Citation Nr: 22016179 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-54 306 DATE: March 21, 2022 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's lumbar spine disability began during active service, within one year of separation from active service, or is otherwise related to an in-service injury or disease, to include as secondary to service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1980 to April 1992 and from March 2003 to March 2004. The Veteran had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal in December 2018, January 2020, July 2021, and December 2021. Entitlement to service connection for a lumbar spine disability is denied. The Veteran asserts that his lumbar spine disability is caused by the cumulative physical impact of routinely carrying heavy combat loads exceeding 70 or more pounds, as well as from arduous field and training exercises during many years of active service. See October 2015 correspondence, February 2016 notice of disagreement, and April 2019 correspondence. The Veteran also reported that the repeated bending, lifting, and moving of heavy objects, as well as sleeping on a concrete floor during tactical deployments in Iraq, contributed to his present disability. See February 2016 notice of disagreement. Although the Veteran indicated that he had lower back soreness in service and continued to experience soreness after active service, he also indicated that he did not seek treatment in service due to the impact it would have on his reputation as an infantry officer. See February 2016 notice of disagreement and April 2019 correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service treatment records are silent for any complaints, diagnosis, or treatment related to a lumbar spine disability. Of note, the October 1979, April 1982, May 1988, and April 1992 medication examinations noted normal spine, other musculoskeletal. During Reserve service, the examination showed normal spine, other musculoskeletal in April 1998 and March 1999. After service, the Veteran was evaluated for other disabilities in VA treatment records. These disabilities included bilateral hearing loss, mental health concerns, and nutritional assessments. However, the Veteran was not seen for lower back pain until December 2014. At that initial visit, the Veteran reported lower back for the past two months which comes and goes, and no specific injury was noted. The clinician gave an assessment of focal lower back pain with suspicions of SI joint dysfunction. After imaging in December 2014, the Veteran was diagnosed with mild facet arthrosis, lumbosacral junction. See April 2015 VA treatment records. The Veteran was afforded a VA examination for back conditions in May 2019. The examiner noted a diagnosis of degenerative arthritis of the lumbar spine and a date of diagnosis from December 2014. The Veteran reported in-service duties include walking great distances and carrying heavy weight. He reported feeling soreness on and off. He also reported that his frame took a beating in service without medical care. The Veteran indicated that back pain was not prominent in his mind until he aged. The examiner provided a negative opinion as to whether the Veteran's lumbar spine disability was related to service. In support, the examiner noted there was no treatment until 2014 and the Veteran was diagnosed with mild degenerative joint disease at an age when over 50 percent of men had the condition. Moreover, degenerative arthritis of the lumbar spine is due to the natural aging process. Ultimately, the examiner concluded that there was no evidence of any back condition prior to 2014. In January 2020, the Board found the examination report and opinion inadequate due to the examiner's reliance on the absence of treatment in service and insufficient documentation and discussion of the Veteran's medical history. Notably, the Board indicated that there was no discussion on how the cumulative impact of the Veteran's almost 15 year active duty career, to include active service in combat areas. Subsequently, the Veteran was afforded another examination in February 2020 for back conditions. The Veteran reported that he started experiencing lower back pain, soreness, stiffness from carrying 50 to100 pounds of combat gears over rough terrain while stationed in Quantico, VA. The Veteran reporting going to his primary care manager, having imaging done, and being treated with pain medications. The VA examiner opined that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by an in-service injury, event, or illness. There were no complaint, symptoms, diagnosis, imaging, or treatment for low back pain while he was in service. The Veteran's back was noted as normal on medical clinical evaluations dated October 1979, April 1982, April 1988, April 1992, and March 1999. The Veteran was first noted to have back pain in the 2014 records, which was 10 years after he separated from service. Given the significant amount of time from active service to the onset of symptoms without evidence of previous complaints in service, the examiner could not correlate chronicity with service. The examiner also noted that the lumbar spine disability was less likely than not due to or incurred by the service-connected bilateral foot, and/or bilateral heel disabilities. The examiner explained that arthrosis is a degenerative process of the spine, and no true baseline is noted in the records. Thus, it was not possible to discern if the arthrosis was aggravated without mere speculation. Also, the lumbar spine disability was not noted between the dates of active duty service; therefore, it was unlikely to have pre-existed the periods of active service. In July 2021, the Board indicated that the February 2020 VA medical opinion is inadequate because the VA examiner did not fully consider the Veteran's lay statements. In addition, the Board noted that the VA examiner did not provide a sufficient rationale for the opinion as to secondary service connection. In August 2021, the Veteran again underwent a VA examination. The examiner opined that the Veteran's lumbar spine disability was not likely related to service. The examiner reasoned that there is no indication that the Veteran's military duties would likely cause chronic lower back pain. Without objective evidence, the Veteran's contentions that rucking and deployments would cause chronic lower back pain would be pure speculation. The examiner also provided a negative opinion as to secondary service connection. The examiner indicated that the Veteran's lumbar spine disability is not proximately caused by his foot disabilities. The examiner noted that there is no plausible pathophysiologic mechanism that would explain such a causal relationship between these conditions. Further, there is no evidence documenting a relationship between the foot disabilities directly or indirectly with his lumbar spine disabilities. The VA examiner also indicated that the lumbar spine disability was not aggravated beyond its natural progression by any service-connected conditions because there was no evidence documenting aggravation by his military duties. Lastly, the August 2021 VA examiner indicated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner reasoned that there was no evidence in service treatment records documenting