Citation Nr: 21032719 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-22 675 DATE: May 27, 2021 ORDER Entitlement to service connection for a low back disorder, to include as secondary to service-connected left knee disorder, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a low back disorder, to include arthritis, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease, or is caused or aggravated by his service-connected left knee disorder. CONCLUSION OF LAW The criteria for service connection for a low back disorder due to service or service-connected left knee disorder are not 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 November 1971 to November 1974. This issue was remanded by the Board in March 2018, December 2019, and December 2020 for further development. The issue has since returned to the Board for appellate review. Entitlement to service connection for a low back disorder, to include as secondary to service-connected left knee disorder, is denied. The Veteran asserts that he is entitled to service connection for a low back disorder on a direct or secondary basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's low back disorder did not manifest during, within the year following, or as a result of active service, and was not caused or aggravated by a service-connected disability. As such, service connection cannot be established on a direct or secondary basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). In a January 1972 service treatment record (STR), the Veteran complained of pain in the side of the back. He stated that he fell. The medical provider assessed the Veteran to have a bruised muscle. On the October 1974 STR separation examination, the medical provider observed the Veteran's spine to be normal. On the October 1974 report of medical history, the Veteran indicated that he did not experience recurrent back pain. In a January 2010 private treatment record, at a follow up appointment for left total knee replacement, the Veteran complained of back pain with radicular symptoms in the bilateral lower extremities. In a February 2010 private treatment record, the medical provider performed imaging of the lumbar spine, and the imaging demonstrated degenerative disc disease (DDD). In a March 2010 private treatment record, the Veteran stated that he has experienced back pain from the past three years. He stated that he may have injured himself three years prior and took a couple of months off 9from work and did physical therapy. He stated that after he rehabilitated his knee, he started having increased pain complaints in his right low back. In a March 2010 private treatment record, the medical provider stated the Veteran presented with complaints for low back pain and stiffness, which radiate into the hips and thigh. The medical provider stated the pain has been present for approximately one year and there is no history of injury. In a March 2013 VA treatment record, the Veteran presented with low back pain for the past eight to nine years. The Veteran stated the low back pain started to become more severe about four to five months ago. He stated the pain is worse after getting up from prolonged sitting, lifting, walking, or standing for more than an hour. On the April 2014 back VA examination, the examiner indicated the Veteran has a diagnosis of intervertebral disc syndrome and DDD. The examiner opined that the Veteran's back disorders are less likely than not caused by service. The examiner reasoned that there is no evidence of any connection. The examiner stated there is no clearly documented continuum of care from service until 2007. In a June 2014 substantive appeal, the Veteran stated that he sought medical treatment for the low back in service and is still suffering from this condition, therefore service connection is warranted. The Veteran asserts that he experiences muscle spasm and incapacitating episodes on a daily basis and is in constant pain. On the November 2018 VA back examination, the examiner indicated the Veteran has a diagnosis of DDD of the lumbar spine. The Veteran stated that the back symptoms began in 1972 when he was deployed in Korea. He stated that pain in his back began after he had surgery on his left knee. He stated he has pain in the lumbar spine most of the time. The examiner opined that the low back disorder was less likely than not caused by service. The examiner reasoned that the Veteran was seen only once while in the military for his back in January 1972. The examiner stated that at the separation examination, there is no mention of complaints with the back. The examiner also opined that the Veteran's low back disorder is less likely than not the result of any service-connected disorder. The examiner reasoned that the Veteran is noted to be walking with a normal gait. Therefore, the examiner found that it is less likely than not that his low back disorder is due to the total knee replacement. On the June 2020 VA medical opinion, the examiner opined that the Veteran's low back disorder is less likely than not caused by service. The examiner reasoned that during service, there is no evidence of a chronic lumbar disorder manifesting during service that has required continuous care and treatment. The examiner noted that the Veteran did have acute lumbar pain in 1972 for one day. The examiner stated that the Veteran was diagnosed with degenerative arthritis of the lumbar spine in 2010, many years after service. The examiner stated that a nexus has not been established. The June 2020 VA examiner also opined that the Veteran's low back disorder is less likely than not caused by a service-connected disorder. The examiner reasoned that the low back disorder and the left knee total knee replacement are not medically related. The examiner stated that the low back disorder is a separate entity entirely from the left total knee replacement and is unrelated. The examiner stated that the Veteran had a total knee replacement in 2009 and was diagnosed with lumbar spine degenerative arthritis in 2010. The examiner stated that there is no evidence of an antalgic gait and in 2018 the Veteran had a normal gait. Also, the examiner stated there is no medical literature that demonstrates that knee arthritis with joint replacement would cause lumbar spine arthritis and medical literature failed to demonstrate a causal relationship. On the March 2021 VA medical opinion, the examiner opined that the Veteran's low back disorder is less likely than not caused by service. The examiner reasoned that there is no evidence of a chronic back disorder from service. The examiner stated that the Veteran was treated in January 1972 for a bruised muscle due to a fall. The examiner stated that the in-service injury appears to have been acute and self-limited as the Veteran served two additional years without evidence of a back disorder. The examiner stated that the separation examination was negative for a chronic back disorder, including the Veteran's report of medical history. The examiner stated that it is unlikely that a significant back disorder arose in service and was present at separation that was not noted or unreported. The examiner stated that the Veteran had a clear onset of a low back disorder in 2010 or 2011, as evidence by imaging. The examiner stated that the acute and self-limited injury in service is not the type of injury to cause DDD. Medical literature states that DDD is considered a natural aging process due to wear and tear and natural desiccation of the disc. The examiner stated that the Veteran's DDD was age-appropriate at the time of diagnosis. The examiner stated that it is greater than 50 percent likely that men over the age of 50 will have DDD with the prevalence rising significantly per decade thereafter. The March 2021 VA examiner also opined that the Veteran's low back disorder is less likely than not due to his service-connected knee disorder. The examiner reasoned that a condition of one joint does not cause a condition of another joint or joint system, such as the spine. The examiner stated that this is particularly true of degenerative joint and degenerative spine disease. The examiner explained that simple gait accomodation due to the left knee condition does not and would not cause degenerative spine disease. The examiner noted that rare exceptions include leg length discrepancy and/or chronic, exaggerated Trendelenburg gait. Furthermore, the examiner stated there is no evidence of aggravation of the Veteran's DDD beyond its natural course due to any cause. The examiner stated the natural course of degenerative spine disease commonly leads to worsening symptoms and clinical manifestations requiring medical or surgical interventions. Based on the foregoing, the Board finds that the weight of the evidence does not establish that the Veteran's low back disorder was manifested in service or to a compensable degree in the first year following his separation from service. The first complaint of a low back disorder occurred in 2010, over 30 years after separation from service. Consequently, service connection for a low back disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the low back disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The weight of the competent and probative evidence also fails to establish that the Veteran's low back disorder is otherwise related to service. The Veteran's post-service VA and private treatment records are silent for an opinion relating his low back disorder to service. The only competent evidence in the record that addresses this question are the June 2020 and March 2021 VA medical opinions, which stated that the Veteran's low back disorder was not related to his service. As there is no other medical evidence to the contrary, and the June 2020 and March 2021 VA medical opinions were based on a full review of the record as well as an interview and examination of the Veteran, the Board finds these opinions persuasive. Also, there is no evidence that the Veteran's low back disorder is caused or aggravated by service-connected left knee disorder. The Veteran's post-service VA and private treatment records are silent for an opinion relating his low back disorder to a service-connected disability. The only competent evidence in the record that addresses secondary service connection are the June 2020 and March 2021 VA medical opinion, which stated that the Veteran's low back disorder is not caused or aggravated by service-connected left knee disorder. As there is no other evidence to the contrary, and the June 2020 and March 2021 VA medical opinions. The Board finds that the April 2014 and November 2018 VA medical opinions are not adequate. The examiners did not provide a rationale explaining the bases for the opinions. Specifically, the April 2014 VA examiner did not address the in-service complaint of a back injury. The November 2018 VA examiner did not provide and explanation regarding the lack of continuity of symptomatology or the lack of relation between the left knee disorder and low back disorder. Therefore, the Board does not find these opinions inadequate and not persuasive. Further, the Veteran's own statements relating his low back disorder to service or a service-connected disability are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service or related to a service-connected disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.