Citation Nr: 1618200 Decision Date: 05/05/16 Archive Date: 05/13/16 DOCKET NO. 14-01 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1957 to May 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Muskogee, Oklahoma Department of Veteran Affairs (VA) Regional Office (RO). In September 2014, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. In December 2014 and July 2015, this matter was remanded for additional development. In July 2015, the Board also remanded the matter of service connection for a variously diagnosed psychiatric disorder. A February 2016 rating decision granted that claim; thus, it is no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT A low back disability is not shown to have been manifested in service, and low back arthritis was not manifested in the Veteran's first postservice year; his current low back disability is not shown to be related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence dated in August 2011, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence that VA would attempt to obtain on his behalf, and how VA assigns disability ratings and effective dates of awards. During the September 2014 hearing, the undersigned identified the issue and what was needed to substantiate the claim, and suggested evidence that could be submitted to help substantiate the claim. The Board finds that the duties mandated by 38 C.F.R. § 3.103(c)(2) have been met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) are unavailable; the record notes that they were likely destroyed by a fire at the National Personnel Records Center. Pertinent postservice treatment records identified have been secured for the record. March 2015 and January 2016 VA examinations were conducted in conjunction with this claim; while the Board previously found the earlier examination inadequate, the July 2015 Board remand ordered a new VA examination (which was conducted in January 2016). The January 2016 examination report reflects familiarity with the record, includes rationale for the opinion provided, and is adequate for rating purposes. The AOJ has substantially complied with the Board's remand instructions. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). Certain chronic diseases, to include arthritis, may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As noted above, the Veteran's STRs are unavailable for review. However, he contends that his current back disability is related to his time spent loading and unloading heavy cargo during service, and his Form DD-214 confirms his military occupational specialty was air freight specialist (cargo handler). September 2005 VA records note a history of multiple traumas to the neck, but no complaints of back problems. January 2006 VA records note treatment for cervical degenerative disease, but no low back complaints. In a July 2006 statement, the Veteran described his duties during service as loading and unloading cargo for military flights from bases in the North Atlantic, Europe, and Asia. He said they worked 12-hour shifts, seven days a week for most of his tour. A March 2010 VA record notes there was no back pain. In July 2010, the Veteran reported some back pain, and said he was "angry at the military" for not protecting him from back problems as he was lifting a lot and loading planes while in the Air Force. A September 2010 VA record notes complaints of low back pain and bilateral lower extremity pain. On psychiatric evaluation later that month he reported chronic back pain. In October 2010, the Veteran continued to complain of chronic low back pain. The diagnosis was lumbar disease with chronic low back pain, "possibly related to previous service in the Air Force as a loader for aircraft." A December 2010 MRI confirmed multilevel degenerative disc disease (DDD) of the lumbar spine. In February 2011, the diagnosis was lumbar disease with chronic low back pain, possibly related to previous service in the Air Force as a loader for aircraft, now with documented multilevel DDD and multilevel spinal stenosis. Subsequent VA records repeat this finding on multiple occasions. In March 2011, a VA provider wrote that the Veteran has documented lumbar disc disease and lumbar spinal stenosis with neurogenic claudication and felt "it is quite possible" that such disability began while serving on active duty, though there were no records documenting any back injury. In May 2011, the Veteran reported increasing back pain over the past several months. The diagnosis was multiple levels of lumbar degenerative disease with mild central stenosis and moderate multiple levels of foraminal stenosis. In September 2011 correspondence, he said he had no active duty treatment for his low back disability. VA records that month note increasing back pain over the past several months. The diagnosis was multiple levels of lumbar degenerative disease with mild central stenosis and moderate multiple levels of foraminal stenosis. April 2012 VA records show the Veteran complained of low back pain. Later that month, VA records again note a diagnosis of lumbar disease with chronic low back pain, possibly related to previous service in the Air Force as an aircraft loader, with documented multilevel DDD and multilevel spinal stenosis. In March 2013, he complained of low back pain and imaging found unspecified degenerative changes in the spine. In a May 2013 notice of disagreement, the Veteran said his low back condition resulted from his duties as a cargo loader in the Air Force. He reported handling a total of roughly 200 to 350 pounds of cargo during service, and that his VA physician believed it was reasonable that years of heavy lifting and carrying in service may have caused his back problems. At the September 2014 hearing, the Veteran testified he injured his back moving heavy cargo and pushing engines. He related that, on one occasion, his crew of four people moved 6,000-pound engines. He denied having any back problems during service, and indicated that even if his STRs were available, none would relate to back complaints. He said the only time he went to a doctor for forty years after service was for eye and flu complaints. He reported his back