Citation Nr: 21031101 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-31 153 DATE: May 20, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran's back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2004 to November 2004, from August 2005 to December 2006, and from October 2009 to September 2010. The Veteran attended a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in March 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back disability The Veteran contends that service connection is warranted for his back condition. Specifically, the Veteran asserts that his current back condition is the result of carrying heavy rucksacks and equipment during his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran testified at his February 2020 hearing that he did a lot of heavy lifting and wore a lot of heavy gear during service. The Veteran stated that his hips, knees, and ankles all hurt after returning from deployment in Iraq. The Veteran had an examination for his claimed back disability in March 2021. The examiner noted that the Veteran had a diagnosis of L4-L5 disc herniation and central canal stenosis. The examiner opined that it was less likely than not that the Veteran's back condition was related to his active service. The examiner noted that there are no in-service records revealing a back injury or chronic back pain. The examiner further noted that VA records show the veteran had been seen due to low back pain, however the injuries occurred while at a civilian job not associated with his military duties. The examiner noted that the Veteran was seen on April 16, 2014 for back pain while building a deer stand, and on April 5, 2012 due to back pain while shoveling dirt at work. The examiner also indicated that the Veteran additionally verbalized another low back injury in 2012 that occurred while sweeping the floor at his civilian job as well. The examiner noted that Veteran's hearing testimony was reviewed but concluded that based on a review of the record as well as taking into consideration of Veteran's lay statements, a nexus cannot be established. Upon review of the record, the Board finds that service connection for a back condition is not warranted. The Board finds the March 2021 examiner's medical opinion to be highly probative because the examiner provided an adequate rationale based on the relevant medical evidence of record and the pertinent lay statements. The examiner noted the Veteran's competent lay statements of record regarding his in-service back injury, and provided an adequate rationale concluding that the Veteran's back condition was likely due back injuries sustained in 2012 and 2014. To the extent that the Veteran believes that his back condition is linked to his active duty service, the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his back condition is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's back condition and his military service. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service or based on continuity of symptoms when first noted in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran contends that he has had pain since service. However, there is no evidence that symptoms of the Veteran's back condition were noted in service. Nor is there evidence of the Veteran's back condition having been diagnosed within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. As such, presumptive service connection is not warranted for this disability. In sum, the evidence preponderates against the claim for service connection for a back disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a back disability must be denied. 38 C.F.R. § 3.303. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.