Citation Nr: 22016285 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-05 902 DATE: March 21, 2022 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran's lumbar spine disability manifested during active service, within one year of separation, or is otherwise etiologically related to an in-service injury or event. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not 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 August 1979 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned in August 2019. A transcript is of record. In a November 2019 decision, the Board denied entitlement to service connection for a lumbar spine disability. The Veteran appealed the Board's decision to the United States Court of Appears for Veterans Claims (Court). In October 2020, the Court issued an Order that vacated the Board's November 2019 decision and remanded the matter for readjudication consistent with the instructions outlined by the parties in a Joint Motion for Remand (JMR). The Board remanded the service connection claim for a lumbar spine disability in March 2021 consistent with the JMR. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a lumbar spine disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, 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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (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). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic disabilities, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service treatment records show that the Veteran complained of low back pain along with dizziness, headaches, runny nose, and general malaise. The Veteran had full range of motion of his back with minimal aching pain to palpation in the lower lumbar area. He was assessed with viral syndrome. Service treatment records show that the Veteran was treated for numerous issues, such as bug bites, earaches, trauma to the right hand, head trauma, stress fractures in his heels, and a wart on his right toe. His August 1979 enlistment examination, July 1983 re-enlistment examination, and September 1985 separation examination did not show complaints or diagnosis of a back condition. In a May 2014 VA examination, the Veteran was diagnosed with degenerative disc disease based on a December 2013 MRI. The Veteran reported that he had injured his low back lifting a heavy pot while onboard a ship. He stated that he had been seen by medical after returning to shore but was told that "there was not much they could do." He claimed that he had had low back pain ever since. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability was due to his active duty service. Review of service medical records did not show any evidence of a chronic low back problem in service. While there was a complaint of low back pain in the setting of upper respiratory symptoms, there was no evidence of any complaint for a lumbar spine condition in service. There was no objective evidence of a chronic debilitating low back condition that began in active duty and continuing. The first complaint of low back pain occurred many years after service. In an August 2014 notice of disagreement, the Veteran stated that he injured his lower and thoracic back while performing duties on board the USS Sample. In a February 2015 VA treatment record, the VA physician assessed the Veteran with back pain with radiation at times to the legs and noted that the Veteran reported injuring his back during service. Specifically, he reported that he fell and cracked his back during service and, as a cook, lifted heavy meat all the time, reinjuring his back. The physician opined that the pain was more likely than not related to his service due to his injury and reaggravation of pain from the job. In a February 2016 VA Form 9, the Veteran contended that the evidence was at least in equipoise that his back condition was caused by service as his primary care doctor provided a positive nexus opinion. At the August 2019 hearing, the Veteran reported that he did not have back problems or issues before service. He was a cook during service. He stated that he had injured his back during service after about one year on the ship. He was carrying boxes from the freezer and the ship rolled causing him to fall and hit his back on the edge of a case of meat. It took him a while before he could get up. He claimed that he went to sick call, but was just given Aspirin and told to get back to work. The Veteran reported that when he re-enlisted, he had back pain constantly. He first sought treatment for his back about 20 years ago after he slid down the stairs and landed on his back. He asserted that his doctor told him that he had reinjured his back. The Veteran contended that he had constantly reinjured and aggravated his back, so it was never given the chance to heal correctly. In a September 2019 note, a VA physician noted that the Veteran had been seen on July 31, 2019 for complaints of worsening chronic low back pain. Severe degenerative disease was identified at L5-S1. After review of medical records (long history of chronic back pain with degenerative disc disease), the physician determined that the Veteran was not a likely candidate to be rehabilitated for this condition. He opined that it was more likely than not that the physical traumas suffered during service and noted in record caused, contributed to, and aggravated the totally disabling back condition. In an October 2020 brief, the Veteran's representative contended that the May 2014 VA examination was inadequate because it failed to account for the Veteran's competent