problems were first discovered in 2010, and prior to that, it was never an ongoing problem. On March 2015 VA examination, the diagnoses were degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported first having back pain in his thirties, off and on, that gradually progressed over the last ten to fifteen years. He reported loading cargo on and off airplanes while on active duty, and also that he had to push and pull cargo often. He did not recall any back injury or pain at the time, and said he worked as a delivery truck driver, construction worker, and owned a scrap metal business postservice. There, he would use a forklift to hoist metals. The examiner opined that the diagnosed back disability was less likely than not related to service. Although his STRs were unavailable for review, the examiner considered the Veteran's duties as a freight specialist and cargo handler during service. However, considering that the first documented complaints of low back pain and his current DDD were in 2010, intercurrent neck injuries in the 1970s without documentation regarding injury or treatment, and a postservice history of physically demanding occupations, he found nothing suggesting significant injury to the lumbar spine on active duty, or that a chronic low back condition existed on active duty. Notably, the Veteran's own subjective history indicated onset of minor back problems when he was in his 30s, a decade after service. Consequently, his low back disability was felt to be due to wear and tear over time. In May 2015, the Veteran said the first indication he had back problems was in 2007 or 2008. He confirmed the March 2015 examiner's notes regarding his postservice occupation, but indicated that the work was not as strenuous as the examiner indicated. Moreover, he said that he also drove a forklift in service, for more than 1200 to 1500 hours, and did not drive a forklift postservice until 1972. He indicated that he also had a tolerance for pain which accounted for silent records for several years after service. He indicated that he went to the doctor about five times in total during the decades between service and seeking VA treatment. On January 2016 VA examination, the diagnosis was degenerative arthritis of the thoracolumbar spine, which the examiner opined was less likely than not related to service. The examiner specifically indicated that the Veteran's STRs were unavailable, but found no evidence indicating he had back pain for several years following discharge. Prior medical records also showed that DDD was not confirmed by MRI until 2010. There was no objective evidence on physical examination to indicate he had back pain in the years immediately following discharge. The examiner specifically considered the Veteran's work as a cargo handler during service, but because the first documented complaints of back pain were three or more decades postservice, found that his DDD was instead the result of wear and tear due to aging. It is not in dispute that the Veteran has lumbar DDD; such diagnosis is clearly documented in his record and has been confirmed by imaging. Similarly, considering the heightened duty to assist the Veteran (due to his missing STRs), and the consistency of his lay statements and DD-214, it may be conceded that he engaged in physically demanding work as a cargo handler during service. However, he denies any low back problems during service. Therefore, service connection for a low back disability on the basis that such became manifest during service and has persisted is not warranted. Moreover, his current low back arthritis was not manifested in the first postservice year (it was first confirmed by MRI in December 2010). Thus, presumptive service connection for his lumbar DDD as a chronic disease under 38 C.F.R. § 3.309(a) is also not warranted. See 38 U.S.C.A. § 1112. Similarly, there is no evidence or allegation suggesting he has had continuous symptoms of lumbar DDD since service. The Veteran himself has provided sworn testimony denying low back problems until 2010 and the first documented low back complaints are in early 2010 (almost fifty years postservice). At the earliest, the Veteran has reported low back problems in 2007 (over 40 years postservice). Thus, service connection for lumbar DDD based on continuity of symptomatology is also not warranted. Consequently, what remains for consideration is whether the Veteran's current lumbar DDD is otherwise related to his military service, to include his duties as a cargo handler. Whether such a relationship exists is a medical question beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The only medical opinions in the record relevant in this matter are a March 2011 VA provider's opinion (with accompanying diagnostic notes in subsequent VA treatment records), the March 2015 VA examiner's opinion, and the January 2016 VA examiner's opinion. As the March 2011 opinion is not accompanied by rationale, it is inadequate for rating purposes and not probative evidence. The Board's July 2015 explicitly found the March 2015 VA examiner's opinion inadequate and sought a new medical opinion. Thus, the only competent and adequate medical opinion in the record is the January 2015 examiner's negative opinion. That opinion reflects consideration of the entire record, and includes a complete rationale which points to the absence of complaints during a lengthy intervening period, and notes that the Veteran's activities postservice (i.e., jumping on a trampoline and construction work) are inconsistent with an existing low back disability, and provided an alternate etiology deemed more likely (i.e., degeneration due to age and normal wear and tear). Consequently, it is highly probative evidence in this matter; absent medical evidence to the contrary, it is persuasive. Thus, service connection for a low back disability is also not warranted on the basis that it is otherwise related to the Veteran's military service (including his duties as a cargo handler therein). The preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. ORDER Service connection for a low back disability is denied. ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs