuries and work history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions obtained. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lumbar spine disability is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.