INTERVERTEBRAL DISC SYNDROME

Summary

The Veteran, an Air Force Veteran who served from July 1974 to September 1976, appeals the denial of service connection for a low back condition and the remand of his bilateral hearing loss claim. The Board found that while the Veteran has a current low back disability, the evidence did not establish its onset during service or a nexus to service. Service treatment records showed only an isolated episode of low back pain in March 1976, with no further complaints or treatment during service, and a negative finding on the separation examination. The Veteran was not diagnosed with a lumbosacral strain until 40 years after service. Two VA examiners opined that the current low back condition was less likely than not related to service, attributing it primarily to obesity and the lack of chronicity during service. Lay statements from the Veteran, his niece, wife, and a fellow service member were considered but deemed not competent to establish etiology. The Board found the VA opinions probative and persuasive, leading to the denial of service connection for the low back condition. The bilateral hearing loss claim was remanded due to a pre-decisional duty to assist error, as a prior VA examiner noted the need for further review of subsequently submitted evidence, and a new audiological examination with an expert opinion on etiology is required.

Rationale

No evidence of in-service onset or continuity of symptoms; VA examiners opined condition less likely than not related to service; Obesity identified as primary cause of current pain

Full Decision Text

Citation Nr: A22021814
Decision Date: 10/28/22	Archive Date: 10/28/22

DOCKET NO. 200203-74135
DATE: October 28, 2022

ORDER

Entitlement to service connection for a low back condition is denied. 

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded. 

FINDING OF FACT

1. A low back disability was not manifested during the Veteran's service or within a year following his discharge from service, and is not shown to be otherwise related to his service. 

CONCLUSION OF LAW

1. The criteria for entitlement to service connection for a low back condition is denied. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from July 1974 to September 1976.

By way of background, a rating decision was issued under the legacy system in March 2017.  The Veteran was issued a December 2019 Statement of the Case (SOC) which continued to deny his petition. 

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA).  The AMA became effective on February 19, 2019. 

After being issued the December 2019 SOC, the Veteran elected to continue this appeal to the Board of Veterans' Appeals (Board) via the Evidence Submission docket by filing a VA Form 10182 (notice of disagreement) in February 2020.  38 C.F.R. § § 19.2(d).  As such, the Board may consider evidence submitted into the record within 90 days from February 2020, the date on which the Veteran submitted the Form 10182.

The Veteran's appeal has been recharacterized to reflect the proper evidentiary standard of such appeals under the AMA.  38 C.F.R. §§ 3.2501(a)(1), 19.2.

Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal.  38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).  The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim.  38 C.F.R. § 20.802(a).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  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 the so-called 'nexus' requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). 

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Certain chronic diseases, such as sensorineural hearing loss and lumbosacral strain, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.  If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not
 and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Certain chronic diseases, such as sensorineural hearing loss and lumbosacral strain, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.  If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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 benefit of the doubt to the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement of service connection for lumbosacral strain (claimed as low back) is denied.

The question for the Board is whether the Veteran has a low back disability, and if so, whether the condition had its onset in service with continuity ever since, manifested to a compensable degree within the applicable presumptive period following service, or whether the condition is otherwise shown to be etiologically related to an in-service injury, event, or disease.

Following a February 2017 VA examination, the examiner indicated that the Veteran has a current low back pain and disc degeneration. Thus, the current disability requirement detailed above is satisfied.  

The Veteran's service treatment records (STRs) reflect March 1976 treatment for low back pain.  That episode appears to be isolated, as there are is no additional evidence of in-service complaints or treatment for low back pain.  A September 1976 separation examination reflects no complaints of back symptoms.  

Further, there is no competent and credible evidence showing that the Veteran complained of or was treated for hearing loss within one year following his separation from service.  The record indicates that the Veteran was not diagnosed with a lumbosacral strain until November 2016, approximately 40 years after separation.  

The VA examiner with whom the Veteran met in February 2017 opined that the Veteran's diagnosed low back condition was less likely than not incurred in or caused by service.  This opinion reconciles the March 1976 treatment for low back pain symptoms with the Veteran's September 1976 separation examination which contained a negative response to "[r]ecurrent back pain," by finding the symptoms of March 1976 had resolved.  The examiner did not find any evidence in the Veteran's file for a pattern of chronicity for a back condition during military service, or a nexus created between the Veteran's current low back condition and an injury or other causative event during military service.  The examiner found that at the time of the examination, the Veteran's height was 69 inches with a weight of 290 pounds, and that obesity was the principle cause of his back pain.

An October 2019 VA examiner agreed, explaining that the Veteran's lumbosacral strain was less likely than not incurred in or caused by any in-service event or injury, including the documented acute episode of back pain.  The examiner further explained that the Veteran did not report recurrent low back pain at his separation examination in September 1976, with only a single isolated episode of acute back pain.  

The Board acknowledges that the Veteran, Veteran's niece, his wife, and fellow Air Force service member are competent to testify to their observations.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, these individuals lack the requisite medical training and expertise to render an opinion on the etiology of the Veteran's low back condition.  Thus, these lay opinions are not competent nexus evidence and cannot in and of themselves establish a relationship between current symptomatology and service. 

The Board finds the opinions of the aforementioned VA examiners, taken together, to be probative and persuasive, as the examinations were performed by medical professionals who reviewed the evidence of record, personally examined the Veteran, and provided a reasoned rationale supported by the service treatment records.  

For all the reasons discussed herein, the Board finds that the evidence is persuasively against the Veteran's
. Brown, 6 Vet. App. 465, 470 (1994).  However, these individuals lack the requisite medical training and expertise to render an opinion on the etiology of the Veteran's low back condition.  Thus, these lay opinions are not competent nexus evidence and cannot in and of themselves establish a relationship between current symptomatology and service. 

The Board finds the opinions of the aforementioned VA examiners, taken together, to be probative and persuasive, as the examinations were performed by medical professionals who reviewed the evidence of record, personally examined the Veteran, and provided a reasoned rationale supported by the service treatment records.  

For all the reasons discussed herein, the Board finds that the evidence is persuasively against the Veteran's claim for service connection. As the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application, and the appeal must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral hearing loss is remanded. 

A pre-decisional duty to assist error necessitates remand of the Veteran's hearing loss claim. The VA examiner with whom the Veteran met in October 2019 stated that outstanding evidence was necessary to state with accuracy whether the Veteran's current hearing loss bore any etiological relationship to service. Additional potentially relevant evidence has since been added to the file, but that evidence has not been evaluated by a VA examiner, despite the prior examiner's explanation that such review was essential.

On remand, the Veteran should be afforded a new VA audiological examination and an expert medical opinion as to etiology must be obtained that considers all relevant evidence of record. 

The matters are REMANDED for the following action:

Schedule the Veteran for a VA audiological examination with a qualified examiner. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.

The examiner should state whether, on an approximately at least as likely as not basis, hearing loss of either ear had its onset in service or is etiologically related to service. 

All opinions must be supported by thorough rationale. 

 

Z. Sahraie

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Timothy Forneris

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.