Citation Nr: 21031683 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-58 460 DATE: May 24, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's current lumbar spine disorder began during or is otherwise related to a period of qualifying service; and there is no evidence of lumbar spine arthritis manifested to a compensable degree within one-year following his August 1968 discharge. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 101(24), 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968, and on active duty for training for a 2-week period in August 1969. In May 2018, the Board reopened a claim of entitlement to service connection for lumbosacral strain and remanded the matter for additional development. In November 2020, the Board recharacterized the issue as service connection for degenerative arthritis of the lumbar spine (back condition) and again, remanded for further development. At this time, the issue is being phrased as service connection for a lumbar spine disorder to reflect the multiple diagnoses of record. Entitlement to service connection for a lumbar spine disorder The Veteran contends that his current back condition was caused by an August 1969 injury, or in the alternative, by conducting soldiering tasks such as the carrying of heavy rucksacks. See November 2020 Informal Hearing Presentation. At that time, the representative also referred to treatise evidence indicating that new recruits carry packs weighing up to 100 pounds that can injure and weaken their joints, ultimately leading to arthritis. 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. Active service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). 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). Certain chronic diseases, to include arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Presumptive periods generally do not apply to periods of active duty training and inactive duty training. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). On examination for induction in April 1966, the Veteran's spine was reported as normal on clinical evaluation. On the associated report of medical history, the Veteran denied having recurrent back pain. In September 1966, the Veteran presented with complaints of a sore back for 3 days. At that time, he stated he was in a car accident about 3 years ago, but never saw a doctor. X-rays showed very minimal lumbar scoliosis and the lumbar spine was otherwise negative. In December 1966, he was seen with complaints of pain in the right lower abdomen and back. The examiner noted poor posture and full range of motion of the spine. He was referred to physical therapy where he received a back-management program with postural correction and body mechanics. In January 1967, he was seen with complaints of intermittent lumbosacral pain for 3 years. Previous workup was within normal limits and he was not doing his back exercises as instructed. Impression was chronic postural lumbosacral strain. X-rays of the lumbosacral spine were reported as normal. On separation examination in July 1968, no lumbar spine abnormalities were noted. On the associated report of medical history, he denied back trouble of any kind. The Veteran served on a short period of active duty for training in August 1969 and suffered a fall wherein he fractured his mandible and left humerus. The Veteran's injuries were determined to be in the line of duty. Contemporaneous hospitalization records do not note any complaints or findings pertaining to the lumbar spine. On medical board examination in December 1969, the Veteran's spine was reported as normal on clinical evaluation. Post-service private medical records note treatment for lumbar spinal stenosis beginning in 2001. Subsequent imaging confirmed degenerative arthritis and disc problems. The Veteran underwent a VA back examination in October 2019. He reported that his condition started in 1969 after a fall of 10-15 feet. The examiner noted that a December 2017 MRI indicates degenerative disc disease at all lumbar levels with severe central canal stenosis. The diagnosis was listed as degenerative arthritis of the spine. The examiner reviewed the record and opined that the claimed condition was less likely than not incurred in or caused by active military service, to specifically include the August 1969 fall on active duty for training. In support of this conclusion, the examiner noted that prior to that fall, he complained of back pain on multiple occasions in 1966 and 1967. In November 2020, the Board determined that the presumption of soundness applied and that the above opinion was inadequate. The appeal was remanded for additional opinions. In December 2020, another VA examiner reviewed the record and provided negative etiology opinions with extensive rationale. He noted that the Veteran's separation examination was negative for a back condition. Of particular interest were the August 1969 medical board proceedings which related the fall and associated humeral and mandibular fractures. There was no mention in any records related to the fall, medical board proceedings, or at separation regarding a chronic back condition and such was not shown until 2001, 33 years following service discharge. Following an MRI in 2001, along with associated medical records, a diagnosis of lumbar stenosis was made, and MRI in 2009 confirmed degenerative joint and disc disease. There was no evidence of traumatic injury to the lumbar spine. In the absence of such, degenerative spine disease was considered a natural aging process, due to normal wear and tear with associated inflammation and desiccation of the discs. The Veteran's diagnosis was age appropriate in 2001. Greater than 50 percent of men 50 and older have evidence of degenerative spine disease, the prevalence increasing significantly per decade. Therefore, the examiner concluded that it was less likely that the Veteran's spine disorders were due to or incurred in service including the in-service accident/fall. The Veteran did have an acute episode of low back pain in 1967 but there was no further mention of this injury, and this was presumed to have been acute and self-limited. In-service x-rays were negative and therefore, he did not have degenerative spine disease during service. Moreover, the examiner noted that degenerative spine disease would be would be unusual at the Veteran's age at the time of service, in the absence of demonstrable trauma on imaging. He further stated that it was unlikely the conditions were related in any way to service including military duties, rucking or physical training and the current conditions were more like than not a natural aging process. Regarding any pre-existing lumbar spine disorder, the examiner stated there was no record of such a condition on enlistment exam and it was not until after the fact that the Veteran noted an injury occurring around 1964. The events documented in 1967 appear to have been acute and self-limited and in the absence of further entries and the negative separation exam, any events occurring prior to service appear to have been resolved. Even if the in-service events represented a temporary, self-limited exacerbation or aggravation of a prior injury, it