Citation Nr: 22029263 Decision Date: 05/18/22 Archive Date: 05/18/22 DOCKET NO. 18-18 945 DATE: May 18, 2022 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The Veteran's lumbar spine disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1966 to July 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decisions of a VA RO. In July 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In October 2021, the Board remanded this issue for additional development. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air 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 progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Factual Background and Analysis At his July 2021 hearing, the Veteran testified that he injured his back in service which resulted in his current lumbar spine disability. The Veteran's service treatment records reflect that his July 1966 enlistment examination was negative for treatments or complaints related to a low back disability. A May 1967 treatment report noted that the Veteran had a low back pain for the past month after straining his back while working in the motor pool. The diagnosis was a probable low back strain. The Veteran's July 1968 separation examination was negative for treatments or complaints related to a low back disability. A June 1989 private treatment record noted that the Veteran reported that he had back pain which had been ongoing since he injured his back playing tennis several months before. July 1989 x-rays demonstrated mild asymmetrical bulging of the L4-L5 disc as well as some degenerative joint disease. A January 1990 private treatment report noted lumbar disc disease and a long history of low back pain. A May 1999 private treatment report indicated that the Veteran had chronic low back pain for the past 10 years. The Veteran underwent a VA examination in February 2013. The examiner noted that the Veteran had degenerative disc disease of the lumbar spine which was diagnosed in 1989. The Veteran reported that he had sprained his back prior to his service and then he had another injury in service where he received treatment for a back sprain. It was noted that this resolved without residuals. Since his service he reported intermittent back injuries. After his service was a machinist for 40 years which was a rather physical occupation. The examiner noted that it was noted until the 1980's when this condition became chronic and he was found to have degenerative disc disease. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran had an in-service back sprain which resolved without residuals. Back sprains did not last 40 years and his current back disability was well documented to be degenerative disc disease with arthritis which started in the late 1980's. The examiner found that the cause of the Veteran's low back disability was aging and his post service occupation. In a November 2016 correspondence, a private physician noted that a review of the Veteran's records demonstrates that he had some problems with his back in service. The physician indicated that the Veteran's in service injury "could be the originator of his back symptoms". When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a lumbar spine disability is not warranted. As there is a current diagnosis of degenerative disc disease of the lumbar spine, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, the Board notes that on VA examination in February 2013, the Veteran reported that he had a back pain prior to service and then injured his back again in service. However, the Veteran's July 1966 enlistment examination was negative for treatments or complaints related to a low back disability and the Veteran at his July 2021 hearing made no reference to a low back condition prior to his service. As such, the record does not clearly and unmistakably show that the Veteran had any chronic lumbar spine disability that preexisted his period of service. Therefore, the presumption of soundness is not rebutted and the claims become one for service connection on a direct basis rather than a claim based on in-service aggravation of a preexisting disability. See Wagner, supra. As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a lumbar spine disability on a presumptive basis is not warranted as the record does not show evidence of a lumbar spine disability within one year of the Veteran's separation from active duty. To the extent that the Veteran is asserting that he experienced continuing symptoms of a lumbar spine disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a lumbar spine disability until many years after service and there was a period between his service and his post-service complaints where the medical record was silent for complaints of a lumbar spine disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. As noted by the February 2013VA examiner, the Veteran's current chronic back condition began in the late 1980's. Regarding service connection on a direct basis, the Board again notes that the Veteran's service treatment records demonstrate that the Veteran injured his back in service as a May 1967 treatment report noted that the Veteran had a low back strain for the past month after straining his back while working in the motor pool. However, despite these complaints, the service treatment records were negative for any or diagnoses of any chronic lumbar spine disability and the record reflects that his lumbar spine complaints were medically addressed in service. Additionally, the Veteran's July 1968 separation examination was negative for treatments or complaints related to a low back disability. The Board notes that there are conflicting medical opinions of record addressing the possibility of a relationship between the Veteran's current lumbar spine disability and his service. As noted above, a private physician in a November 2016 correspondence opined that the Veteran's in service back injury "could be the originator of his back symptoms". Conversely, the February 2013 VA examiner opined that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by the claimed injury, event or illness. In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the February 2013 opinions of the VA examiner to be the most probative. Regarding the November 2016 opinion of the private physician, the opinion indicated the Veteran's in service back injury "could be the originator of his back symptoms". However, the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). In contrast, the February 2013 VA examiner provided detailed medical opinions supported by pertinent rationales based upon a review of the Veteran's claims file, when concluding that the Veteran's claimed lumbar spine disability was less likely incurred in or caused by the claimed in-service event, injury or illness. When composing his February 2013 opinions, the VA examiner had the benefit of a review of the Veteran's claims file and provided more detailed rationales than the November 2016 private physician. Additionally, the February 2013 VA examiner specifically considered the Veteran's service treatment records which documented his lumbar spine injury but noted that this resolved without residuals and that back sprains did not last 40 years. The examiner also opined that the Veteran's current back disability started in the late 1980's and that the cause of the Veteran's low back disability was aging and his post service occupation. For these reasons the Board finds the February 2013 VA examiner's opinions to be the most probative regarding the issues of whether the Veteran's current lumbar spine disability is related to his service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Given that the most probative opinions are against a finding of a relationship between a lumbar spine disability and service, the Board finds that service connection is not warranted. The Board notes the Veteran's contentions regarding the etiology of his claimed lumbar spine disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a lumbar spine disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding a lumbar spine disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the February 2013 VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). As the evidence is persuasively against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a lumbar spine disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.