and credible lay statements. In April 2021 VA supplemental opinions, the VA examiner, a nurse practitioner, opined that it was less likely than not that the Veteran's lumbar spine disability, degenerative disc disease, was due to his active duty service. The examiner found that the Veteran only had acute low back pain during service with no evidence of chronicity of care. While a December 1979 record noted low back pain and an assessment of early viral syndrome, service treatment records did not note a diagnosis for a lumbar condition, to include the September 1985 separation examination. While the Veteran was competent to provide a history of symptoms, he was not capable of diagnosing a medical condition related to those symptoms. The examiner found that medical records showed a December 2013 spine x-ray that noted an impression of multilevel degenerative findings with disc extrusion at the lumbar spine and a July 2018 x-ray that noted impression of severe lumbar degenerative disc disease. The examiner stated that degenerative disc disease or arthritis was an age-related condition that occurred when one or more of the discs between the vertebrae of the spinal column deteriorated or broke down, leading to pain. It was a progressive condition that could happen over time from wear and tear or injury. Degenerative disc disease could begin developing in a person's 30's or 40's and then progressively worsen. In a November 2021 VA supplemental opinion, the VA examiner, a physician, noted review of the claims file, to include specifically the February 2015 and September 2019 opinions, and the August 2019 hearing transcript. She opined that it was less likely than not that the Veteran's lumbar spine disability was due to his military service. She that the Veteran had been diagnosed with lumbar spine degenerative arthritis/disc disease in December 2013 by MRI, over 25 years after separation from service and over 30 years since the reported 1981 back injury. The examiner noted that service treatment records did not show complaints, issues, diagnoses, or treatment for low back conditions, but did show multiple clinic visits for various conditions with none for the low back with the exception of low back pain symptoms associated with a diagnosed viral syndrome in December 1979. The Veteran had a normal spine examination in the July 1983 re-enlistment examination and September 1985 separation examination. The examiner noted that the Veteran reported injuring his back in 1981 while on a ship when a box fell on him causing him to his back on a case of meat. The examiner found that any low back pain the Veteran experienced was temporary and resolved without residuals as service treatment records documented no low back defects or diagnoses. Further, the Veteran was able to successfully fulfill his duties for remainder of his first tour and his second tour. The examiner found there was no immediate post-service objective medical evidence that indicated treatment for acute or chronic low back conditions or pathology. She noted that the Veteran's initial April 2012 claim did not include a claim for the low back and that the Veteran began VA care in 2012 after losing his private health insurance. The Veteran testified at the 2019 hearing that he continued to experience low back pain ever since the 1981 incident, but he also reported that he first sought care for his low back approximately 20 years ago (1999) after injuring his back in a fall and slide down the stairs. The examiner found that the provided records suggested that the Veteran experienced a low back muscular strain during service which healed without complication or sequelae. A muscular strain would not involve articular structures and would not progress to arthritis or degenerative disc disease. The examiner did not find supporting objective evidence of continuity of a low back condition. There was no immediate post-service objective medical evidence that indicated treatment for an acute or chronic low back condition or pathology. Additionally, there was evidence of several post-service injuries which were unrelated to the in-service injury were found in the record, to include the 1999 fall per the Veteran's testimony, a January 2013 VA treatment note referring to a recent back injury, and a February 2014 VA emergency room visit documenting a "fall on buttocks." Further, the examiner stated that osteoarthritis was often referred to as "wear and tear" disease that occurred with aging. Particularly after the age of 40, most people experienced some disc degeneration. She noted that the Veteran had the following risk factors for osteoarthritis and disc disease: increasing age, overweight/obesity, joint injuries (in-service injury and post-service injuries), diabetes mellitus, and smoking. According to post-service VA treatment records, since January 2013 the Veteran reported low back pain and was advised to lose weight. According to a June 2013 x-ray study, which noted an acute exacerbation of chronic back injury, the Veteran had a normal lumbosacral spine. In December 2013, the Veteran reported that he had originally injured his back in 1981 and had had pain ever since. According to December 2013 MRI and x-rays, the Veteran had lumbar spine degenerative disc disease. In January 2014, it was noted that the Veteran had a recent low back injury, specifically a fall with acute pain in the tailbone region and brief loss of consciousness. In February 2015, the Veteran reported that during service he was lifting heavy boxes while bending over and fell when the boat shifted. He struck his right side