Citation Nr: 18160531
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 13-17 694
DATE:	December 28, 2018
ORDER
Service connection for a low back disability, including degenerative arthritis of the spine, is denied.
 
FINDING OF FACT
The Veteran’s low back disability is not related to service.
CONCLUSION OF LAW
The criteria for service connection for a low back disability, including degenerative arthritis of the spine, have not been met.  38 U.S.C. §§ 1101, 1112, 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 January 1985 to May 1986.
The case is on appeal from an May 2011 rating decision.
In October 2017, the Veteran testified at a Board hearing.
The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Service connection for a low back disability. 
Legal Criteria
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303.  A veteran seeking compensation under these provisions must establish three elements: “(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.”  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection for certain chronic diseases, such as arthritis, will be presumed when the disease develops to a compensable degree within one year of a Veteran’s discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).  
In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Background and Facts
The Veteran seeks service connection for a low back disability that he contends had its onset in service and continued thereafter.  Specifically, the Veteran asserts that he suffered multiple injuries to his back during service that weakened his back, causing his back to be more susceptible to injury later in his life.  See February 2012 Notice of Disagreement (NOD).  
Service treatment records (STRs) include a March 1985 notation indicating that the Veteran slipped in the galley and struck his back on the deck.  At that time, a mechanical back strain with mild sciatica was noted.  A May 1985 STR shows the Veteran complained of sharp stabbing pain in the upper middle back that had started six days earlier.  At that time, there was no noticeable trauma to the Veteran’s back, no tenderness to palpitation, and range of motion was within normal limits, as was the Veteran’s gait.  In addition, a September 1985 STR indicates that the fell going down a ladder hurting his back and right hand.  The notation indicates further that there was bruising to the Veteran’s neck in the lumbar area but there was no swelling or loss of sensation.  
Post-service private treatment records include February 1999 note in which the Veteran complained of back pain with radiation to the buttock.  A February 2000 private treatment note described complaints of pain in the back, right hip and numb toes.  A May 2010 x-ray of the lumbar spine is documented that notes degenerative changes in the thoracolumbar region with a grade 1 L5 on S1 spondylolisthesis and no fracture was noted.  In addition, the records indicate that the Veteran underwent lumbar surgery in 2010.  
The evidence of record also includes a February 2012 letter from Dr. P.F. who has treated the Veteran since the 1980s.  The letter states that he treated the Veteran for a spinal injury following a fall from 35 feet while on active duty and that he was treated with surgical fixation hardware L1, 2, 2, 4, 5.  
VA treatment records show that the Veteran was diagnosed with low back pain and degeneration of lumbar or lumbosacral invertebral disc in May 2011 and generally show complaints of back pain.    
The Veteran underwent a VA examination in April 2011.  The examiner determined that the Veteran’s lumbar spine problems at the time of the examination were not related to his active military service.  He explained that there is no objective documentation in the Veteran’s STRs that the onset of the current lower back disabilities began during service.  The examiner noted that although the Veteran did sustain some trauma to the back during service, these were time limited events with no follow-up medical treatment required during service.  He found it significant that there was no medical documentation of any back problem until some 25 years thereafter.  The examiner also noted that the Veteran had reported that in May 2010 he had an acute worsening of his low back pain after lifting a very heavy oversized air conditioning unit and that he had a spinal fusion in June 2010.  Thus, the examiner stated that a plausible alternative explanation for the Veteran’s back pain was post-service work related trauma to his back reported by the Veteran.
A second medical opinion was obtained in March 2013 to include consideration of additional private medical records.  The physician who provided the March 2013 medical opinion determined that the Veteran’s current, chronic back disability is less likely than not due to any in-service event and/or trauma.  He found it significant that the Veteran was treated on only one occasion for each incident with no follow up.  The physician explained further that when the Veteran was medically discharged for other conditions, there was no mention of any back problems as a chronic disability.  Additionally, he noted that post-service medical evidence specifically shows post-service injuries caused by heavy lifting which led to the need for back surgery, years after his discharge from service in 1986.
At his October 2017 Board hearing the Veteran described three incidents he contends caused injuries to his back.  First, the Veteran described hurting his back when he slipped from a ladder and injured a sciatic nerve on his left side.  Second, the Veteran described slipping on the mess deck aboard ship and hitting his right-side nerve.  The Veteran also described another incident in which he fell 35 feet while painting the outside of a ship when the knot in his line came loose.  He describes that his fall was stopped before he hit the water because the line securing him to the ship caught him causing injury to his back.
Subsequently, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) addressing both on the likelihood that the Veteran’s back disability had its onset, or is otherwise related to service, and on the likelihood of whether any arthritis of the back manifested within a year of service.  In June 2018, an orthopedic surgeon reviewed the file and opined that the Veteran’s back condition is not related to service.  The orthopedic surgeon acknowledged that the Veteran likely had a mild back sprain in 1985 as documented in his STRs but noted that there is a paucity of symptoms in the Veteran’s STRs that would support a more significant injury.  In addition, the orthopedic surgeon noted that the Veteran presented approximately 25 years after service with complaints of lower back pain, which is inconsistent with an ongoing problem due to a more significant back injury.   
