Citation Nr: 21030676 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-61 522 DATE: May 19, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability is not attributable to incident or event during his period of service and did not manifest within one year of discharge from active duty. CONCLUSION OF LAW The criteria to establish service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1969 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in December 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. The Board notes that in February 2021, the Veteran submitted a Form 10182 Notice of Disagreement initiating an appeal of the denial of special monthly compensation based on a need for aid and attendance or due to being housebound. This appeal will be addressed separately at a later date. Entitlement to service connection for low back disability. The Veteran contends that his current low back disability is related to military service. Specifically, the Veteran asserts that his low back disability is related to jumping off trucks and lifting heavy kitchen equipment to serve troops in Vietnam. See VA Form 21-0958, Notice of Disagreement dated in March 2016. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The Veteran has been diagnosed with degenerative arthritis of the spine and spinal stenosis, as indicated in the June 2020 VA examination. See June 2020 VA Examination Report. At the outset, the Board has considered the application of presumptive service connection to this appeal. Although this theory of entitlement under 38 C.F.R. § 3.309 is available for arthritis, the record does not establish that the Veteran's low back arthritis onset was within one year of separation. As such, presumptive service connection is not available based on chronicity. A review of the Veteran's available STRs did not reveal any complaints, findings, or treatment for any low back symptoms. The July 1969 induction examination and June 1971 separation examination revealed normal clinical evaluations of the spine. See Military Personnel Record with receipt date of 10/22/15. Post-service treatment VA treatment records reflect that the Veteran reported that he had low back pain with an onset of three weeks prior while lifting at work in July 1995. X-rays revealed narrowing of L4-5, L5-S1 disc spaces with spur formation posteriorly and flattening of the normal lumbar lordosis. He was assessed with lumbosacral strain. In May 2011, the Veteran was noted to have a past medical history of a herniated disc and was status post lumbar laminectomy-job related injury in 1981. See May 2011 Castle Point VAMC Treatment Record; CAPRI Records with receipt date of 2/4/16 in Caseflow. The Veteran submitted a private opinion from Dr. Frigon, M.D., an orthopedist, dated in August 2019. Dr. Frigon reviewed the claims file, interviewed the Veteran, and opined that the Veteran's lumbar arthritic condition and radiculopathy were caused or related to injuries that occurred while the Veteran was in service. Dr. Frigon indicated that the Veteran had no other injuries to his back since leaving service and has progressively worsening low back pain which necessitated two lumbar decompression surgeries. The Veteran reported that he sustained injuries to his back while serving in a combat environment in Vietnam. Dr. Frigon concluded that the ongoing lumbar spine condition was likely caused by the injury that occurred while in service. The Board found conflicting evidence of record, specifically that the Veteran's lumbar laminectomy was due to a job related injury and Dr. Frigon's statement that he did not sustain any back injuries following service. Therefore, the Board remanded the matter in December 2019 to obtain a VA examination for the claimed lumbar spine disability. Thereafter, in June 2020 the Veteran was afforded a VA examination and opinion for his lumbar spine. The examiner opined that the Veteran had a job where he lifted heavy objects and his pain was nagging daily; his X-rays showed narrowing of the disc spaces and the Veteran was diagnosed with lumbosacral sprain-strain in 1995. The examiner noted that the Veteran served in the military in 1969 through 1971 and the records were silent for any back pain until the year 1995. The examiner opined that the Veteran's back condition seemed to correlate more with his job lifting in the warehouse than to service in the 1970s. The examiner found no nexus and stated that the Veteran's degenerative arthritis of the spine, spinal stenosis and status post discectomy was less likely than not incurred in or caused by service. The examiner noted that a detailed medical history was obtained from the Veteran and the Veteran did not report any in-service back injuries. He reported injury to his back in approximately 1995 as a result of continuous heavy lifting on the job. The Board finds the VA examiner's opinion to be highly probative evidence that weighs against the claim. The opinion, which was based on review of the Veteran's documented and asserted medical history and an in-person examination, constitutes probative evidence on the medical nexus question. See Prejean v. West, 13 Vet. App. 444 (2000). The Board finds that this medical opinion was fully supported by the evidence of record, and the examiner provided adequate rationale for her findings. The Board acknowledges the Veteran's August 2019 statement noting that his activities during service were very strenuous and that upon his discharge he began experiencing back pain. He has problems mowing the lawn or even standing in the kitchen to cook dinner. He noted that he uses pain medication and heating pads to relieve the pain, but that it persists every day. He could not lift anything heavy or slouch. He noted he has to be careful if he bends over and there are times he cannot pick anything up. He reported using a back brace. The Board acknowledges the Veteran's reports of back pain immediately following his service and his reports of in service strenuous activity. However, the Board reiterates that the Veteran has not had treatment for any back related issues immediately following service and that there is no in service treatment for any back issues. While the Veteran may believe that his current back disorder is related to activities in service, such lay assertions do not constitute probative medical evidence. The Veteran is competent to describe his symptoms as he perceives them, but as a lay person, he is not competent to provide a medical diagnosis of degenerative arthritis of the spine or spinal stenosis, or to opine on the etiology of these complex disorders and whether they are related to the back pain that he experienced after separation from service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board ultimately finds that the June 2020 VA opinion is most probative as it included a detailed review of the claims file and provided an adequate rationale of the negative nexus opinion. In contrast to the June 2020 VA opinion, the Board finds the August 2019 positive opinion exhibits a deficiency of relying on the finding that the Veteran did not experience any injuries to the back post service, when in fact, the Veteran's post-service medical records show documentation of a lumbar laminectomy necessary because of a 1981 work-related injury. The weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board acknowledges that the August 2019 private examiner indicated that he had reviewed the claims file and provided a general timeline of the Veteran's medical history, but the Board finds that his analysis does not accurately represent the facts of the case, as he references the Veteran's back being injured while serving in combat in Vietnam, despite the directly contradictory evidence of any back injury occurring in service, and his statement that the Veteran had no other injuries to the back after service. The Board therefore finds that the probative value of the private opinion is less than that of the June 2020 VA opinion, which more accurately represents the medical evidence and factual history in this case. The Board therefore finds that the weight of the most probative medical evidence indicates that the Veteran's current back disability was not incurred in service or within one year of service, and it is not otherwise related to any event or injury in service. The claim for service connection is denied. (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.