Citation Nr: 21031805 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 10-38 606 DATE: May 24, 2021 ORDER Entitlement to service connection for low back disability, to include as secondary to service-connected bilateral medial tibial stress syndrome, is denied. FINDING OF FACT The preponderance of the evidence is against finding that low back disability began during active service, or is otherwise related to an in-service injury or disease, or is caused or aggravated by service-connected bilateral medial tibial stress syndrome. CONCLUSION OF LAW The criteria for entitlement to service connection for low back disability, to include as secondary to service-connected bilateral medial tibial stress syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2002 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). Most recently, the Board issued a remand in February 2021 instructing the RO to obtain a VA examination to determine the nature and etiology of the Veteran's low back disability. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained February 2021 VA examination. The Board finds the RO substantially complied with the February 2021 remand directives. Entitlement to service connection for low back disability. Generally, the Veteran contends that her low back disability was caused by her duties in service. See e.g., September 2009 Notice of Disagreement; September 2010 VA Form 9; May 2018 Appellate Brief; January 2021 Appellate Brief; May 2021 Appellate Brief. Service connection may be granted for a 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). Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. Service treatment records (STR), including the November 2006 report of medical history and November 2006 separation examination, did not show a complaint, diagnosis, or treatment of a low back disability. Post-service treatment records show the Veteran has a current diagnosis of a low back disability, but no low back disability developed within one year of discharge from service which was in 2006. See e.g., February 2007 General examination (normal spine); July 2007 San Juan VAMC (back pain resolved); January 2009 Primary Care Note (mild multi-level degenerative changes of the lumbar spine); May 2010 Gulf War examination (mild multi-level degenerative changes of the lumbar spine); September 2014 Primary Care consult (chronic low back pain). The Veteran submitted a private nexus letter in August 2009 authored by Dr. N. O. The doctor opined that it was more probable that the Veteran's back problems were service connected as she was in good health until she started physical training in the service. The Veteran was afforded a VA examination in April 2010 and reported that she started having lower back pain after performing heavy lifting, physical training, and sit-ups during active duty service, and was treated in sick call with anti-inflammatory medications, rest, and an exercise profile. A January 2019 VA medical opinion was obtained. The examiner indicated that the Veteran's lay statements were reviewed and considered. The examiner confirmed a diagnosis of lumbar strain and degenerative lumbar disc disease and opined that the Veteran's lumbar spine disability was less likely as not related to service or secondary to her service-connected bilateral medial tibial stress syndrome. The examiner explained that medical evidence did not support having bilateral medial stress syndrome could possibly cause lumbar strain and degenerative lumbar disc disease. These conditions were completely unrelated to each other anatomically and by pathophysiology. The Board found this opinion to be inadequate. See February 2021 Board Remand. While the examiner acknowledged the Veteran's competent lay reports regarding the onset of her back symptoms, those were dismissed in the opinion simply because there was no documented evidence of treatment for a back disability in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, the January 2019 VA examiner did not provide any rationale as to why the Veteran's back disability is less likely as not aggravated by the service-connected bilateral medial tibial stress syndrome. A new examination was obtained in February 2021. The diagnosis of degenerative arthritis and lumbar strain was confirmed. The Veteran informed the examiner that she believed her disability was related to her military service. As noted in the examination report, the examiner acknowledged the Veteran's lay statements of duties in service, private treatment records, and Dr. N.O.'s medical opinion. The examiner opined that the Veteran's lumbar spine disability less likely than not had its onset during service or was otherwise related to service. The examiner reasoned this to be true because there was no evidence of complaints in the back area, sick calls, or treatments given for any back condition during service. STR show the Veteran was treated for bilateral leg pain and headaches on several occasions but not a back condition. The examiner opined that the Veteran's back disability most likely had its onset after service due to weight, aging or any postural changes. The examiner also opined that the Veteran's back disability was less likely than not aggravated by or caused by the service-connected disability. There was no evidence in medical literature that state shin splits could have any anatomic, structural, bio mechanic or pathophysiologic effect in the lumbar spine. The Board acknowledges the Veteran's assertion that her low back disability was related to her military service. However, a lay person is not considered competent to medically attribute low back disability to military service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent February 2021 VA examiner answered the question and did not support a causal relationship between the Veteran's low back disability and military service. Overall, the evidence of record found that the Veteran's current low back disability did not start in service, manifest within one year of service, or was related to service or any service-connected disability. There was no evidence of a complaint, diagnosis, or treatment of low back disability while in-service. The Board acknowledges that in July 2007, a treatment record showed "back pain resolved;" however, this is based on the Veteran's statements and there is no indication in the treatment records of any documented back and treatment for such within one year of separation from service. In fact, the Veteran was not diagnosed with back pain until 2009, which was nearly 3 years after her discharge from service. The medical opinion submitted by the Veteran was general in a nature. It restated the etiology of the Veteran's condition based on the Veteran's statements. In addition, the STR do not support the conclusion of the private medical opinion. The adequate February 2021 VA examiner's opinion found that the medical literature did not support a relationship between the Veteran's lumbar spine and service and/or the service connected shin splits. Accordingly, the criteria for entitlement to service connection for low back disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for low back disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.