chronic or frequently recurrent lumbar condition. The December 2021 Board remand noted that the VA opinions were not adequate. Again, the Board noted that the VA examiner failed to consider the Veteran's contentions in the direct service connection opinion. As to the secondary service connection opinion, the Board indicated that the VA examiner's rationale was insufficient because no substantive rationale was provided beyond a generic reference to unidentified medical literature. Most recently, VA obtained an addendum opinion in January 2022. The examiner provided negative opinions as to whether the Veteran's lumbar spine disability was related to service, or proximately caused or aggravated by a service-connected disabilities. The examiner indicated that there is no evidence that the condition had onset in service or predated any active period of service. Rather, the clinical evaluations of the spine in service were negative. Given the rigors of military service, the examiner indicated that it was medically implausible that an individual could perform the rigorous duties of military service with a chronic low back condition. Further, the Veteran is diagnosed with an age-related condition, which is caused by normal wear and tear over a lifetime. At the time of the Veteran's diagnosis, it was age-appropriate. Finally, only minimal degenerative joint disease was diagnosed in the December 2014 X-rays. Minimal degenerative joint disease represents the first evidence of degenerative spine disease or other chronic low back condition. Given the minimal findings 10 years after service and the known disease progression, the lumbar spine disability was unlikely related to service. As to secondary service connection, the examiner opined that the Veteran's lumbar spine disability was not caused or aggravated by the Veteran's foot conditions, including bilateral plantar fasciitis and bilateral hallux valgus. The examiner explained that a condition of one joint or joint system, such as the bilateral foot conditions, does not cause a condition of the lumbar spine. While there are rare exceptions, these normally involve specific physical findings such as leg length discrepancy and exaggerated gait. Neither are shown in this case. The Veteran's specific diagnosis of degenerative disease of the spine with known age related etiology also weighs against an etiological link between the bilateral foot disabilities and service. Moreover, the bilateral nature of the Veteran's foot conditions mean that any stress from gait or postural accommodation would have been equally distributed and would not have predisposed the Veteran to develop a naturally occurring degenerative process. As to aggravation, the examiner indicated that a deviation in the natural progression of the Veteran's lumbar spine disability would be shown by more invasive treatments. This was not indicated in this case. Thus, the examiner concluded that there was no aggravation by service-connected disabilities. Upon review, the Board finds that service connection is not warranted. The Board finds the January 2022 VA opinion highly persuasive. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a thorough, exhaustive, and cogent rationale for the opinion, which included consideration of the Veteran's reported symptoms and clinical history. The VA examiner noted that the Veteran's contentions of collective impact from the physical rigors of service and other circumstances of service, was not consistent with how the currently diagnosed lumbar spine disability is known to develop and the normal clinical evaluations in service. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim. Although the Veteran is competent to report having experienced symptoms of back pain, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed lumbar spine disability. The issue is medically complex, as it requires knowledge of the musculoskeletal system and knowledge of an entirely internal disease pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the Veteran is not shown any medical training, he is not competent to opine on the matter. Moreover, the Veteran's statements regarding the nature, course, and onset of his lumbar spine disability are not persuasive. Notably, the Veteran initially reported that his back pain had onset in 2014, a decade after service, in contemporaneous VA treatment records. Conversely, in advancing this appeal, the Veteran indicated that his symptoms had onset in service and continued thereafter. To the extent the Veteran appeared to indicate that he received treatment for a back condition while in service, the service treatment records are silent for such treatment or complaints. Moreover, the Veteran vehemently denied receiving any treatment during service because seeking any type of medical treatment would negatively impact his reputation as an infantry officer. See February 2016 notice of disagreement and April 2019 correspondence. However, this explanation as to the absence of complaints in service treatment records is also unpersuasive because the Veteran sought treatment for numerous conditions in service, to include sinus and foot conditions. Given the internal inconsistencies and their incompatibility with the contemporaneous objective evidence, the lay statements are not persuasive. In addition, the Veteran raised other evidence as to the etiology of the lumbar spine disability in this case. Notably, the Veteran appears to indicate that there is some probative value to be drawn from multiple doctors have treated his disabilities, but who have not disabused him of the belief that these injuries are service connected. See April 2019 correspondence. However, the evidence does not include an opinion from any of these clinicians supporting an etiological link to service. Moreover, the failure to correct a view is not the same as etiologically linking a current disability to service. The Veteran has also cited to general studies showing a higher prevalence of osteoarthritis among veterans than a non-veteran control group. The Board notes that a medical article or treatise can be probative evidence when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). Notably, the statistic cited by the Veteran does not pertain specifically to the Veteran's circumstances and clinical history. Consequently, the Board gives more probative weight to the January 2022 VA examiner's opinion. Finally, the Board finds service connection may not be presumed under the provisions of 38 C.F.R. §§ 3.307, 3.309. The evidence shows that the Veteran was first diagnosed with arthritis a decade after service. Service treatment records are silent a lumbar spine condition. Although the Veteran indicated that he has symptoms of back pain in service, he is not competent to diagnose these symptoms as manifestations of his currently diagnosed disability. As such, there is no showing that arthritis of the lumbar spine manifested to a compensable degree within a year from separation from service. Thus, the presumption does not apply. In sum, the evidence persuasively weighs against a nexus between the Veteran's lumbar spine disability and service, to include having onset within a year of separation or as proximately caused or aggravated by a service-connected disability. Thus, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.