Citation Nr: 21031926 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-40 798 DATE: May 25, 2021 ORDER Service connection for a lumbar spine disorder, to include scoliosis and lumbar spine degenerative disc disease, is denied. FINDING OF FACT The Veteran's lumbar spine disorder did not manifest during active service; scoliosis and arthritis did not manifest within one year of separation from active service, and there is no indication that a lumbar spine disorder was causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from August 1972 to July 1974. The case on appeal stems from an April 2015 rating decision by the Regional Office (RO). Unfortunately, the Veteran died during pendency of his appeal in November 2017. The Veteran's surviving spouse has been substituted as the claimant on appeal by the Agency of Original Jurisdiction. See July 2018 VA letter. In August 2016, the Veteran requested a Board hearing. In January 2019, the appellant requested to withdraw the Veteran's request for a hearing. As such, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. The case was previously before the Board in December 2019, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection The Veteran asserted that his lumbar spine disorder was due to active service. He further asserted that the physical activities he participated in during his active service aggravated his neck and back. STRs are silent for complaints of or treatment for a lumbar spine disorder during service. At the Veteran's June 1972 entrance physical and May 1974 separation physical, he had normal examinations of his spine. In addition, on medical history reports completed in conjunction with these physical, the Veteran specifically denied having recurrent back pain. A September 1998 private treatment record indicated that the Veteran reported being struck in the back by his supervisor. The Veteran stated that he had been experiencing back pain since that time. The evaluation showed no bruises on the lower back and there was no evidence of infection most compatible with traumatic hematuria. Further, a February 2007 private treatment record reported that the Veteran had an automobile accident, and spine X-rays were normal. The examiner noted subjective arthralgias. An August 2007 private treatment note indicated mild scoliosis. In September 2007, a private chiropractor indicated that the Veteran had moderate scoliosis that led to early degenerative disc disease and osteoarthritis. The chiropractor reported that the Veteran treated since May 2006 for bouts of back and neck pain. In an April 2008 follow up visit, the Veteran reported that the physical activities in service aggravated his back. A May 2008 private treatment record indicated lumbar disc disease. The VA treatment records show from 2015 forward showed complaints of back pain. An October 2014 private physician opined that the Veteran had scoliosis and during his time in the military, and that active service aggravated the Veteran's scoliosis. The opinion of the Veteran's physician is given no probative value. As discussed above, the Veteran's STRs do not document any back injury or any other lumbar spine symptoms, complaints, treatment, or diagnosis. His physician did not provide any rational and instead just stated a conclusion. In addition, his physician did not state that he reviewed the Veteran's claims file. As such, the opinion of the Veteran's physician is given no probative value as it is not consistent with nor based on the Veteran's medical records. Based on the foregoing, the Board finds that service connection is not warranted for a lumbar spine disorder. Although the Veteran has current diagnoses of scoliosis and lumbar disc disease, there is no evidence in the record of an in-service lumbar spine injury or a relationship between the Veteran's current lumbar spine disorder and his active service. Moreover, the Veteran has not alleged any specific injury, disease, or event in service to which a lumbar spine disorder could be related. Furthermore, the medical evidence does not support the assertion that scoliosis or lumbar disc disease existed prior to or was aggravated during service. The enlistment and separation physicals showed that the Veteran had normal examinations of his spine, and he specifically denied having recurrent back pain. In addition, the Veteran was not diagnosed with scoliosis or lumbar disc disease for more than 30 years after separation, such that presumptive service connection does not apply in this case. 38 C.F.R. §§ 3.307. The passage of time between discharge from active service and the medical documentation of a claimed disability is also a factor that weighs against the claims for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, the Board finds that a lumbar spine disorder did not manifest during service and has not been shown to be causally or etiologically related to an event, disease, or injury in service. Importantly, there are no competent medical opinions of record that support the Veteran's assertion of a nexus in this case. VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for his claimed lumbar spine disorder. In this case, the evidence does not show either that an event, injury, or disease occurred in service or persistent or recurrent symptoms of a disability. Therefore, entitlement to a VA examination is not warranted for this service-connection claim. McLendon, 20 Vet. App. at 79. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, as the preponderance of the evidence is against the claim for service connection, and the claim must be denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.