Citation Nr: 1752992 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-07 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to December 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction in this matter was subsequently transferred to the RO in Indianapolis, Indiana. In November 2014, the Board denied the Veteran's claim of service connection for a low back disability, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2016, the Court granted a Joint Motion for Remand and remanded a portion of the November 2014 Board decision denying service connection for the low back disability to the Board for action consistent with the January 2016 Court order. After receiving the case from the Court in May 2016, the Board remanded it to the RO for further development. Following the issuance of a July 2016 supplemental statement of the case, the matter was returned to the Board for its adjudication. Upon receipt of the case in March 2017, the Board sought out an independent medical opinion from a qualified medical treatment provider at the Veterans Health Administration (VHA). That opinion was obtained in June 2017. The Veteran testified at a videoconference hearing before the undersigned veterans law judge (VLJ) in January 2013. A transcript of that hearing is of record. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran's low back disability is attributable to any incident of service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, and in regards to those issues not being remanded, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Factual Background and Analysis The Veteran contends that his low back disability, currently diagnosed as bilateral L5 pars defects with grade I anterolisthesis, L5 on S1, is related to his service, to specifically include his repeated lifting and carrying of heavy equipment while training as an infantryman beginning in 1986. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran is entitled to service connection for a low back disability. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). A review of the Veteran's service treatment records reveals no specific complaints of or treatment for symptoms of a low back disability. Records do show that the Veteran was involved in a motor vehicle accident in February 1984, but subsequent treatment records indicate that the Veteran did not complain of any low back pain associated with the motor vehicle accident. A June 1988 separation examination and corresponding report of medical history show that the Veteran was evaluated as and personally reported having no problems with his low back. An August 1988 medical discharge report and evaluation indicates that the Veteran was granted a medical discharge due to diagnoses of bilateral cavus feet, cockup-deformity of the little toes, and bilateral Haglund's deformity. No mention was made as part of these proceedings of any low back pain. A review of post-service treatment records shows that the Veteran complained of neck pain on a September 1992 VA examination related to the February 1984 motor vehicle accident but did not state that he had any low back pain at the time. Thereafter, on an October 1996 VA examination, he reported that he did not have any medical problems other than foot pain which restricted his ability to stand and walk for long periods of time. Available VA treatment records show that the Veteran was complaining of and had been diagnosed with degenerative joint disease of the low back associated with bilateral knee and foot pain as early as October 2008. A February 2010 MRI of the lumbar spine showed mild disc degeneration, mild anterolisthesis related to bilateral chronic par interarticularis defects, and diffuse disc bulge with no significant spinal stenosis. Also in February 2010, the Veteran reported that his chronic low back pain had increased in severity over the past six months. During a January 2013 hearing before the Board, the Veteran asserted that he began experiencing low back pain in 1986 that he attributed to carrying a 65 to 70 pound rucksack as well as a 23 pound firearm while hiking long distances during his training to become an infantryman in service. He acknowledged that he did not seek treatment for symptoms of a low back disability in service, and that he first sought treatment for low back pain at the Indiana University medical center in either 1992 or 1993. According to the Veteran he was told to pursue physical therapy to help alleviate his pain at that time and he was never told by any of his treating physicians, either in 1992 or 1993 when he initially sought treatment or at any time thereafter, that his low back disability was related to service. The Veteran was afforded a VA examination in July 2012, during which he reported that he worked as a professional racing mechanic from 1994 to 2001 but stopped due to his neck and back pain. After a physical examination and a review of the claims file, the July 2012 VA examiner opined that it was less likely than not that the low back disability was incurred in or otherwise attributable to service. In support thereof, the examiner focused on the lack of complaints in service and the absence of documented post-service complaints of low back pain until 2008. The Veteran was afforded a new VA examination in June 2016, during which he reported that his back pain started in 1986 or 1987. He also acknowledged that he did not know who first treated the back pain or when he first received treatment. After a physical examination and a review of the claims file, the June 2016 VA examiner opined that it was less likely than not that the low back disability was incurred in or otherwise attributable to service. In support thereof, the examiner focused on the lack of consistent reporting of symptoms following service and the absence of any documentation of a low back disability while in service. Furthermore, the June 2016 examiner found that the mechanism of the motor vehicle accident injury was less likely as not the cause of the condition. Pursuant to the Board's request for an independent medical opinion, a certified orthopedic surgeon with VHA submitted an opinion as to the etiology of the low back disorder in June 2017. After considering the evidence set out in the Board's request and thoroughly reviewing the claims file, the surgeon opined that it was less likely than not that the low back disability was related to service. In support thereof, the examiner noted the lack of any complaints of or treatment for symptoms of a low back disability while on service, despite several opportunities to do so during service at any point when the Veteran was examined. The surgeon also highlighted the fact that the Veteran stated on the February 2010 VA examination that his low back pain began in 2008. He acknowledged the diagnoses of mild degenerative disc disease at L4-5 and L5-S1, chronic bilateral pars defects at L5 with mild grade 1 anterolisthesis at L5-S1, and degenerative changes at the bilateral sacro-iliac joints on the February 2010 examination; however, he found that such diagnoses suggested a spontaneously occurring, progressively deteriorating degenerative condition rather than a condition that could be traced to any one initiating cause. Accordingly, the surgeon found it less likely than not that the low back condition diagnosed on the February 2010 VA examination and treated ever since was attributable to in-service lifting and carrying of heavy equipment for extended marches over a period of several months. