Entitlement to service connection for back pain is denied.

Citation Nr: 26001468 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 19-25 100 DATE: January 30, 2026 ORDER Entitlement to service connection for back pain is denied. FINDING OF FACT The Veteran's back pain is not shown to be related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for back pain have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1956 to September 1957. The Veteran, unfortunately, died during the pendency of the appeal in July 2020. His spouse has been substituted as the Appellant. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2016 rating decision issued by the Department of Veterans Affairs (VA). In November 2024, the Board denied entitlement to service connection for back pain. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (CAVC), and, through a June 2025 Joint Motion for Partial Remand (JMPR) and July 2025 Order, the issue was remanded to the Board to address whether a medical opinion was necessary to make a decision on the claim under 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Specifically, the Veteran claimed that his back pain was due to paratrooper training, and the Board, did not address whether the evidence of record was sufficient to meet the "low threshold" contemplated in McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006). The Appellant and the Veteran's daughter, M.M., testified before the undersigned Veterans Law Judge in a September 2024 hearing. The transcript has been incorporated into the record. Service connection for back pain is denied. The Veteran asserted entitlement to service connection for back pain as due to in-service paratrooper training. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes that, other than a September 1957 DD Form 214, the Veteran's service medical and personnel records are unavailable for review as they may have been destroyed in the 1973 fire at the National Archives and Records Administration. When, as here, these service records are lost or missing, through no fault of the Veteran or Appellant, the VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, while indeed unfortunate, missing service records does not obviate the need for the Appellant to have medical nexus evidence supporting the claim of entitlement to service connection for back pain. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). While service treatment records are not available, the evidence of record shows that the Veteran did not seek treatment for back pain while in service. In this case, a March 2010 VA treatment record shows the Veteran had multilevel degenerative changes in his lumbar spine. There is also at least a history of low back pain during the period on appeal. However, the evidence of record does not persuasively show that the Veteran's back pain had an onset during or within the year after service. A December 2009 VA nursing note indicates that the Veteran was experiencing back pain with an onset of 6 months. In a September 2009 VA treatment record, under the "accidents/injuries" section, the Veteran only reported a back injury that occurred in 1980 due to a fall, albeit it was noted as "not serious." A June 1997 treatment note states that the Veteran's shoulder and back pain were worsened by a fall in 1997. A July 2010 VA treatment note indicates that the Veteran had a long history of lower back pain which began approximately 40 years ago, which is 1970, 14 years post-service. But there was no mention of injury to his treatment providers at that time of an in-service injury or continuing back pain since separation. The Board finds the VA treatment records to be highly probative as they are the earliest documented treatments for his back pain and show an approximate onset of his pain and possible causes. In the treatment records, the Veteran reported two different post-service falls to his treating providers, but there is no record that he informed his providers that he believed his pain was due to paratrooper training while in service, or that the pain had its onset in service. This evidence is persuasive against finding that the Veteran has a continuity of back pain symptoms since separation, or that it was otherwise incurred in or caused by service. In addition, the Board notes that while the Veteran states that he engaged in paratrooper training, he does not indicate that he was injured during training, or that he experienced hard landings. The evidence of record also does not indicate that the Veteran claimed that his back pain had its onset in-service, or within the year following service. Nor does the Veteran state that he experienced continuous symptoms since service. Additionally, there is no evidence of record other than the Veteran's statements, and non-contemporaneous lay statements based upon what the Veteran told them, that the Veteran trained as a paratrooper while in service. As to the onset and continuity of symptoms, in weighing and balancing the veracity of the Veteran's statements, the Board finds that the statements of the Veteran made to his health care providers in 2009 and 2010 to be more probative than his more recent statements. The earlier statements were made contemporaneous to the event which caused him to seek medical treatment and were made in the process of seeking that treatment. The Board also finds the statements and testimony from the Appellant and her daughter, M.M., to be less probative than the Veteran statements to his treatment providers for the same reason. In addition, the Appellant did not meet the Veteran until 10 years after his separation, and she testified to not noticing his back problems until about two years after meeting him. This timeline corresponds with the statement the Veteran made to his treating physician that his back pain began in approximately 1970. This would also suggest his back pain did not manifest within a year of his separation or that there had been a continuity of symptoms. The Board also considers the statements that the Veteran made to his treatment providers to be more probative than the recollection from his cousin B.W. Even if B.W. had witnessed symptoms that may be related to a back problem, it still does not support that it was a chronic condition or that the Veteran continued to have similar pain until his diagnosis of lumbar degenerative changes. The Board finds that the lay statements made by M.M., B.W., and the appellant are not sufficient to establish that an in-service event occurred, that the Veteran's symptoms had their onset in service, or that he experienced continuous symptoms since service. The Board has considered the Veteran's statements; to include his assertions that his back pain is related to service. However, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Back disorders require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for his back pain. Here, the Board finds that the Veteran does not have a back disorder that occurred during service, onset within one year of service, or is otherwise related to service. In this regard, the Veteran has not asserted that he experienced back pain during service. Furthermore, there is no indication that the Veteran's back disorder had its onset within one year of his discharge from service. The Veteran's post-service treatment records and lay testimony show that he experienced back pain beginning in approximately 1970. A medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service injury or disease, and (3) an indication that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A (d)(2). The Veteran has not been afforded an examination in connection with his claim, and the VA does not have a duty to provide one here as the persuasive evidence of record does not establish an event, injury, or symptom onset. McLendon, supra. The evidence of record does not indicate that the Veteran's current disabilities had a causal connection or were associated with his active military service. The record is devoid of evidence to support that the Veteran has a back disability that is related to service, other than his own statements suggesting that such a link exists. A mere conclusory statement that a current condition is related to service is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA opinion is not warranted in regard to this claim. Here, the evidence of record is not sufficient to meet the "low threshold" contemplated in McLendon. Based on the more probative lay and medical evidence, the Board finds that the evidence is persuasive against finding that the Veteran's back pain during the period on appeal manifested as chronic within a year of his discharge from active duty or that it is otherwise incurred in or related to service. Accordingly, entitlement to service connection for back pain is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the persuasive evidence is against a finding that service connection is warranted, the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gruber, L. 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.