very hard on the edge of boxes. He stated that he had been told that he injured his disc and could have surgery, but did not opt for surgery. Based on a careful review of the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding service connection for a lumbar spine disability is warranted. As an initial matter, the evidence shows that the Veteran had a current diagnosis of lumbar spine degenerative disc disease. However, there still must be a showing of a nexus to service. The evidence does not show any evidence that the Veteran's lumbar spine degenerative disc disease manifested within one year of separation from service. Rather, the Veteran was diagnosed with degenerative disc disease of the lumbar spine in December 2013. Therefore, the Board finds that the Veteran is not entitled to service connection on a presumptive basis under either 38 C.F.R. § 3.307 (a)(3) or under 38 C.F.R. § 3.303 (b) for continuity of symptomatology. Service treatment records do not show complaints of, treatment for, and a diagnosis of a lumbar spine disability. While a December 1979 record shows that the Veteran reported low back pain, this was in conjunction with other symptoms, such as dizziness, headaches, runny nose, and general malaise, and he was ultimately diagnosed with viral syndrome instead of a lumbar spine disability. The Board acknowledges that the Veteran reported injuring his back during service (approximately in 1981), going to sick call, and having low back pain since service. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511 12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Board notes that while service treatment records show that the Veteran was treated for numerous issues, such as bug bites, earaches, right hand trauma, head trauma, stress fractures in his heels, and a wart, they do not show that he complained of or sought treatment for a low back condition. Further, the July 1983 re-enlistment examination and September 1985 separation examination did not show complaints or diagnosis of a back condition. Additionally, the Veteran himself reported at the August 2019 hearing that while he had back pain since service, he had injured his back in 1999 after sliding down the stairs, at which time he sought treatment for his back. In light of the evidence, the Board finds that the Veteran's statements as to his in-service low back injury are inconsistent with the evidence of record contemporaneous to service, lack credibility, and therefore, are entitled to no probative weight. Id. The Board has considered the February 2015 and September 2019 positive nexus opinions. In a February 2015 VA treatment record, the VA physician noted the Veteran's reported in-service back injury and opined that his back pain was more likely than not related to his service due to his injury and reaggravation of pain from the job. In a September 2019 note, the VA physician opined that it was more likely than not that the physical traumas the Veteran suffered during service and noted in record caused, contributed to, and aggravated the totally disabling back condition. However, the Board finds these opinions to be conclusory as their medical conclusions appear to be based exclusively upon a history provided by the Veteran, namely, that he was injured during service from a fall, rather than upon a review of the Veteran's military or medical history. Transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). As such, the Board assigns the medical opinions little probative weight particularly in light of its finding that the evidence weighs against finding that the Veteran injured his back during service. In contrast, the Board finds that the November 2021 VA opinion is persuasive as to the etiology of the Veteran's lumbar spine disability. The examiner based her opinion on a thorough review of the Veteran's medical records, to include the February 2015 and September 2019 opinions, consideration of the Veteran's lay statements at the hearing and throughout his treatment records, and medical research. Significantly, the VA examiner provided an opinion that was supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). While the Board has found that the evidence does not show that the Veteran injured his back during service, it notes that the November 2021 VA examiner considered the Veteran's statements as to his in-service back injury and, assuming that it occurred, still found that such reported injury would not result in his lumbar spine degenerative disc disease. The Board finds that the persuasive evidence of record shows that the Veteran's lumbar spine disability did not have its onset during service, or was otherwise etiologically related to service. The Board acknowledges that the Veteran is competent to report his history of lumbar spine symptoms. However, he has not demonstrated that he has the requisite specialized knowledge and training to provide a medically complex opinion. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide an etiological opinion for his lumbar spine disability, and thus offers little probative value. The Veteran has not presented any competent and credible evidence that his lumbar spine disability is etiologically related to his active duty service. Accordingly, the Veteran's service connection claim for lumbar spine disability is not warranted. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a lumbar spine disability is warranted. Rather, the evidence persuasively weighs against finding in favor of the Veteran's service connection claim for a lumbar spine disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.