Citation Nr: 22004530 Decision Date: 01/27/22 Archive Date: 01/27/22 DOCKET NO. 18-14 761 DATE: January 27, 2022 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The Veteran's lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service and diagnosed arthritis did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1956 to July 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a hearing conducted in November 2019, with the Veteran's agent and spouse present. A transcript of this hearing was produced and associated with the Veteran's claims file. This Veterans Law Judge who conducted this November 2019 hearing has since retired. In December 2021, the Veteran was sent a letter informing him that the Veterans Law Judge who conducted his November 2019 hearing was no longer employed by the Board and he was offered the opportunity for a new hearing. The letter informed the Veteran that if a response was not received within 30 days, it will be assumed that he did not want another hearing. The Veteran did not respond to this letter. In September 2020, this matter was remanded by the Board for additional development. Specifically, this matter was remanded to obtain an etiology opinion. Such an opinion was obtained in November 2021. The Board therefore determines that there has been substantial compliance with its previous remand. A November 2021 rating decision granted the Veteran's claim for service connection for bilateral hearing loss and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). This appeal has been advanced on the Board's docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a lumbar spine disorder is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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 servicethe so-called "nexus" requirement. 38 C.F.R. § 3.304. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, for veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service 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). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary 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). The Board notes that an October 2017 National Personnel Record Center (NPRC) response indicated that the Veteran's service records were fire-related. However, the Veteran's service treatment records are contained in the claims file as they were obtained in conjunction with his June 1960 claim for service connection for a pilonidal cyst. The Veteran generally contends that he fell down a staircase while aborad the U.S.S. Newport News and injured his back. He reported to sick bay, was treated for a laceration at his back, and was also given aspirin, but thereafter he resumed his duties. See generally Hearing Tr. (Nov. 5, 2019), at Pages 23-5. While the Veteran's testimony was limited by poor memory, the Veteran's spouse recalled that he wore a back brace, that he complained of back pain ever since discharge, and that he also sought treatment from a chiropractor Dr. P.A. in Brooklyn in 1972. See id. at Pages 25-30. Service treatment records are negative for complaints, treatments or diagnoses related to a lumbar spine disorder. A July 1959 service discharge examination found the Veteran's spine to be normal and that there were no scars or identifying marks on the back. The Board has first considered whether service connection for a lumbar spine disorder is warranted on a presumptive basis. However, the record shows that the Veteran's current lumbar spine disorder did not have its onset during service or for many years thereafter. Arthritis was not diagnosed within one year of separation from service. A July 1960 VA examination report found that the Veteran's musculoskeletal system to be negative for diseases or injuries, scars or functional effects. In addition, an October 2021 VA examination did not diagnose arthritis. As the Veteran's has not been diagnosed with arthritis that manifested during service or within one year of separation, the provisions of 38 C.F.R. §§ 3.307, 3.309 are not for application in this matter. With regards to direct service connection, an October 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's lumbar spine disorder was incurred in or caused by the claimed in-service injury, event or illness as the Veteran's in-service low back pain was acute only and there was no evidence from a review of the claims file of a chronicity of care. The examiner reasoned that the subjective symptoms and physical examination revealed low back pain, that the examiner could not determine if the pain was due to the fall from the ladder without resorting to mere speculation as the Veteran had been informed that some of his medical records were destroyed in a fire. The examiner noted that the Veteran was unable to recall the names and locations of the doctors he sought treatment from the in the 1960s and 1970s for is back pain. The Board finds this VA opinion to be highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as back pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran is competent to report having experienced symptoms of having back pain, he is not competent to provide a diagnosis in this case, or to determine that these symptoms are somehow related to his active service. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, supra. Consequently, the Board gives more probative weight to the medical evidence in this case. For the foregoing reasons, the Board finds that service connection for a lumbar spine disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.