Citation Nr: 23042002 Decision Date: 08/01/23 Archive Date: 08/01/23 DOCKET NO. 19-12 513 DATE: August 1, 2023 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that a low back disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2006 to December 2012. These matters come to the Board of Veterans' Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in September 2014, a statement of the case was issued in March 2019, and a substantive appeal was received in April 2019. In June 2022, the Veteran withdrew his request for a Board hearing. Service Connection The Veteran asserts that he has a low back disability due to active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The question for the Board is whether the Veteran has a current low back disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, and evidence shows that the Veteran complained of in-service back pain, the evidence of record persuasively weighs against finding that the Veteran's low back diagnosis began during service or is otherwise related to an in-service injury, event, or disease. Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). With specific regard to continuity of symptomatology, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, such as arthritis, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). A July 2009 Post-Deployment Health Assessment reflects that the Veteran checked the 'No' boxes with regard to 'back pain' pertaining to 'sick call,' 'profile,' and 'still bothered.' 02/05/2008 STR-Medical at 45. A November 2009 Post-Deployment Health Re-Assessment reflects that with regard to any deployment-related condition or concern he did not mark 'back pain.' Id. at 39. A March 2012 Periodic Health Assessment reflects with regard to musculoskeletal symptoms, he had no back pain. 04/12/2014 STR-Medical-Photocopy at 31. A July 2012 C&P examination (conducted prior to his separation from active service) reflects the Veteran's report of pain in his low back. The Veteran reported that in 2006 his lower back started hurting with heavy lifting and got worse over time. He denied any specific injury to the back. An x-ray examination of the lumbar spine was normal. The examiner noted a normal exam pertaining to the back, with no pathology. A September 2012 service treatment record reflects complaints of back pain. The assessment was back strain lumbar. 02/05/2008 STR-Medical at 59-62. In September 2014, the Veteran sought to establish VA care and reported low back pain. 12/20/2019 CAPRI at 220. A September 2014 x-ray of the lumbar spine reflects slight lumbar levoscoliosis and mild T11-12 degenerative disc disease. Id. at 5. A December 2016 x-ray of the lumbar spine reflects minimal T12-L1 spondylosis (new compared to the 2014 exam); stable mild degenerative disc disease at T11-12; and stable slight levoscoliosis of the lumbar spine. Id. at 3. A May 2017 MRI of the lumbar spine was negative. Id. at 2. In June 2018, the Veteran underwent a C&P examination wherein the examiner diagnosed degenerative arthritis of the spine. The Veteran reported that lower back pain began in 2010 while on active duty. He reported that he was placed on light duty for 1 week and he was able to go back to full duty. He reported intermittent back pain and usually felt it after a 2-mile run. He reported that 2 years prior he was told he had traces of arthritis and underwent physical therapy with temporary relief. He reported intermittent low back pain usually every other month lasting about one week. The examiner noted review of the claims folder and provided a summary of the service treatment records. Based on review of the medical record, medical literature and clinical experience, the examiner opined that degenerative thoracolumbar disc disease was not incurred in or caused by service. The Veteran was treated for intermittent acute lower back strain during active duty. There is no objective evidence of chronic condition during duty. His 2012 lumbar spine x-ray was negative. He was diagnosed with degenerative disc disease of the lumbar spine in 2014 and he reported "no trauma" to the lumbar spine during active duty. There is no objective evidence of trauma during active duty to cause degenerative disc disease of the thoracolumbar spine. His service treatment record is silent for trauma to the thoracolumbar spine. Trauma or injury to the thoracolumbar spine post active duty is unknown. As detailed above, while service treatment records do reflect a complaint related to the low back during active service, the records are negative for a chronic low back disability which manifested during active service. Degenerative arthritis has been diagnosed but did not manifest within a year of separation from active service. Based on the Veteran's in-service complaints and lay assertions, an opinion was sought on a direct basis which was negative. In formulating the negative etiological opinion, the June 2018 examiner considered the lay assertions of the Veteran and the medical evidence of record. The opinion of the June 2018 examiner is probative as it was 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). There is no contrary opinion of record. While the Veteran is competent to report his in-service experiences and symptoms, and post-service symptoms pertaining to his back, he is not competent to provide a diagnosis in this case nor determine that his post-service diagnosis is a manifestation of his in-service experiences. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the negative etiological opinion of record. REASONS FOR REMAND The Veteran has claimed service connection for a right ankle disability due to active service. Service connection is in effect for degenerative joint disease, left ankle (10% 03/25/2014). A May 2012 service treatment record reflects complaints of bilateral ankle pain and bilateral recurrent sprains. 02/05/2008 STR-Medical at 72. In July 2012, the Veteran underwent a C&P examination wherein he reported problems with pain in his ankles. He reported that his ankles roll when he walks sometimes, and he gets swelling when he runs. Objective findings pertaining to the right ankle were normal. An x-ray examination showed no fracture or dislocation. The ankle mortise was intact. Ossific density projection posterior to the talus may represent a small loose body. The examiner stated that the examination of the right ankle was normal, with no pathology. A September 2014 x-ray examination reflects an impression of no acute abnormality; chronic tiny ossicle adjacent to the medial malleolus, possibly related to remote trauma; and nonspecific mild calcification along the posterior margin of the talus. 12/20/2019 CAPRI at 7. In October 2014, the Veteran sought treatment for bilateral ankle pain, right worse than left. He reported that it interferes with walking and daily activities. The right is worse than the left and swelling occurs. The examiner noted that an x-ray shows early degenerative joint disease. Id. at 35-36. A February 2017 VA treatment record reflects complaints of right ankle pain. 02/14/2022 CAPRI at 79. A February 2017 x-ray examination reflects an impression of no acute abnormality; chronic tiny ossicle adjacent to the medial malleolus, may be related to remote trauma; and stable nonspecific mild calcification along the posterior margin of the talus. 12/20/2019 CAPRI at 3. The basis of the denial of service connection for a right ankle disability was no diagnosis. In light of the complaints and treatment reflected above, the Veteran should be afforded an examination to assess the etiology of his claimed right ankle disability. The matter is REMANDED for the following action: Schedule the Veteran for an examination with a clinician with appropriate expertise to assess the nature and etiology of his claimed right ankle disability. The examiner should review the claims folder in conjunction with the examination. Any appropriate testing should be conducted. The examiner should opine whether a right ankle disability approximately at least as likely as not manifested during active service or is it otherwise due to active service? All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.