Citation Nr: 21040782 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-01 331 DATE: July 7, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a neck/upper back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's low back disability had an onset in service. Any arthritis was first shown years after service. 2. The preponderance of the evidence is against a finding that the Veteran's neck/upper back disability had an onset in service. Any arthritis was first shown years after service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a neck/upper back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to September 1982. The Board of Veterans' Appeals (Board) remanded this matter for further evidentiary development in December 2018. The case has returned to the Board for appellate review. Service Connection Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303 (b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for a neck/upper back disability The Veteran seeks entitlement ot service connection for a low back disability and a neck/upper back disability. The Veteran contends that he was injured in October 1980 while on active duty. Specifically, he contends that he was hit in the head with a hatch from an armored personnel carrier which resulted in a trauma to his back and neck. The Veteran further contends that he frequently carried heavy items during his military service. The Veteran asserts that he has been having low back and neck pain since his military service. Regarding current disabilities, the Veteran's private treatment records indicate a diagnosis of degenerative and probable chronic posttraumatic changes of the lumbar and lower thoracic spine in July 2003. There is also a diagnosis of lumbar radiculopathy at L5-S1 by EMG in August 2004. The Veteran's VA treatment records indicate that the Veteran has a diagnosis of cervical spondylosis in June 2013. Thus, there is evidence of current back and neck disabilities. Regarding an in-service incident, the Veteran's service dental records show a tank accident in January 1981. Further, the Veteran's service treatment records (STRs) indicate that he complained of low back pain in July 1982. The July 1982 STR note that there were no recent injuries and there was no medical finding concerning the Veteran's back. As for a nexus, the Veteran's post-service treatment records are silent for complaints of or treatment for a back or neck disability until 2003. The Veteran was afforded a VA examination in July 2017 for his back. The July 2017 VA examiner provided a negative nexus opinion for the Veteran's back. The examiner provided the rationale that the Veteran's symptoms are subjective, objective exam was normal, there was no evidence of a chronic condition, and a nexus had not been established. The examiner noted that x-ray imaging was not clinically indicated. The Veteran's neck was not examined at that time. The Board found the July 2017 examination to be inadequate for rating purposes, so the Board did not rely on this examination when making this present decision, but this examination provides the Board with a general notion of the Veteran's back disability symptoms throughout the course of this appeal. As previously mentioned, the Board remanded this matter, finding the July 2017 VA examination to be inadequate for rating purposes for the Veteran's back disability and finding a VA examination for the Veteran's neck disability was warranted. The Veteran's private physician submitted a letter in July 2020 stating that the Veteran was treated by him for neck and back pain between 1982 to 1997 but the treatment records are not available from that time. No particular opinion or rationale was provided. The December 2020 VA examiner confirmed the Veteran's diagnoses of thoracic and lumbar degenerative arthritis, thoracic and lumbar spine degenerative disc disease, lumbar scoliosis, and left lower extremity lumbar radiculopathy. The examiner provided a negative nexus opinion for the Veteran's disabilities and provided the rationale that the Veteran has reported symptoms of back pain and the diagnoses rendered are all due to thoracic and lumbar spine degenerative conditions. The examiner further provided that the Veteran's claims file does not have any record that he sustained any radiographically confirmed fracture of the spinal axis and absent any documentation of any kind of fracture in the spinal column at the time of the reported tank accident, it is less likely than not that the Veteran's diagnosed disabilities are due to his military service. The VA obtained an addendum opinion in January 2021 to address the contention that the Veteran's disabilities manifested within one year after discharge from service or noted during service with continuity of the same symptomatology since service. The January 2021 examiner provided that the Veteran was not seen for complaints of low back pain until November 2003. The examiner acknowledged the letter from the Veteran's private physician and noted that the letter does not maintain that the Veteran was seen for arthritis between 1982 and 1997 to warrant continuity of symptomatology. The Veteran's private physician submitted another statement in January 2021 stating that the Veteran was treated for back and neck pain related to thoracic and lumbar arthritis and degenerative disc disease. No particular opinion or rationale was provided. No specific reports of x-rays or other testing were noted or described. The VA obtained another addendum opinion in February 2021 in response to the January 2021 letter. The February 2021 examiner provided a negative nexus opinion and provided that rationale that the letter does not say when the Veteran was first diagnosed and the examiner noted that the Veteran submitted an authorization form stating he was treated by the private physician who submitted the letter from 1985, which was 3 years after discharge. See May 2013 Authorization for Release of Information. The February 2021 examiner provided that there was no evidence of a chronic condition during his military service to account for current spinal conditions. The examiner further provided that there is no radiographic evidence of a back or neck disability until 2003, the Veteran was seen for a visit in July 1982 for low back pain without any medical findings by the examiner. The Board finds this opinion well-reasoned and thoroughly considered the Veteran's complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that there is no opinion in the record to the contrary. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran contends that he believes his current back and neck disabilities to be due to his military service. The Board acknowledges the Veteran's lay statements regarding the nature and etiology of his low back disability. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of his back and neck disabilities. The Veteran's disabilities are first shown years after service, and there is no clinical evidence that it is the type of disability that would be due to his duties in service years earlier. The February 2021 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a low back and a neck/upper back disability. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.