Citation Nr: 18160433
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 10-18 801
DATE:	December 26, 2018
ORDER
Service connection for a low back disorder is denied.
FINDINGS OF FACT
1.  The Veteran had active service from September 1968 to September 1972.
2.  A low back disorder was not shown in service, not shown to a compensable degree within one year from service, symptoms were not continuous since service, and a low back disorder is not causally or etiologically related to service.
CONCLUSION OF LAW
A low back disorder was not incurred in service or presumed to have been incurred therein.  38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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.  See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 
Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  See 38 C.F.R. § 3.307.
Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310.  Allen v. Brown, 7 Vet. App. 439 (1995).  In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Veteran claims he has a current low back disorder caused by service.  He has not claimed and the evidence has not shown that his back disorder was caused by a service-connected disability.  As such, secondary service connection is not for application.
Turning to the evidence, the first element of direct service connection – a current disability – is met.  The Veteran was diagnosed with advanced osteoarthritis with pseudo spondylolisthesis in 2007.  As such, the first element of service connection is met.
Next, the second element of service connection – an in-service incurrence – is also met.  September 1968 service treatment records (STRs) show lordosis of the spine.  The Veteran has also claimed he injured his back when a drill sergeant held his head under water, and that during an additional incident a drill instructor placed a boot on his back.  He also relayed that his back hurt from carrying significant amount of weight in service, and that he went to sickbay once in 1971 to complain of back pain.  However, none of these events are shown in his STRs.  Nonetheless, given the evidence of record and the Veteran’s testimony, the second element of service connection is met.
However, the third element of service connection – a medical nexus – is not supported by the evidence.  A June 2016 VA examiner found that it was less likely than not a current low back disorder was related to service because the Veteran was not treated for back issues during service, and September 2015 VA X-ray showed a normal lumbar spine.  Further, the examiner noted that the Veteran claimed he received treatment for his symptoms beginning after 2000, decades after separation.
The September 2016 Board remand instructed that an examiner specifically comment on the diagnosis of lordosis during service.  The August 2018 VA examiner subsequently found it was less likely than not that the Veteran’s current back disorders were caused by service.  The examiner explained that lordosis referred to the concave curvature of the spine as seen from the side, and that this did not indicate any pathology.  
As such, the Veteran’s STRs did not show injury or treatment of a back disorder other that lordosis.  The examiner also reviewed the same incidents noted above that were not shown in the STRs.  However, the examiner noted that risk factors for osteoarthritis include aging, joint injury, obesity, genetics, and gender, and concluded that aging was most likely responsible for the Veteran’s progression of osteoarthritis, and the most likely causative factor for its onset.
There is no other VA or private medical opinion that alleged any etiological connection between service and the Veteran’s current disability.  As such, the medical evidence weighs against finding a nexus and does not support service connection on a direct basis.
Arthritis is a chronic disease under 38 C.F.R. 3.309 and presumptive service connection will be considered.  However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or a diagnosis of a low back disorder other than lordosis, which the medical examiner found did not indicate pathology.  Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis.
Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the medical evidence shows the Veteran first complaining of back pain in 2005.  During a VA medical appointment in March 2015 he noted that his chronic back pain began five years prior, dating the onset to 2010.  Social Security Administration (SSA) records show he claimed he had back and leg pain beginning in 2005.  These records are particularly probative as they were given for the purpose of obtaining treatment, incentivizing accuracy.  
The Veteran separated from service in September 1972.  The medical evidence shows that symptoms of his current disability developed over thirty years after service.  The onset of symptoms aligns with the August 2018 VA examiner’s rationale that age was the causative factor for the onset of the Veteran’s back disability. While the Veteran maintains he has had back pain in and since service, this is not supported by the contemporaneous evidence.  As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis.
Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1972 but did not note symptoms until 2005 at the earliest, with treatment beginning in 2015.  This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis.  Therefore, presumptive service connection on any basis is not supported by the medical evidence.



With respect to his claim for a low back disorder, the Board has considered the Veteran’s lay statements that his claim was caused by service.  He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462.  
Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file.  The Veteran has asserted that his VA examiners did not have sufficient expertise to determine the etiology of his low back disorder.   
The Board finds that the examiners were competent to conduct the examinations.  In this regard, a VA examiner is presumed to be competent.  See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011).  The Veteran has not provided clear evidence that the examiners, while not orthopedic specialists, were not competent to rebut this presumption.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009); Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).  Specifically, there is no evidence that the examiners lacked education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1); see also Cox v Nicholson, 20 Vet. App. 563, 569 (2007).  
Thus, given the competency of the examiners, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements.  As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service.  In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied.
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).           
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brendan A. Evans, 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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