Citation Nr: 22018942 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-10 911 DATE: March 30, 2022 ORDER Entitlement to service connection for degenerative arthritis of the spine with intervertebral disc syndrome (a low back disability) is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's low back disability began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. § 1112, 1116, 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 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that reopened, but denied, a previously denied claim for entitlement to service connection for a low back disability. The Veteran testified at a hearing with the undersigned Veterans Law Judge in November 2021. A transcript of the hearing is of record. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current low back disability. For example, degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) were diagnosed upon VA examination in 2015 and again in 2017. Further, the Veteran's service treatment records (STRs) show treatment in 1976 anda gain in 1977 for back strains. Thus, the remaining question is whether the current disability is related to the Veteran's service, including his in-service back strains. For the reasons that follow, the board finds that service connection is not warranted. Other than the Veteran's treatment for back strains, his STRs show no other complaints, diagnosis, or treatment related to a back disability. Notably, during the Veteran's 1979 separation examination, evaluation of the spine was normal. In a corresponding report of medical history, the Veteran specifically denied having had or ever had recurrent back pain arthritis, or any other symptom indicative of a back problem. If back pain was present at separation service, the Board would expect the Veteran would have responded "yes" when asked if he had recurrent back pain at separation. Post-service, the Veteran suffered a work-related back injury in May 1980, and was on workman's compensation for back pain until he was cleared by physicians to return to work. A diagnosed back disability is not shown by medical evidence until approximately the 1990s, when diagnostic testing showed degenerative changes in the Veteran's lumbar spine. As a chronic back disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied recurrent back pain. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran presented for a VA examination for his original service connection claim in December 2015 and, for the purposes of his subsequent claim to reopen, in April 2017. During each examination the Veteran was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiners each opined that it was less likely than not that the Veteran's current low back disability was related to his military service, to include his in-service back strains. In support of this conclusion, the examiners both explained that the Veteran's separation exam is negative for any back complaints indicating that his back pain treatment in service was acute and transitory with no residual chronic disability, including any radicular symptoms. Instead, the examiners both noted that the Veteran had a work-related injury in the early 1980's, which was severe enough for him to collect workman's compensation. It would be mere speculation to state with any degree of certainty, the 2015 examiner specifically stated, that this veteran's back condition is due to the back strain noted in the service, but then not again mentioned on his separation exam or injury after the military. The Board finds the above opinions highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. The opinions are also supported by other evidence of record. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. While the record reflects April 2015 and July 2018 statements from the Veteran's private physician, Dr. R.F., that the Veteran suffered a "spine injury" in service, there is no further discussion as to whether the Veteran's current low back disability is related to any in-service injury. Theis statement is therefore afforded no probative weight, as the Board has already acknowledged the Veteran's in-service back pain. The Board has considered the Veteran's statements, to include during his hearing before the undersigned, that that his low back disability is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a low back disability is warranted. Rather, the evidence persuasively weighs against such a finding. 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, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.