Citation Nr: 22014172 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-47 789 DATE: March 11, 2022 ORDER Entitlement to service connection for a thoracolumbar spine disorder is denied. FINDING OF FACT The Veteran's thoracolumbar spine disorder is not due to and is not otherwise etiologically related to an in-service event, injury, or disease and arthritis did not manifest to a compensable degree within one year of service. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 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 from March 1987 to July 2008. The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was last remanded for additional development in October 2021. The previous remand ordered the RO to provide the Veteran with a new VA examination and to provide an addendum opinion. In November 2021, the RO provided the Veteran with new examination and obtained a new addendum opinion. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a thoracolumbar spine disorder is denied. The Veteran generally asserted that he has a thoracolumbar spine disorder either as due to service or continuously throughout and after service. Specific argument in support of this appeal has not been submitted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records show one instance of low back pain. In April 1990, the Veteran was treated for low back pain. A December 2007 medical assessment indicates that the Veteran suffered from minor sprains and strains to his hands, wrists and arms during active duty for which he did not seek medical care. Post-service clinical records reflect the Veteran reported experiencing pain in the thoracic spine and was found to have mild degenerative changes of the thoracic spine in January 2016. The Board also notes that the Veteran appeared for a general VA examination in April 2008, at which time, the Veteran was not found to experience any flare-ups of the spine, and there were no abnormalities found with regards to the spinal muscle. The Board has first considered whether service connection for a thoracolumbar spine disorder is warranted on a presumptive basis. However, the record shows that the Veteran's current thoracolumbar spine disorder did not have its onset during service or for several years thereafter. Arthritis was not diagnosed within one year of separation from service and the April 2008 VA examination found no abnormalities with regards to the spinal muscle. 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, a November 2021 VA examiner opined that the claimed thoracolumbar spine disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and less likely than not proximately due to or the result of military service. In support of this opinion, the examiner explained that while the Veteran was evaluated for an episode of back pain in April 1990, the Veteran then exhibited full range of motion at the time and was diagnosed with musculoskeletal lower back pain. However, the examiner explained this was likely an acute episode which resolved with no long-lasting sequelae. Furthermore, when the Veteran reported for a separation examination in December 2007, the Veteran did not complain of a back condition, and the examiner did not diagnose a back condition at the time. The examiner explained that there is no evidence to suggest the Veteran's claimed thoracolumbar spine disorder was caused by a single episode of documented back pain during service. The Board finds this opinion 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. The Board notes that an etiology opinion was obtained in January 2020; however, this VA opinion was found to be inadequate in its October 2021 remand. This opinion is therefore afforded little, if any, probative weight. The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of a thoracolumbar disorder is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). In the instant case, there is no suggestion that the Veteran has developed an expertise in the diagnosis of the spine. Therefore, as they do not have the appropriate medical training and expertise to competently diagnose a cyst on the neck, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). While the Veteran is competent to report experiencing symptoms of a thoracolumbar spine disorder such as pain, the Board must also consider whether his statements are also credible. In determining whether statements made by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). The Veteran's statements regarding the date of onset and continuity of his thoracolumbar spine disorder symptoms are inconsistent. During a January 2020 VA examination, the Veteran reported that he developed severe back pain causing him to fall and hit the ground in the 1990s and that he afterwards suffered from recurrent back pain that usually did not disrupt his work routine. However, an April 2008 VA general medicine examination found that there were no reported flare-ups of spinal disease and objective physical examination found that there were no abnormalities of spinal muscle or evidence of spinal ankylosis and range of motion was found to be grossly within normal limits. A February 2014 Tricare treatment note reflects the Veteran's reports of back pain for two months and that the onset of the pain occurred when he felt a sharp pain when bending over. A January 2016 Tricare treatment note reflected the Veteran's reports of right lateral mid-back pain for the past two months. In a December 2007 service health assessment, the Veteran indicated that he had experienced minor sprains and strains to his hands, wrists and arms and that he did not seek medical attention at the time because he was told nothing was wrong. In response to the question as to whether the Veteran had suffered from any injury or illness while on active duty for which he did not seek medical care, the Veteran did not report a thoracolumbar spine disorder or symptoms in that December 2007 service health assessment. The Board therefore finds that the Veteran's statements made to VA in connection with securing VA disability compensation are not credible and hence are of less probative than the medical evidence contemporaneous with service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996); White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (The Board may consider a lack of contemporaneous medical evidence, interest or bias, whether the statements were made in furtherance of treatment, and the lapse of time in recollecting events attested to as factors in determining the credibility of lay evidence.) (Continued on the next page) Accordingly, the Board finds that the evidence persuasively is against the claim of entitlement for service connection for a thoracolumbar spine disorder, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. 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.