Citation Nr: 22013971 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-23 188 DATE: March 11, 2022 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine (back disability) is denied. FINDING OF FACT The preponderance of the evidence shows that a back disability was not present in service or until many years thereafter and it is not caused by an injury while serving with a Reserve Component. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to October 1980. The Veteran also had service in the Kansas Army Nation Guard from October 1980 to December 2000, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that additional evidence March 2017 statement of the case. However, the Board finds that this evidence is not pertinent because it does not establish any fact that was not already found in the record. Therefore, the Board finds that it may adjudicate the below claim without Remanding this evidence for RO review or obtaining a waiver of such review from the appellant. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability which he asserts is related to a motor vehicle accident that occurred during his service in the Kansas Army National Guard. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). With the above criteria in mind, the record shows the Veteran being diagnosed with a current disability- degenerative arthritis of the lumbar spine. See, e.g., VA examination dated in March 2016. The Board also finds that the Veteran is competent to report on the events he experienced while in service as well as manifestations of his disorder such as pain. See Davidson, supra. Moreover, service treatment records during the Veteran's Army National Guard service show the Veteran complained of back and neck pain following a motor vehicle accident in June 1988 and was assessed as having a lumbar spine strain. A May 1989 report of medical history also reveals the Veteran reported recurrent back pain. However, the May 1989 examiner thereafter opined that the spine was normal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, all the subsequent service treatment records, including examinations dated in February 1993, May 1995, and January 2000, are thereafter negative for a chronic back disorder. Id. Tellingly, at the February 1993, May 1995, and January 2000 examinations the Veteran even denied having recurrent back pain or any back injury. It is important to note that at this key point, it was the Veteran himself that provides evidence against the claim. Likewise, on examination in February 1993, May 1995, and January 2000 it was opined that the Veteran's spine was normal and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Given this regard, the Board finds as the above service examiners must have found that any problems the Veteran may have had with his back following the documented motor vehicle accident in 1988 was transient in nature and resolved by the time he was examined in May 1989, February 1993, May 1995, and January 2000. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty or an injury while on inactive duty that caused his post-service back disability despite the motor vehicle accident and the back pain diagnosed as lumbar spine strain in 1988. See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a). In this regard, the Board finds that the highly detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems, weights against his current claim that he had problems with observable symptoms of a back disability since the 1988 motor vehicle accident over 35 years ago. See Owens, supra. Again, it is important for the Veteran to understand that at some points in this record it was the Veteran that provided evidence against the claim. As to service connection for the back disability based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show his being diagnosed with arthritis in the first year following his separation from a qualifying period of service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for a back disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for a back disability due to continuity of symptomatology under 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b). With the above standard in mind, the Board notes that the post-service record does not show that the Veteran had a continued problem with a back disability in and since his service ended. In fact, while service and/or Reserve Component treatment records document a motor vehicle accident and reports of back pain in 1988, at the subsequent February 1993, May 1995, and January 2000 examinations the Veteran denied having recurrent back pain or any back injury and at the May 1989, February 1993, May 1995, and January 2000 examinations it was opined that his spine was normal. See Colvin, supra. Likewise, and as important, the post-service is negative for any complaints, diagnoses, or treatment for a thoracolumbar spine disability until 2003 (see VA treatment records dated in December 2003); many years after his separation from his last period of qualifying service. Subsequent VA treatment records show the Veteran continued to complain of low back pain and was diagnosed with chronic low back pain. Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical evidence provides highly probative evidence, overall, against the claim which evidence the Board finds more probative than the Veteran's claims that he had observable symptoms of it since the 1988 motor vehicle accident over 35 years earlier despite the reports of back pain diagnosed as lumbar spine strain at that time. See Owens, supra. For the reasons noted above, the Board finds that the service and post-service medical records provide highly probative evidence against the claim. Id. The service and post-service records in this case provide particularly negative evidence against the claim (both are highly detailed; clearly indicating problems that began years after service). Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a back disability in and since his service. See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b). The Board also finds that the most probative evidence shows that the Veteran's post-service a back disability is not due to his military service. See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the March 2016 VA examiner opined that the back disability is not due to his military service. In this regard, the examiner opined that the Veteran's current lumbar spine disability was less likely than not incurred in or caused by service. The examiner explained that an x-ray taken in 2015 revealed degenerative disc disease and minimal spondylosis of the lower thoracic and lumbar spine. The examiner further explained that the Veteran's injury during service was described as minor and current arthritic changes are minimal; thus, the examiner concluded that the Veteran's current lumbar spine disability is due aging and normal wear and tear. The Board finds this opinion is the most probative evidence of record. The Board has reached this conclusion because the opinion was provided after a review of the record on appeal, an examination of the Veteran, it supported by citation to evidence found in the record and at the examination, it is supported by medical reasoning, and because it is not contradicted by any other medical evidence of record. See Owens, supra, Colvin, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The Board also finds that the Veteran is not competent to provide the missing nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., i.e., what caused his current back disability). See Davidson, supra. In this regard, the Board finds that he simply does not have the medical qualifications to provide a nexus opinion given the negative service treatment records and the many-year gap between service and the first diagnoses of the disorder post-service. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran's post-service back disability is not due to his military service despite the documented motor vehicle accident in 1988 with back pain diagnosed as lumbar spine strain (i.e., over 35 years ago). See 38 U.S.C. § 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.