Citation Nr: 1735751 Decision Date: 08/29/17 Archive Date: 09/06/17 DOCKET NO. 13-21 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATIO N Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Edelstein, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1963. This matter is before the Board of Veteran's appeals (Board) on appeal from a May 2012 decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's back disability is related to service. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1110 , 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102 , 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For chronic diseases listed in 38 C.F.R. § 3.309(a)-including arthritis-service connection may also be established by showing continuity of symptoms. 38 C.F.R. § 3.303(b); 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran contends that his back disability is the result of a fall in service while descending stairs. He testified at the hearing before the undersigned that he was hospitalized for a month and a half and placed on a limited duty profile for 6 months. He also testified that his back was not bothering him when he left service, but as he got older it "really started to bother" him. The Veteran's enlistment examination and Report of Medical History are silent for any defects or diagnoses. The Board finds that the Veteran's reports regarding the onset of symptoms related to his back disability lack credibility due to his inconsistency with other evidence of record. Upon review of the records, the Board finds that the Veteran was not completely accurate or consistent with the details of his service and the results of his injuries sustained in-service. Thus, his lay statements lack credibility with respect to these inconsistent details. For instance, the Veteran noted during his hearing in April 2017, that after slipping down the steps he was hospitalized for "probably a month and a half, maybe two months." Furthermore, he stated that he received a buck slip which restricted his activity "for, like six months." However, service treatment records include a June 1961 Clinical Record Cover Sheet detailing that the Veteran was admitted on June 3 after he slipped down a stairway that day; the diagnosis was sacrum contusion. He was discharged on June 8, with a physical profile for temporary restricted duty due to that diagnosis. The signing physician assigned a "3" to the physical profile for the lower extremities. Thus the Veteran's injury did not result in hospitalization for multiple weeks to recover, but rather it was only for a few days. The "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran's capacity and stamina (P); upper extremities (U); lower extremities (L); hearing (H); eyes (E); and psychiatric condition (S); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). See Odiorne v. Principi, 3 Vet. App. 456 (1992). An entry dated later in June 1961 noted the Veteran's previous history of sacral contusion and his current complaint that he re-injured that area when he lifted a truck door the day before. On examination, there was tenderness and slight swelling over the sacrum; no pain over the lumbar area. The assessment was low back strain. The Veteran was placed on light duty for 7 days. Service treatment records from April 1962 note a previous history of contusion to the sacrum, a fall on the stairs on April 15 and a current finding of acute anterior angulation of the distal coccyx; "may be a [fracture] or secondary to old injury." An April 17 orthopedic clinic record noted an acute blow to the sacrum 2 days prior with resultant pain over this area only. Physical examination revealed tenderness of the coccyx and rectal examination revealed some anterior deviation. This was reduced moderately well with pressure. The Veteran placed on temporary profile L-3 (no riding in military vehicles) for 2 weeks. A March 1963 physical profile notes a "3" for lower extremities because of left knee contusion. On a Report of Medical History completed at separation in May 1963, the Veteran described his health as good, and answered "no" to having "bone, joint or other deformity." Physical examination included normal clinical evaluations and no defects or diagnoses were noted. The examiner assigned a "1" to the lower extremities under the physical profile. Post-service medical records in a May 2005 private treatment record which showed that the Veteran received an MRI of the lumbar spine which revealed significant degenerative change at the L4-5 with central disc protrusion, but no canal stenosis. A November 2005 treatment record showed the Veteran was dealing with left leg pain since April 2005 after falling backwards at work and landing on his left buttock and left side. Upon MRI review, the examiner noted that the Veteran has three level disease at L3-4,4-5, and 5-1. He also has a left sided disc herniation at L4-5 causing foraminal stenosis. Subsequent treatment records document continued complaints and include a March 2006 report that the Veteran underwent a L4-L5 microscopic discectomy for his herniated disc and a re-exploration and microscopic discectomy in April 2007. In a statement by the Veteran in October 2009, the Veteran stated that, " the tailbone has not been much of a problem since the service." An emergency treatment note from March 2012 reported that the Veteran came to the emergency room after tripping and falling against some 2x4's then struck his head on cement. The Veteran stated that, "I think I was knocked out for a minute but I'm drunk so I'm not sure." The Veteran reported having lower back pain. The examiner noted that the Veteran suffers from lower chronic lumbar problems and now the Veteran reports suffering from greater mid back pain. In April 2012, the Veteran was afforded a VA examination for his back. The examiner opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In his rationale the examiner noted that there is no evidence of a lower back injury in service, only a sacrum condition that resolved. There is no objective evidence of a back condition until the work lumbar injury in 2006, with acute herniated disc which required surgery. Therefore, the examiner opined, the Veteran's current back condition is solely due to the work injury. During the Veteran's April 2017 hearing, when specifically asked if his back was bothering him after he left service, the Veteran replied that, "no not really. I, it, it really wasn't. But in, as I'm getting older, it's really starting, like, throb on me." Similarly, the Veteran reported that before his early 50's, the he did not suffer from "any kinda back problem." The Board acknowledges that the Veteran incurred an injury during service, but the greater persuasive weight of the evidence is against the manifestation during service or the continuation after service of back problems related to the injury in service. The post-service medical records do not demonstrate that any medical professional has ever indicated that the Veteran was diagnosed with any residuals of a lower back injury that either had its onset during the his military service or may have been directly related to his period of military service. The Board places great probative weight on the April 2012 VA examiner's opinion that the Veteran's lower back condition was less likely than not incurred in service because the only injury at that time was to the sacrum, which resolved. That examiner noted no evidence of a back condition until the 2006 work-related injury. The examination was based upon a review of the Veteran's medical and service history, to include his service treatment records and circumstances of service, the available post-service records, the lay statements of record, and review of a medical examination of the Veteran. The examiner also provided rationale for the opinion reached. The Board notes that was no mention of a prior back injury in any of the treatment records pertaining to the 2005 work injury or 2012 emergency treatment. There are no competent medical opinions in support of the claim. Thus the Board must conclude the preponderance of the evidence is against a nexus between the claimed in-service injury and the current disability. Finally, the Board acknowledges the Veteran's belief that he suffers from residuals of a tail bone injury that is related to his military service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide the etiology opinion under the facts of this case. The onset and etiology of his lower back injury are complex questions with multiple possible etiologies and the Veteran has not been shown to possess the medical training and expertise required to provide such an opinion. See Jandreau, 492 F.3d at 1372. Furthermore, the Board finds that the Veteran's reports regarding his onset of low back pain lack credibility due to his inconsistency with other evidence of record. Thus while the Board finds the Veteran competent to provide lay statements regarding his lower back injury and disability, the Board finds the statements by the Veteran to be less credible, and therefore are given less probative weight. Caluza, 7 Vet. App. at 511-12. Therefore, the Board finds that the weight of the evidence is against a finding of service connection. 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 the claim, that doctrine is not applicable, and the claim must be denied. Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for lower back disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs