Citation Nr: 21040418 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 20-20 465 DATE: July 3, 2021 ORDER Entitlement to service connection for a lower back disorder is denied. FINDINGS OF FACT 1. A disease or injury of the lumbar spine was not identified during service. The Veteran did complain of low back pain during service. 2. A lower back disorder due to disease or injury was not manifest during active service and arthritis was not manifest within one year of separation. Low back pathology (disease or injury) is unrelated to service. CONCLUSION OF LAW A low back disorder due to disease or injury was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 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 January 1967 to April 1967. The issue before the Board was previously remanded in January 2021 for a new medical opinion and private medical records requests. VA attempted to reach out to all medical providers that the Veteran provided; however, no records were able to be returned. Finally, the Board notes that in the January 2021 decision, the Board found that the evidence does not demonstrate that lumbosacral spine arthritis clearly and unmistakably preexist service. 1. Entitlement to service connection for a lower back disorder Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Arthritis is a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 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, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b). The Veteran contends that his current lower back disorder, identified as arthritis, is related to service. The Veteran notes that he suffered from back pain prior to service, and believes that foot issues which were incurred during night marches, aggravated his back pain. At entrance, the Veteran reported a history of back pain. The examination disclosed that the back was entirely normal. Service treatment records reflected issues related to the Veteran's back. On February 21, 1967, the Veteran's back was treated with heat. March 1, 1967 records note that the Veteran had a sore back and was referred the Veteran to the hospital; a second medical record referenced ER treatment and noted low back pain. A March 13, 1967 medical record noted an impression of chronic back pain, that such existed prior to service and referencing lumbosacral spine x-rays (which are not contained in the STRs). A March 15, 1967 Report of Medical Examination form noted upon clinical evaluation "spine, other musculoskeletal" as abnormal and noted chronic back pain. Under the physical profile section, 4s were noted for the "P" and "L" items. Under the defects or diagnoses section, chronic back pain was noted. The Veteran was noted to be not qualified for further military service due to chronic back pain. On the accompanying Report of Medical History form, the Veteran stated "I have had chronic lower back pain since the age of 16 until the present." The Veteran also reported having worn a brace or back support and under a section of the form completed by a physician it was noted "Wore a Brace In past, no complications and no sequelae." A March 31, 1967 Medical Board Proceedings form noted that the Veteran was medically unfit for further military service due to hyperhidrosis involving the hands and feet. This form did not reference the Veteran's back. An April 12, 1967 medical record (the last day of the Veteran's active service) referenced the March 15, 1967 separation examination and the Veteran reported that since this examination "[t]here has been no change in my medical condition." Chronologically, arthritis of the lower back is first referenced in 2013. A September 2013 medical record stated the Veteran "[h]as history of back pain but usually better" and that noted an assessment of chronic low back pain. An October 2013 lumbosacral spine x-ray report noted an impression of "[m]oderate to severe spondylosis at L5-S1" and "[m]ild spondylosis at L21-3, L3-4 and L4-5." A July 2017 note stated "having back pain on and off for long time but return in the last week" and noted an assessment of chronic low back pain. A July 2017 lumbosacral spine x-ray report noted an impression of "[m]ild multilevel degenerative changes, most prominent at the lumbosacral junction and not significantly changed since 2013." The Veteran was afforded a new VA examination in March 2021. The VA examiner concluded that the Veteran's lumbosacral spine arthritis was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner noted that while the Veteran's records notate chronic back pain, the back pain could not have been found to be chronic back pain since "Chronic pain is that which is lasting for at least 12 weeks or approximately 3 months... The STRs as noted do not establish chronicity for the condition." The VA examiner noted that there is lack of continuity for lumbosacral spine arthritis. Finally, the VA examiner noted that the Veteran's back pain was more likely musculoskeletal in origin. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the March 2021 VA medical opinion that the Veteran's lower back disorder is less likely than not related to service as probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Pain without identified disease or injury Several theories must be addressed in this case. Here, despite his reports of back pain at entrance, the spine was normal and the presumption of soundness must be considered. However, even if he had back pain prior to service and during service, the matter does not end. The law is clear, in order to warrant a grant of service connection under section 1110, there must be evidence of disability and such disability must be due to disease or injury. Such factor was addressed by the Federal Circuit: For veterans, basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131--the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the following words: "For disability resulting from personal injury suffered or disease contracted in the line of duty. . . ." 38 U.S.C. §§ 1110, 1131 (1994). Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). We are fully aware of a recent Federal Circuit case that addresses the presence of pain, representing disability. We agree that pain may result in disability. However, this is not a Gulf War case and the law addressed in Sanchez above remains unchanged. The disability must be due to a disease or injury. Here, we accept that he had pain before and during service. However, acquired pathology, disease or injury, was not identified prior to service, during service or within one year of separation from service. Disability under section 1110 or 1131 without disease or injury does not warrant a grant of service connection. Sanchez. Because that is the case, further discussion of the presumption of soundness is not warranted since the condition at issue was not due to an identified disease or injury. In the absence of disease or injury service connection is not warranted even if the pain increased in severity during service (in a non-Gulf War case). The analysis here parallels the analysis in Beno v. Principi, 3 Vet. App. 434 (1992), the absence of acquired pathology limits the scope of the presumption of soundness when there is no acquired disease or injury. Identified pathology (disease or injury) After separation from service, medical professionals have identified pathology to include degenerative changes, arthritis, and spondylosis. However, acquired pathology was not identified during service, within one year of separation from service or within decades of separation from service. Furthermore, there is no competent evidence linking the remote diagnoses to service. We also note that while the Veteran had back pain during service, he did not have characteristic manifestations sufficient to identify a chronic disease entity (arthritis) during service or within one year of separation from service. In regard to continuity of symptoms, he did not have continuity of arthritis or any acquired pathology. Stated differently, the back pain he had during service is unrelated to the post service pathology. The Board has considered the lay statements of the Veteran regarding his lower back disorder. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of a lower back disease or injury, to include lumbosacral spine arthritis, during active service, or within a year of separation. In sum, there is insufficient competent and probative evidence linking the post service pathology to service, to include his complaint of back pain during service. The more probative evidence establishes that the Veteran did not have lumbosacral spine arthritis during service and that such disorder is not related to any event in service. The evidence establishes that the remote onset of lumbosacral spine arthritis is unrelated to service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.