Citation Nr: 1721186 Decision Date: 06/12/17 Archive Date: 06/23/17 DOCKET NO. 12-01 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran had active military service from February 1967 to January 1969. This case comes before the Board of Veterans Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified before the undersigned at a Board hearing at the RO in July 2012. A transcript has been associated with the claims file. In May 2014, the Board remanded the appeal. FINDINGS OF FACT The Veteran's low back disability is unrelated to military service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran received VCAA notice in a letter dated in April 2009. This came after the initial adjudication, but the timing deficiency was cured by re-adjudication of the claim in November 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran was afforded an examination and all reported in-service and post-service treatment records were obtained. There have been no contentions that the examination was deficient in any way. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The VA examiner noted and evaluated the Veteran's service and post service treatment record in his rationale. The examiner provided the requested opinion regarding the low back disability. Stegal v. West, 11 Vet. App. 268, 271 (1998). II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Generally, service connection requires evidence of: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b) (2016), when a chronic disease (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., hypertension and arthritis) may be also presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307 (a) (3); 3.309 (a) (2016). III. Analysis The current disability element of a successful claim for service connection has been established. Per the January 2016 VA examination, the Veteran has a current diagnosis of degenerative arthritis of the spine. The Veteran testified at the Board hearing that he incurred his current low back disability as the result of an injury while moving equipment in service. The Veteran's service treatment records (STR's) do not substantiate his report that he was injured while moving items in September or October 1968. The Veteran is; however, competent to report the injury. The absence of corroborating records is, by itself, insufficient to render the Veteran's report incredible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The remaining question is whether there is a link between the current back disability and an in-service injury. In support of the claim that his current a low back disability is related to service, the Veteran submitted a letter from his private physician. In a March 2010 letter, the Veteran's physician, Dr. D. P., stated that the Veteran reported that his injury occurred during deployment while moving heavy equipment." He also stated that the Veteran was initially diagnosed with low back sprain/strain but advanced imaging suggests what actually happened was a disc injury. He went on to say that, the severity of the anterior claw osteophytes indicated, "This issue happened a very long time ago." Records from Dr. P date back to 2003 and show treatment for low back pain and other disabilities in association with weight training. VA treatment records date from 2006, but first report back complaints in 2009. At his hearing, the Veteran testified that he injured his back while lifting cables and other heavy items in late summer or early autumn 1968. He indicated that he had sought treatment a couple of months after service, but had difficulty providing the specifics of his early post-service treatment, and it was not clear that this treatment was for the back disability. In June 2014 the Veteran was afforded a VA examination pursuant to the Board's remand. During the examination the Veteran again reported that "in 1968 he was putting heavy cable and munitions on a truck and strained his back...he was seen and told he had strained his back; it resolved in a few days with rest and pain pills." He also stated that after service he saw chiropractors and orthopedic surgeons for this; they had different opinions as to the diagnosis. After considering the Veteran's statements, thoroughly reviewing the Veteran's private and service treatment records, and examining the Veteran, the examiner concluded that the Veteran's current low back disability "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner reasoned that the service treatment records did not substantiate this condition. He noted that there was no evidence in the STR's of the injury described by the Veteran, that the Veteran denied back pain at discharge, and the exit exam was normal. Additionally the examiner noted that there was no supporting evidence that in the ensuing few years the Veteran had any back problems. Moreover, the examiner stated that the Veteran later became a power lifter who competed internationally, per chart notes; and was able to dead lift 525 pounds. The examiner advised that this type of activity would commonly cause a great deal of strain on the back. Although the examiner noted the absence of supporting clinical records; he also considered the Veteran's reports and did not rely exclusively on the absence of such records. The examiner's conclusion was supported by a rationale and is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Therefore, the Board finds that the Veteran is not entitled to direct service connection for his low back condition. Dr. P's opinion is less probative, because it does not consider the Veteran's post-service weight lifting or the reports of back pain after that activity. Service connection for arthritis is available based on a continuity of symptomatology. 38 C.F.R. § 3.309(a) (2016); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The clinical record does not document any back disability until 2003, at that time there were no reports of a disability dating from service. The Veteran is competent to report a continuity of symptoms, but he had never explicitly reported such continuity; and he told the VA examiner that his symptoms had resolved after the in-service injury. This record is against finding a continuity of symptomatology. In August 2012 the Veteran submitted a letter from his cousin stating, "That after returning from the army in 1969 some [karate] moves became too difficult and that the flexibility he had formerly known was missing, as well as speed from his right leg...we had discussions about training and he was disappointed that his back problem prevented him from continuing some portions of his training regime and athletic supremacy" The statement does not show continuing symptoms dating back to service, only at some point after the Veteran's return from service. The record shows that as late as 2003, the Veteran was lifting weights well in excess of 500 pounds. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for low back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Service connection for a low back disability is denied. ____________________________________________ Mark. D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs