Citation Nr: 1740108 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 12-28 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction is retained by the RO in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge during a September 2013 videoconference hearing. A transcript of that hearing is associated with the claims file. This case was previously before the Board in January 2015 when it was remanded for additional development. It has returned for adjudication. FINDING OF FACT A low back disability was not shown in service or for many years thereafter; and, a preponderance of the evidence fails to establish that a low back disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION These claims were Remanded in January 2015 for additional development, including to obtain additional treatment records and a VA examination regarding the nature and etiology of the Veteran's claimed back condition. The Board finds that there has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Veteran, through his representative, seemingly challenged the adequacy of the most recent (April 2015) VA examination. No specific deficiencies were identified. However, to resolve the "conflict" that existed, the representative requested an independent medical opinion. See 38 C.F.R. § 20. 901 (d) (independent medical expert (IME) opinions). The Board does not find that there is good cause for procuring an IME opinion. There is no issue of such medical complexity or controversy as would warrant such opinion. Specifically, despite the contentions made by the Veteran's representative, the examination is more than adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran alleges that he has a low back disability related to his period of active service. Specifically, he attributes degenerative disc disease and herniated discs to an incident in Germany in 1981 during which he was ordered to assist in up-righting fallen carry transporters. During the April 2015 VA examination, the examiner noted that the Veteran had diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. Accordingly, the requirements for Shedden element (1) have been met. The Veteran's service treatment records are absent of complaints or treatment for chronic low back disability. An x-rays was taken of the back in 1983 following a fall, but that yielded no pathology. On clinical evaluation during the Veteran's August 1983 separation examination, his spine was noted to be normal. There is no evidence of any complaints or treatment for hernias or a back injury during service or during the discharge examination. On his accompanying report of medical history, the Veteran denied ever having recurrent back pain. However, the Veteran is found competent to report lifting heavy vehicles during service and experiencing pain thereafter. Accordingly, in affording the Veteran the benefit of the doubt, the Board finds that the requirements of Shedden element (2) have been met. Despite the above, the Board finds that the Veteran's claim fails on Shedden element (2), evidence of a nexus to service. The Veteran's post-service treatment records show private treatment for back pain in December 1998. At that time, he reported injuring his back in September 1998. He was diagnosed with "disc displacement" and had an MRI showing a herniated disc in the lumbar spine. The medical records thereafter show treatment for back pain. In March 2004, the Veteran indicated that he injured his back on the job in 1984 and that he filed for workers' compensation. In September 2008, imaging of the Veteran's lumbosacral spine showed degenerative disc disease. The Veteran submitted a May 2011 Social Security Administration (SSA) favorable disability determination related, in part, to his back disability. During an October 2010 examination for the purposes of the SSA determination, the Veteran reported that his back pain began 20 years prior, "after he left the Army". He also reported a history of working in labor-intensive positions from June 1995 through August 2008. In correspondence dated in October 2012, the Veteran stated that he hurt his back in a work-related incident due to already having an injured back related to his active service. During the September 2013 VA videoconference hearing, the Veteran explained that he started having pack pain in 1981 after up-righting flipped vehicles in service. He stated that he sought treatment from a field hospital but he was given medication and sent back to his post. He further indicated that he did not continue to seek treatment for back pain, but rather took Tylenol when he had pain. During an April 2015 VA examination, the Veteran reported a history of chronic low back pain that started in 1982 while stationed in Germany. He said that he and several other soldiers were trying to upright a truck that flipped over when he felt something snap in his back. He denied seeking medical attention but indicated that the pain progressively worsened. The Veteran reported finally seeking treatment in 2010. Following review of the claims file and physical examination, the diagnoses were degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. The examiner opined that the claimed condition was less likely than not incurred in or caused by the Veteran's claimed in-service injury, event, or illness. The rationale was that a review of the Veteran's service treatment records, including the exit physical, show no complaints, evaluation, or treatment for back pain or back injury in service. Alternatively, there was documentation from his civilian orthopedist of a post-service back injury. The examiner believed that the Veteran's occupation/jobs after service were the more likely cause of his current back disabilities. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the Veteran's back disability first manifested years after service separation and are not related to an injury or event in active service. The service treatment records are silent for complaints, findings, treatment, or a diagnosis of a back disability. There is also no objective medical evidence of chronic symptoms of arthritis either during active service or continuously since service separation. Indeed, the first medical evidence of any spine disability/problem was in 1998, over a decade after service discharge. Such a long time between service and actual treatment weighs against the assertion of service onset or continuity of symptomatology. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000)(holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Despite the Veteran's current contentions that his back pain started in service, the medical records consistently indicate that he injured his back in a post-service work accident. During the December 1998 treatment, he stated that he injured his back just months prior. See White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding that lay statements made for purposes of medical treatment may be afforded greater probative value because there is a motive to tell the truth to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting the enhanced probative value of contemporaneous evidence). Further, his May 2011 application for Social Security Administration benefits specifically noted that he injured his back after leaving service. Consideration has been given to the Veteran's contentions that his post-service back injury was related to an initial back injury/disability from service. As a lay person, he is competent to provide testimony or statements relating to symptoms he has personally experienced, but he is not competent to establish that which would require specialized knowledge or training. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). With no demonstrated specialized knowledge pertaining to the etiology of musculoskeletal disabilities, his opinion may not be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the April 2015 VA examiner, who reviewed the Veteran's claims file, took a history from the Veteran, and examined the Veteran, found that the Veteran's back disabilities are less likely than not related to service. The Board finds the VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms, and examined the Veteran before rendering the medical opinion. Also, the Board finds that the examiner based the opinion on an accurate chronology of the Veteran's lumbar spine pathology (i.e. that shown by the medical evidence). In sum, there is no competent or credible evidence of a back disability in service, no credible evidence of arthritis of the spine for over a year after service discharge, and no competent evidence linking the disabilities to service. The preponderance of the evidence is against the claims, and service connection is denied. The benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs