Citation Nr: 21040914 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-34 125 DATE: July 7, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran's lumbar spine disability is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to December 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2017 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2018 and March 2021. Entitlement to service connection for a lumbar spine disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for chronic diseases, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran contends he is entitled to service connection for a lumbar spine disability due to his active service. The Veteran has a current diagnosis of degenerative arthritis of the thoracolumbar spine and spondylolisthesis. See, November 2019 VA Examination. The Veteran was diagnosed in 2017. See, August 2017, CAPRI records. The Veteran's service treatment records (STRs) show in August 1974 the Veteran was treated for bruises on his back and arm. He also exhibited loss of motor movement, lateral instability, and tenderness to the back. The Veteran was afforded a VA examination in November 2019. While the examiner did note the Veteran had a current diagnosis of degenerative arthritis of the thoracolumbar spine and spondylolisthesis, the examiner opined the Veteran's current disability was less likely than not related to his service. The examiner explained there was no radiological evidence of any of the Veteran's condition during service and there were no lineal treatment seen during service or one year after. The examiner stated the Veteran's disability was likely due to the natural aging process. However, the examiner failed to address the August 1974 note in the STRs, as well as address the Veteran's contentions he has had back pain since service. As such, the matter was remanded to address that concern. Per the remand instructions, in March 2021 the VA examiner evaluated the Veteran's file, specifically addressing the August 1974 STR note and the Veteran's contentions his back hurt since service. The examiner stated the condition of the Veteran's back, in August 1974, without motion in his legs and the bruises on his back were acute and transient. Stating there was no evidence of any sequelae thereafter, with no lineal treatments, no further complaints of back pain, and no further complaints of neurological deficits. The examiner explained that radiology studies were not done in service and any that were done years after service cannot be attributed to pain in service. The examiner explained the Veteran's back pain is due to the aging process and his diagnosis of degenerative arthritis of the thoracolumbar spine and spondylolisthesis, which was diagnosed years after his service. The Board finds these opinions to be persuasive. They provided a clear conclusion with supporting data, and a reasoned medical explanation. They specifically consider the medical evidence of record and apply this evidence to known medical principles. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran has stated he has experienced lumbar pain since discharge, that he has self-medicated, and used private medical help. He also stated he did not keep copies of these records. See, March 7, 2017 Notice of Disagreement. The instant matter was previously remanded in August 2018 to obtain these private records. One private record was received, but it did not discuss the in-service injury or a nexus opinion. See, April 22, 2017 Non-Governmental Facility Medical Treatment Record. The record does show several instances of the Veteran complaining of chronic back pain. However, the record shows the complaints first began in March 2017. The Veteran does state on several instances that his back pain is chronic, but he does not give a definitive date to the start of pain, merely describing it as chronic. The Board does acknowledge the Veteran's assertions that his present lumbar spine disability is related to an in-service injury. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his current disability, especially in light of the VA examiners' conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of the current lumbar disability in service or within one year of separation from service. See id. Based on the evidence, there is no indication the Veteran's lumbar spine disability manifested during service, within one year of separation from service, or has had continuity of symptomatology since service. As such, entitlement to service connection is denied. ROBERT N. SCARDUZIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.