Citation Nr: 22013519
Decision Date: 03/09/22	Archive Date: 03/09/22

DOCKET NO. 20-22 284
DATE: March 9, 2022

ORDER

Entitlement to service connection for a back disorder is denied.

FINDING OF FACT

A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. 

CONCLUSION OF LAW

The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1954 to August 1957. He died in November 2020 and the appellant is his surviving spouse, who has been accepted as the substitute claimant for the purpose of processing this appeal to its completion.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Entitlement to service connection for a back disorder

As an initial matter, the Board notes that, in February 2018, VA determined that the Veteran's service treatment records could not be located and therefore were unavailable for review. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from possibly missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran was diagnosed with spinal stenosis and degenerative disc disease (DDD), which was confirmed by the December 2021 VA examiner. Therefore, the Board finds that the Veteran had a current diagnosis of the back.

Before his death, the Veteran contended that he injured his back in service when someone threw a percussion grenade on top of a mountain. It rolled down and threw him on his back. The Veteran stated that it injured his back, he had trouble walking after his separation from service, and visited chiropractors for treatment, but his back disorder progressively worsened after separation. The Veteran also worked as an auto mechanic and stated that after the injury he was placed on desk duty as a motor pool dispatcher. The Veteran was competent to describe his in-service duties, and the Board finds his statements to be credible as such is consistent with the nature and circumstances of his military service. Consequently, the only remaining inquiry is whether the Veteran's back disorder is related to his military service.

In this regard, VA obtained an opinion in December 2021. At such time, the examiner concluded that it was less likely than not that the Veteran's back disorder was due to his military service. As rationale, the examiner explained that he found no record of chronic or recurrent back problems beginning in the service and it was not likely that trauma to the back from a percussion grenade would cause DDD. In this regard, the examiner stated that the Veteran's age and activity related degeneration took place in the many decades since separation. It was further concluded that the percussion grenade would cause a sudden onset force which could cause a fracture or displacement of the vertebra, but doubtful it would lead to spinal stenosis or IVDS. The examiner also stated that no such findings were found in imaging or recent records. 

The examiner continued to explain that the explosion would lead to a whiplash like strain of the muscles and ligaments, but this would be acute and unlikely to last decades. The examiner also stated that a disability which began in service or was caused by some event in service must be considered "chronic" before a nexus for service connection can be established. Although the Veteran noted chronic problems since service, the examiner could not correlate such recent findings to the percussion grenade explosion almost 70 years ago. Moreover, no permanent residual or chronic disability was shown by the service medical records or demonstrated by evidence from the period immediately following separation from the service. Therefore, a nexus for service connection for a lower back disorder could not be made.

The Board affords great probative weight to the December 2021 VA examiner's opinion as he considered all of the pertinent evidence of record, to include the Veteran's relevant medical history and contentions, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The medical opinion is also consistent with other objective evidence of record.  The persuasive evidence of record does not show that Veteran's back disorder is related to service, including any percussion grenade explosion or other work-related event.

The Board has also considered the appellate assertions that the Veteran's back disorder was related to his military service; however, lay persons do not possess the requisite training and experience necessary to address such complex medical matters. Specifically, such inquiries involve medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's and the appellant's opinions as to the cause of the Veteran's back disorder is not competent evidence and, consequently, is afforded no probative weight.

Based on the foregoing, service connection is not warranted for a back disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal, and the service connection for a back disorder claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.   

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brennae L. Brooks, 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.