The orthopedic surgeon also opined that it is less likely than not that the Veteran’s back arthritis manifested within one year of active duty.  He explained that based on the Veteran’s history and medical records, the Veteran’s back arthritis likely manifested sometime in the 2000s.  The orthopedic surgeon stated that the development of osteoarthritis and degenerative arthritis is attributable to normal wear and tear over the Veteran’s lifespan, particularly in light of the fact that the Veteran performed manual labor and reported an accident from lifting heavy air conditioners. 
Analysis
As an initial matter, the evidence of record shows that the Veteran has a present disability.  He has been diagnosed with lower back pain, and degeneration of lumbar or lumbosacral invertebral disc.  See generally VA treatment records.  Private treatment records also show that the Veteran had two lumbar fusion surgeries in 2010.  
Next, the Board finds that the second element of an in-service incurrence of an injury has been satisfied.  At his October 2017 Board hearing the Veteran described three incidents he contends caused injuries to his back.  The Veteran’s credible statements regarding the occurrence of two of these incidents are bolstered by notations in his STRs.  First, the Veteran described hurting his back when he slipped from a ladder and injured a sciatic nerve on his left side.  The Veteran’s contention regarding the occurrence of this incident is bolstered by a notation in a September 1985 STR that indicates the Veteran was going down a ladder and fell hurting his back and right hand.  
Second, the Veteran described slipping on the mess deck aboard ship and hitting his right-side nerve.  The Veteran’s contention regarding the occurrence of this incident is bolstered by a notation in a March 1985 STR that indicates the Veteran stated that he had slipped in the galley and struck his back on the deck.  At that time, a mechanical back strain with mild sciatica was noted.
The Veteran also described another incident in which he fell 35 feet while painting the outside of a ship when the knot in his line came loose.  He describes that his fall was stopped before he hit the water because the line securing him to the ship caught him causing injury to his back.  This incident is consistent with the circumstances of the Veteran’s service, as his DD-214 indicates that the Veteran was in the Navy and stationed on the U.S.S Garcia.  Thus, an in-service incurrence of an injury has been established by the evidence of record.
Although the evidence of record establishes that the Veteran has a current disability and the incurrence of multiple in-service injuries, it fails to establish a nexus between the Veteran’s current low back disability and any of the in-service injuries or events described by the Veteran.  In this regard, the evidence of record contains three medical opinions that all conclude that the Veteran’s low back disability is less likely than not due to any in-service event.  Each of the opining physicians indicated the although it is likely that the Veteran injured his back during service, the fact that the Veteran presented approximately 25 years after service with complaints of lower back pain is inconsistent with an ongoing problem due to a more significant in-service back injury.  In addition, each of the opining physicians stated that a plausible alternative explanation for the Veteran’s back pain was post-service work related trauma to his back reported by the Veteran.  In this case, the Board accords great probative weight to the medical opinions of record.  They are persuasive as the rationale is based on accurate facts, including the Veteran’s contentions, and sound reasoning, and they are consistent with evidence of record, as well as each other. 
In addition, the evidence of record does not show onset of an arthritis of the back within one year of the Veteran’s discharge from service.  The orthopedic surgeon who provided the June 2018 expert opinion stated that it is less likely than not that the Veteran’s back arthritis manifested within one year of active duty service because it is more likely that the Veteran’s back arthritis manifested sometime in the 2000s, and is due to normal wear and tear over the Veteran’s lifespan, particularly in light of the fact that the Veteran performed manual labor and reported an accident from lifting heavy air conditioners.  Furthermore, a continuity of symptomatology is not shown for any arthritis as there is a post-service intercurrent cause of the workplace injury.  The Board also accords great probative weight to the June 2018 expert opinion because it is clear, unequivocal, and based on the relevant information, including the Veteran’s STRs, post-service treatment records, and relevant diagnostic testing as well as the statements provided by the Veteran.  Moreover, the orthopedic surgeon’s explanations are logical and follow from the facts and information given.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).  
The Board acknowledges the letter from Dr. P.F, stating he treated the Veteran for a lumbar spinal injury after his fall from the side of a ship while in service and that the Veteran was treated for this injury thorough surgical fixation hardware in 2010.  However, in this case, the Board accords less probative weight to Dr. P.F.’s statement as there are no treatment reports for the lower back including any back surgery, and the surgery was performed in 2010 by a different physician.  In addition, the statement does not consider the Veteran’s history of manual labor or any work-related accidents involving the Veteran’s back evidenced by the record.  
While the Veteran believes that his current low back disability was incurred in or is related to his service, these are complex medical questions outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case.  This nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness.  Thus, the Veteran, as a lay person, has not established the competence needed to rebut an expert medical opinion.  See Fountain v. Mcdonald, 27 Vet. App. 258, 274-75 (2015).  As such, his opinion is not adequate to rebut the April 2011 VA examiner’s opinion, the March 2013 opinion, or the June 2018 expert opinion from the orthopedic surgeon, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his lower back disorder and service.  See Id. at 274-75.
(Continued on the next page)
 
In sum, the Board finds that the Veteran’s low back disability is not related to service.  In reaching the conclusion the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.  Accordingly, service connection is not warranted for a low back disability, including degenerative arthritis of the spine.
 
RYAN T. KESSEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Gray 

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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