Citation Nr: 22018241 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-30 554 DATE: March 28, 2022 ORDER Service connection for a thoracolumbar spine disability is denied. FINDING OF FACT The Veteran's lumbar spine degenerative disc disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for thoracolumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from February 1974 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision. It was previously denied by the Board in a June 2019 decision. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Partial Remand (JMPR), the Court remanded the matter back to the Board for additional development. It was then remanded by the Board in May 2021 and December 2021. Thoracolumbar spine disability The Veteran contends that he incurred a current thoracolumbar disability during his period of active service. Certain chronic diseases 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). The Veteran has a current diagnosis of degenerative disc disease as evidenced by a November 2011 VA examination. Degenerative disc disease, as a form of arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Post-service treatment records show the Veteran was not diagnosed with any degenerative changes until 2005, years after his separation from service and years outside of the applicable presumptive period. The Veteran has also not specifically asserted that he has experienced continuous lumbar spine symptoms since service. The Board has considered whether the evidence indicates any such continuity. However, while the Veteran was treated for a low back condition in June 1990, his November 1993 separation examination was normal, and he denied any recurrent back pain on the accompanying medical history report. When he sought treatment in August 2005, he reported the acute onset of low back pain only 48 hours earlier. During the November 2011 VA examination, he indicated he has been treated several times for his low back after service, but could not recall the dates. Therefore, the evidence is persuasively against a finding of continuous low back symptoms since service. Service connection may still be granted on a direct basis; however, the evidence of record persuasively weighs against finding that a medical nexus exists between the Veteran's degenerative disc disease and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The November 2011 VA examiner opined that the Veteran's degenerative disc disease is not at least as likely as not related to an in-service injury, event, or disease, including muscle strains from February 1977 and June 1990. The rationale was that the injuries in service related to the soft tissue (muscle and ligaments) of the spinal region, whereas his current condition involved the discs and vertebral bodies. The examiner stated that one is not the cause of, or related to, the other. There is no competent medical evidence to refute this conclusion or otherwise link the Veteran's lumbar spine disability to service. While the Veteran believes his disability is related to an in-service injury, event, or disease, he has not shown the necessary medical knowledge or expertise to provide a competent medical opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no link to be present. As a final matter, the January 2021 JMPR instructed the Board to obtain post-service physical therapy records from Keesler Air Force Base. Those records were obtained and reviewed as part of this decision. Carter v. Shinseki, 26 Vet. App. 534, 541 (2014) (a joint motion for remand identifies clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand); vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (2015). The Veteran was also afforded a VA examination to address his contentions. No additional development of the claim is warranted, and VA's duty to assist has been satisfied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.