Citation Nr: 22014643 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-51 562 DATE: March 14, 2022 ORDER Entitlement to service connection for a back disability, diagnosed as thoracolumbar strain, degenerative joint disease, degenerative disc disease, anterolisthesis, and spondylolysis, is denied. FINDING OF FACT The Veteran does not have a back disability that is causally or etiologically related to any disease, injury, or incident in service; and lumbar spine degenerative arthritis did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 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 Army from April 1970 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Most recently, in August 2021, the Board remanded this matter for additional development. Service Connection Direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Direct service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. VA's Office of General Counsel distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel drew on medical authorities and case law from other federal jurisdictions and concluded that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at para. 2. Importantly, congenital, or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Rather, a defect of congenital, familial, or hereditary origin, by its very nature, pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). Nonetheless, where, during service, a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted if there is evidence of additional disability due to aggravation during service of the congenital defect by the superimposed disease or injury. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). Thus, if such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Entitlement to service connection for a back disability, diagnosed as thoracolumbar strain, degenerative joint disease, degenerative disc disease, anterolisthesis, and spondylolysis, is denied. The Veteran asserts that he has a back disability related to service. Service treatment records (STRs) reflect an April 1970 Medical Board Examination noting the Veteran had congenital spondylolysis. He was subsequently discharged from the active service. In April 2013, the Veteran was afforded a VA examination and the VA examiner provided a negative nexus opinion. The VA examiner found that the Veteran's spondylolysis was a congenital defect that predated his active service, but did not address whether there was a superimposed disability that was related to the Veteran's active service. In April 2015, the Veteran submitted a favorable medical opinion from Dr. C. S. Unfortunately, the opinion does not have any rationale. In his October 2016 VA Form 9, the Veteran wrote that he did not have a back problem prior to his entry into the active service and that he heard a "pop" in his lower back while he was in basic training. The Veteran is competent to report this event and his subsequent back pain. In January 2020, the Veteran underwent VA lumbar spine examination. The examiner noted a current diagnosis of spondylolysis L5-S1 and spina bifida occulta S1, with degenerative disc disease and anterolisthesis L5. The Veteran reported that in 1970 during basic training he started getting sharp pain in his lower back. Following interview and examination of the Veteran as well as review of the claims file, the examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated, It is my medical opinion that there is no other lumbar diagnosis which incurred during the active service time [and] that the [degenerative disc disease] is less likely than not due to the active service time. Medical records have been reviewed and the following was found: dates service army [April 3, 1970 to May 12, 1970]. Remand letter dated [January 16, 2020] has been read and reviewed. Enlistment [examination] on [April 2, 1970] he denied back trouble. [Medical] board proceedings on [May 5, 1970] lists the following medical conditions: spondylolysis l5-s1, symptomatic. [He] was seen in [orthopedic] clinic on [April 15, 1970] gave a history of pain and discomfort in his back [for one year] and that at home he had a...brace used for his back. [He was] seen at dispensary and x-ray revealed a congenital defect. X-ray shows spondylolysis l5-s1 and spina bifida occulta s1. [Lumbar] flexion was to 50 degrees. [He was] declared medically unfit for duty. The examiner continued to state, "there was no documented fall or injury during his time in service to account for any superimposed disability and he admits to having chronic back pain for [one year] prior to service entry, so at his baseline he has chronic back pain." The examiner also stated, "there was no evidence of [degenerative disc disease] on x-ray in 1970 to attribute it to service." Pursuant to the August 2021 Board remand, a VA opinion was obtained in November 2021. The examiner was asked to opine whether the Veteran's spondylolysis is a developmental defect or a developmental disease. The November 2021 VA examiner opined the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated, Spondylolysis is a stress fracture through the pars interarticularis of the lumbar vertebrae. The pars interarticularis is a thin bone segment joining two vertebrae. It is the most likely area to be affected by repetitive stress. It is not a congenital or developmental condition. The objective medical evidence, along with the January 2020 and November 2021 VA opinions, demonstrate that the Veteran does not have a back disability caused or aggravated by his period of service. The January 2020 VA examiner determined that no lumbar disabilities were incurred in service and the November 2021 VA examiner indicated that the Veteran's diagnosed spondylosis was not a congenital disease or defect. The Board acknowledges the Veteran's representative's contention that the November 2021 VA examiner is not shown to have any particular expertise, experience, training, or competence in commenting on orthopedic disorders. Rather, the examiner's specialty, if any, was not identified. Absence of competence renders his conclusions no more probative than the [Veteran's] lay assertions that there is nexus between the claimed back disorder and active military service. January 2022 Appellate Brief. (Continued on the next page) However, the Board finds the January 2020 and November 2021 VA opinions probative and persuasive as each examiner reviewed the Veteran's medical records, considered the Veteran's statements, and rendered opinions based on medical research and expertise. There is no competent medical evidence to the contrary. Although the Veteran asserts that his back conditions are related to in-service activities, as a lay person he is not shown to have the medical expertise necessary to make such an opinion. Further, lumbar spine degenerative arthritis may not be presumed related to service as there is no evidence demonstrating that arthritis was diagnosed within a year of separation from service. Overall, the weight of the competent evidence shows that a back disability is not caused or aggravated by the Veteran's period of service. As there is no reasonable doubt to be resolved, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.