Citation Nr: 22005481 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 16-03 693 DATE: February 2, 2022 ORDER Entitlement to service connection for a low back disability denied. Entitlement to service connection for a left hip disability, to include as secondary to a low back disability is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's current back condition began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's left hip condition is not secondary to any service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a left hip disability, to include as secondary to a low back disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to July 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the matters for additional development in April 2019, January 2021, and July 2021. Now the matters are returned to the Board. SERVICE CONNECTION A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. 1. Low back condition The Veteran is seeking service connection for a low back condition. First, the record shows the Veteran's diagnoses of lumbar strain and degenerative arthritis of the spine. See November 2019 Back Conditions Disability Benefits Questionnaire (DBQ). Thus, the Veteran has current low back disability for service connection purposes. The Board notes that the Veteran's service treatment record (STR) does not show any complaints, diagnosis, or treatment related to a back condition. In this regard, the Veteran first asserted that he had injured his back after falling off a pole during a military training. See November 2019 Back Conditions DBQ. During the November 2018 Board hearing, the Veteran testified that he had injured his back while driving and jumping on and off trucks, routinely lifting heavy items, and frequently running in full gear during his service in Korea. At the hearing, the Veteran did not mention any falling accident in service. The Veteran was afforded additional VA examination since the November 2018 hearing, during which he reported that he also had injured his back during a motor vehicle accident in 1972. As to the motor vehicle accident in service, one accident on February 26, 1973 was documented in the STR. However, the STR only notes the Veteran's complaint of neck pain after the accident. After a careful review of the records, the Board notes that the first medical evidence on record documenting the Veteran's back pain is from July 1999, which is approximately 25 years after his separation. See July 8, 1999 Telephone Encounter Note. Notably, a March 2009 private treatment record shows that the Veteran was seen for a low back injury sustained from lifting at work. See March 17, 2009 Urgent Care Note. The record shows that the Veteran received physical therapy treatments for the March 2009 work injury from March 2009 to May 2009. See Physical Therapy Note received on May 31, 2013. In October 2011, the Veteran reported that he had been having chronic back pain for the past 5 to 7 years, and it is exacerbated by heavy lifting at work. See October 7, 2011 Treatment Note. Another private record from November 2012 shows that the Veteran had additional back injury while moving boxes. See November 1, 2012 Treatment Note. As to the nexus between the Veteran's current back condition and his service, VA examiners gave negative opinions. VA medical opinions were provided in November 2019, March 2021, and October 2021. The November 2019 VA examiner provided that the record does not show the Veteran's in-service back complaints, and the physical therapy documents a back injury date of March 4, 2009, which is 35 years after the Veteran's military service. The March 2021 VA examiner reasoned that there is no evidence of disruption to the articular surface of the joint during the Veteran's active duty service; thus, the mild degenerative disc disease shown in a 2016 X-ray is most likely a natural aging process. The examiner also pointed out that the first documentation of back pain was made in 1999, and the records since 1999 show intermittent back pain with a negative X-ray in 2009. The examiner provided that this is consistent with the Veteran's job of commercial fisherman at the time. See also May 2001 Primary Care Note (the Veteran's work as a commercial fisherman was noted). The examiner stated that disc degenerative and accompanying arthritis is a common development, and cited to a medical literature providing that age-related changes are present in 40 percent of adults over the age of 35 years and in almost all individuals over the age of 50 years. The examiner concluded that it is more likely that the cumulative effect of the wear and tear process over many years would have been more responsible for the Veteran's degenerative arthritis as compared to the Veteran's claimed minor events or injuries during active duty service. Moreover, the October 2021 VA examiner noted that the Veteran was diagnosed with degenerative arthritis and disc disease of the lumbar spine at the age of 63 years, which is 46 years after his military service. The examiner stated that the risk of developing arthritis increases with age, and the medical evidence is silent for an assessment, diagnosis, treatment, or referral for a back-related injury or chronic back condition during or 1 year after service. As to the Veteran's contention of injuring his back from falling from telephone poles during service, the examiner cited to a medical literature and provided that such a falling is likely to result in major injuries to the musculoskeletal system, including fractures or death. The examiner noted that the Veteran was not treated after the claimed falling incident and was able to continue his military duties. The examiner also provided that the Veteran did not offer the same contention that he provided during the November 2018 Board hearing, but only reported in-service injuries after falling from telephone poles and a motor vehicle accident. To the extent that the Veteran has asserted that his current back condition is a result of his service, the Board finds that those assertions are not entitled significant probative weight. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2) (2020); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Based on above, the Board finds that the evidence of record persuasively weighs against finding that the Veteran's current back condition began during active service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a back disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Left hip condition The Veteran contends that his left hip condition is a result of his low back condition. The record shows the Veteran's current diagnosis of left hip strain. See November 2019 Hip and Thigh DBQ. However, the Veteran's low back condition is not service-connected. Moreover, the March 2021 VA examiner opined that the claimed left hip condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the 1977 report of medical examination showed no hip complaints, and no diagnosis of a chronic hip condition was made during active duty service. Based on above, the Board finds that the Veteran's left hip condition is not secondary to any service-connected disability, and is not otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a left hip disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.