is unlikely to have had any impact on the development of degenerative spine disease following separation from service. The examiner stated that "[t]o be clear, it is less likely than not that the veteran did have a pre-existing condition and that it was aggravated beyond its natural course while in service." In the April 2021 informal hearing presentation, the representative argued that the above opinion was inadequate because the examiner failed to comply with the remand instructions. Specifically, the representative argued that the examiner relied on a lack of evidence in the service treatment records and provided no rationale to support that the condition was not related to military duties. Further, that the examiner failed to address whether the Veteran's reported pre-existing back condition was aggravated by the in-service fall in 1969. The representative requested a new examination. The Board acknowledges the above arguments. On review, the opinion was not based solely on the absence of evidence in the service treatment records. Rather, the examiner provided significant rationale in support of his opinion to include consideration of imaging during and post-service, along with alternate etiology. Regarding whether there was a pre-existing back condition that was aggravated during the 1969 period of active duty for training, a discussion of this was implicit in the rationale. That is, the examiner determined that a chronic back condition was not identified until approximately 2001. Given the foregoing, the Board finds substantial compliance with the remand directives and additional examination and/or opinion is not warranted. See Dyment v. West, 13 Vet. App. 141 (1999) (it is substantial compliance with remand orders that is required). A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304(b). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, a lumbar spine disorder was not noted on induction examination in April 1966. Considering the evidence of record, the presumption of soundness is for application. There is a two-pronged test for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable (obvious or manifest) evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the only evidence suggesting a pre-existing lumbar spine disorder appears to be the Veteran's lay statements that he had back pain since a pre-service car accident. The standard required to rebut the presumption is a high one and on review, the record simply does not contain clear and unmistakable evidence that a lumbar spine disorder pre-existed the Veteran's period of active duty service. Thus, the presumption of soundness has not been rebutted and the in-service element is established. Notwithstanding, the Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. See 38 C.F.R. § 3.303; Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). Evidence of record clearly shows a current lumbar spine disability, to include degenerative arthritis, spinal stenosis, and degenerative disc disease. As discussed, the Veteran was seen on several occasions during his period of active duty with complaints of low back pain. While degenerative arthritis was not noted during service, the Board acknowledges that an impression of chronic postural lumbosacral strain was provided. Notwithstanding, the Veteran's spine was reported as normal at separation and he specifically denied having back trouble at that time. Further, the December 2020 VA examiner indicated that the episodes during service were acute. Given this, the Board does not find evidence of a chronic lumbar spine disorder during active duty. It is observed that for the showing of chronic disease during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." See 38 C.F.R. § 3.303(b). There is also no evidence of lumbar spine arthritis manifested to a compensable degree within one year following discharge from this period of service. Regarding whether the Veteran's current lumbar spine disorder is otherwise related to service, the Board finds the preponderance of the evidence against the claim. The December 2020 VA examiner indicated that it was not related to the Veteran's complaints or military duties to include rucking or physical training. On the contrary, the examiner related it to the aging process. The opinion was based on a review of the record and supported by adequate rationale to include consideration of imaging and alternate etiology. The opinion is considered highly probative. The Board acknowledges the treatise evidence noted in the November 2020 informal hearing presentation but finds it general in nature and not sufficient to establish a nexus in this case, especially considering the VA opinion as set forth. Having determined that the Veteran's back disorder is not related to his initial period of active duty, the Board must next consider his period of active duty training in August 1969. The appellant established "veteran" status for this period based on the grant of service connection for other disabilities incurred during the same period of active duty for training. See Hill v. McDonald, 28 Vet. App. 243 (2016). In this case, an entrance examination was not conducted prior to the Veteran's period of active duty for training in August 1969 and thus, the presumption of soundness cannot apply to this period. Regardless, and given the discussion above, the disability is not shown to have pre-existed this period of service and the presumption of aggravation is not for application. See 38 C.F.R. § 3.306. The Veteran is competent to report that he injured his back during active duty for training and that he has had continued pain since that time. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Service treatment records clearly show that the Veteran suffered a fall during his August 1969 period of active duty for training. The overall evidence of record, however, does not show that he sustained a lumbar spine injury at that time. That is, contemporaneous records are extensive and reference no complaints or findings related to the back, and the December 1969 medical board examination indicated that the spine was normal. The Board finds these records more probative than lay statements made years after the fall. Additionally, the December 2020 VA examiner noted no evidence of traumatic injury to the lumbar spine and stated that the current lumbar spine disorder was not related to this fall, but rather, to the aging process. As above, this opinion is considered highly probative. In summary, the preponderance of the evidence is against finding that the Veteran has a lumbar spine disorder related to a period of qualifying service. In making this determination, the Board acknowledges the Veteran's lay assertions. He has not, however, shown that he has the medical training, experience, or expertise to be competent to diagnose arthritis or to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's unsupported lay statements are not sufficient to establish in-service onset or nexus, nor do they outweigh the probative December 2020 VA opinion. (Continued on the next page) The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. The claim is denied. CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.