Citation Nr: 18124082
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-24 863
DATE:	August 3, 2018
ORDER
Entitlement to service connection for a lower back disability is denied.
FINDING OF FACT
1. Although the evidence documents lower back pain due to a motor vehicle accident prior to entering active service, confirmed by the Veteran’s lay statements, the objective evidence during service did not show a spinal condition. 
2. The preponderance of the evidence is against finding that the Veteran has a low back disability due to a disease or injury in service, to include a fall during active service. 
CONCLUSION OF LAW
The criteria for service connection for a low back disability are not met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306, 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 4, 1975 to March 26, 1975. 
1. Entitlement to service connection for a lower back disability
The Veteran contends that he has a lower back disability that is the result of a fall during active service. 
Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.   Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 
Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
The question for the Board is whether the Veteran has a current 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 lumbar degenerative disc disease (DDD), and evidence shows complaints of back pain during active service, the preponderance of the evidence weighs against finding that the Veteran’s lumbar DDD began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 
The Veteran’s service treatment records (STRs) document complaints of back pain during active service that the Veteran contended was the result of a fall during basic training.  The records show that the Veteran’s back was examined thoroughly.  The Veteran’s January 1975 entrance medical examination had no notations of a back problem.  The Veteran’s self-reported medical history in January 1975 did not report any existing back problems.  X-rays in February 1975 showed a normal spine.  At the same time period, the Veteran reported to the examiner that he had been in a motor vehicle accident about two years earlier that had caused him back pain.  The Veteran had full range of motion of the back documented in February 1975.  In March 1975, the Veteran’s medical records show that an examiner assessed a muscle spasm in the lower back.
On the Veteran’s June 2011 claim form, he stated that he had been “in traction” for his back during active service, but the medical evidence of record does not support that contention.   
Post-service, the Veteran’s medical records document another car accident in 2007.  The medical records contain consistent references to back pain resulting after that car accident.  Additionally, the Veteran stated that he left his job as a limousine driver after that accident because he had such bad pain, e.g. October 2009 treatment note.
An October 2012 VA examiner opined that the Veteran’s lumber DDD is not at least as likely as not related to an in-service injury, event, or disease, including the documented lower back pain complaints in service.  The rationale was that the lower back pain during service was diagnosed as a muscle spasm and the contemporaneous evidence showed normal spinal X-ray and no objective evidence of a spinal condition.  The examiner also noted that the Veteran was involved in a motor vehicle accident prior to entering active service, but reiterated that the medical evidence during active service showed no objective findings of a back disability, as such there was no condition subject to aggravation.  The examiner’s opinion is probative, because it is 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). 
Treatment records show the Veteran was not diagnosed with DDD in the lumbar spine until many years after his separation from service.  While the Veteran is competent to report having experienced symptoms of lower back pain after service, he is not competent to provide a diagnosis in this case or determine that these symptoms were a result of the fall in active service.  Additionally, the medical evidence shows a normal spine during service and an intercurrent car accident in 2007 resulting in back pain.  The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
Additionally, the Board has considered whether service connection is warranted as a chronic or presumptive disease.  38 C.F.R. §§ 3.303, 3.307, 3.309.  Arthritis of the lumbar spine was not “noted” during service or within one year of separation.  Walker v. Shinseki, 708 F.3d 1331 (2013).  The Veteran has not submitted medical evidence or other evidence that supports a finding that the arthritis in the lumbar spine developed to a compensable degree within one year of separation from active service.  In fact, the evidence has an X-ray showing a normal spine dated one month prior to separation from active service. 
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As the preponderance of the evidence is against finding that the Veteran’s current lumbar spine condition is related to active service, the benefit of the doubt doctrine is not for application, and the claim for service connection is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Erin Miller, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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