Citation Nr: 21030416 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-58 372 DATE: May 18, 2021 ORDER Entitlement to service connection for a back condition, claimed as lower back injury is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran currently suffers from a back condition that is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1992 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. However, a transcript of that hearing is unavailable due to technical difficulties with the recording system. In an October 2019 letter, the Board advised the Veteran that a transcript was unavailable and offered him the opportunity to participate in a new hearing. A follow up correspondence was mailed in July 2020. It was noted that the Board would assume that he did not want another hearing if he did not respond within 30 days. No response was received; thus, the Board will proceed with adjudication. 1. Entitlement to service connection for a back condition, claimed as lower back injury is denied Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (2018). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran seeks service connection for a back condition. He contends that the condition began in boot camp when he suffered a lower back muscle strain. He reports that when he was younger, the pain was sporadic and did not bother him as much. As he grew older, the pain occurred more and more often and to a more extreme extent. Service treatment record (STR) indicates that the Veteran was diagnosed with a "mild lower lumbar muscle strain" in June 1992 and was treated with Bengay and Motrin in service. His April 1997 separation examination is silent on any chronic or recurring back pain. The Board notes that the Veteran was diagnosed with intervertebral disc syndrome (IVDS) and degenerative arthritis of the spine on his April 2018 VA examination. Thus, the question is whether his current back condition is related to service. On this question, the preponderance of the evidence is against the claim. In this regard, during VA examination in December 2015, the Veteran reported that he has low back pain that is slowly getting worse over the last 5 to 7 years, but much worse in the past 6 months. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the records reflect conservative treatment for muscle spasms in the low back in June 1992. After this treatment, records are silent for any recurrent back complaints until about15 years after that injury. Therefore, there is a lack of chronicity and continuity of care for his back. The examiner also noted that the Veteran had worked a fairly strenuous job as a mechanic and was an avid runner and exerciser, so interim injury is a good possibility. As there is a lack of chronicity or continuity of care for his back after his release from active duty, the examiner opined that it is less than likely his current back condition is related to his one-time treatment for back spasms while in active duty, but more than likely due to his lifestyle after service. In an April 2018 addendum opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine and IVDS, while the STR in June 1992 reflects a diagnosis of "mild lumbar muscle strain." The examiner noted that at that visit, the Veteran complained of low back pain and denied any radiating pain or radicular symptoms of the extremities. The physical examination was completely negative at that time except for "mild tenderness on palpation." The examiner stated there are no further records for continuing low back pain, medical records thereof and there is no mention of low back pain and/or problems on separation. She further stated that the Veteran ultimately had surgery on his L3-L4 disc in November 2016, and there is a lack of chronicity of care from June 1992 to May 2015. The examiner noted that in May 2015, there is a medical report citing "symptomatic radiculopathy with findings consistent with an L3-L4 spondylolisthesis." She explained that this report indicates the back pain is different in nature than that of the June 1992 STR with an entirely different diagnosis. There is no evidence that the 1992 mild lumbar muscle strain; without any complaints of radicular symptoms, was the source for the 2015 low back pain with radiculopathy and spondylolisthesis noted on imaging. The examiner explained that it is most likely that the current degenerative changes and IVDS post operatively are due to the Veteran's lifestyle and work as a mechanic post-service. Therefore, the current degenerative change and IVDS is less likely than not (less than 50 percent probability) incurred in or caused by the "mild lumbar muscle strain" documented in a 1992 service treatment record. The Board finds the VA examiners' opinions, considered together, establish that the Veteran's current low back disability is not at least as likely as not related to service. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary. Although the Veteran contends that he has suffered a back disability since the documented in-service back treatment, the Board finds such assertion less probative than the medical evidence of record. In this regard, he was seen in 1992 for back complaints, with no subsequent complaints during service. Moreover, he denied recurrent back pain on the April 1997 report of medical history, despite reporting other ailments at that time. The Board finds it unlikely that the Veteran would not have reported back complaints had he been experiencing them. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). Additionally, while he contends he suffered a fracture of the vertebrae during service that was not diagnosed because no x-ray was done, the Board finds the contemporaneous treatment records and the lack of any additional complaints or treatment for his back to be more probative as to the presence of a fracture at that time. Id. While the Veteran believes that his current back condition is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of spine disabilities are matters that require medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current back condition, or the presence of a fracture in service, is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current IVDS and degenerative arthritis is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Although medical records from a November 2016 treatment note the Veteran providing a history of chronic back pain beginning during active service, a bare transcription of lay history unenhanced by any additional medical comment by the examiner, is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995). The Board finds the VA examiners' opinions to be the most probative evidence concerning the question of whether the Veteran's current back condition is related to service. There is no probative medical opinion to the contrary. In sum, the most probative evidence indicates the Veteran's current back condition did not arise during service, did not manifest within one year following discharge from service, and is not related service. Accordingly, service connection for a back condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.