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a finding that service connection is warranted for a low back disability. Although the Board acknowledges that the Veteran was involved in a motor vehicle accident in 1984 while in service, none of the treatment records documenting his recovery from his injuries indicates that he ever complained of low back pain or any other symptoms potentially attributable to a low back disability. Furthermore, at no point during his service, to especially include his discharge examination, did he ever report experiencing symptoms of a low back disability or receive a diagnosis for such. As a layperson, the Veteran is competent to describe the symptoms of his cervical spine disorder and when he experienced those symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). That being said, there is no evidence in the record which indicates that he is competent enough through training or credentials to conclude that his low back disability was incurred in service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). That type of medical determination is made through the use of clinical evaluations by a medical professional with the specialized education, training, or experience to offer an opinion regarding the etiology of a disease. The Veteran's assertions must be considered in light of the medical opinions of record. The Veteran has never submitted a statement from a medical professional in support of his contention that he developed a low back disability during service, and the claims file is absent any documentation of the Veteran complaining of or being treated for symptoms of a low back disability until October 2008, nearly 20 years after service. On other hand, the Veteran has been evaluated by numerous VA medical examiners as well as an independent orthopedic surgeon, all of whom have concluded that it was less likely than not that the Veteran incurred a low back disability while in service or that his later development of a low back disability was attributable to service. Each medical professional who opined as to the etiology of the low back disability highlighted the lack of complaints of and treatment for symptoms of a low back disability in service as well as the temporal proximity between discharge and the first documentation of treatment for a low back disability in October 2008. Furthermore, the June 2016 VA examiner and the VHA surgeon discussed that the mechanisms underlying the Veteran's currently diagnosed low back disability suggested a progressive degenerative etiology rather than being attributable to any one cause in service. Finally, the examiners each interviewed the Veteran and took into consideration his lay testimony regarding his history of experiencing symptoms of a low back disability, and the VHA surgeon had the Veteran's lay testimony available to him when he set forth his opinion. As such, the Board finds the opinions of the VHA surgeon and the VA examiners to be highly probative of the issue at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a VA medical examiner's opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone). In summation, the service treatment records are absent any reported symptoms of a low back disability, and the claims file does not contain any documented complaints of symptoms until 2008. Although the Veteran has repeatedly asserted that he incurred a low back disability in service that has continued to this day, the lack of medical evidence to support this assertion makes his statements far less probative than those of the VA examiners, as well as the VHA surgeon, who each found the opposite. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding that the Board can "weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Accordingly, the Board finds that the preponderance of the evidence is against a grant of service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a). The Veteran may still be entitled to service connection if all of the evidence establishes that the low back disability is otherwise attributable to service. 38 C.F.R. § 3.303(d). Here, however, there is no objective evidence of incurrence in service, and there is nearly a 20 year gap between discharge and the diagnosis of degenerative joint disease in 2008. The Board acknowledges that the Veteran has attested to seeking treatment for low back pain in 1992 or 1993, only a few years after his discharge, but without any documentation of said treatment it is impossible to evaluate the particulars of said treatment and whether the Veteran's low back pain was formally diagnosed and if so, whether it was attributed to his service by any of the Veteran's treating physicians at the time. The Veteran certainly has not stated as much, and so the Board is only aware that the Veteran was formally diagnosed with degenerative joint disease of the low back at some point in 2008, after which the Veteran sought continual treatment for his symptoms up until the present day. Taken together, the opinions of the VA examiners and the VHA surgeon along with the lack of any objective evidence showing that symptoms of the low back disability manifested before October 2008 far outweigh the Veteran's assertions that his low back disability is the result of his carrying heavy loads on his back in service. Thus, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's low back disability is otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a low back disability under 38 C.F.R. §§ 3.303(d) is denied, and as such the Veteran's claim of service connection for a low back disability in total must be denied. In summary, as the preponderance of the evidence is against the Veteran's service connection claim, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs