Citation Nr: 1757776 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-19 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a January 2015 video hearing. A transcript of the hearing is of record. In June and December 2015, the Board remanded the claim for further development. In its June 2015 decision, the Board concluded that new and material evidence had been received and re-opened the claim for service connection for a low back condition. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a low back condition that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection for the Veteran's low back condition is not warranted. 38 U.S.C. § 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in March 2009. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of the claim. That duty includes assisting the Veteran in the procurement of service treatment records (STR) and other pertinent records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs, private treatment records, relevant VA medical records. In October 2015, the Veteran was afforded a VA medical. A supplemental opinion was obtained in January 2016. The Board finds that taken as a whole, the opinions provided were thorough and fully adequate. II. Stegall Compliance The Board finds there has been substantial compliance with its June and December 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). The Veteran contends that his low back condition had its onset in-service and has continued since. See Statement in Support of Claim entered in VBMS in February 2009. The Veteran has a current diagnosis of chronic lumbar strain with degenerative changes. See VA Examination entered in VBMS October 2015. As such, element (1) under Shedden is met. The Veteran has asserted that while he was stationed in Germany, he fell from a moving train injuring his lower back. See, e.g., Statement in Support of Claim entered in VBMS in February 2009, Correspondence entered in VBMS in July 2011. Thus, the second Shedden element is satisfied. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that a low back condition is etiologically related to service. Therefore, the third element under Shedden is not met. The Board observes that arthritis was not manifested during service or within one year of the Veteran's separation from active duty in December 1969. Accordingly, service connection for arthritis on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran was treated for an injury that occurred when he fell/jumped from the moving train. See STR entered in VBMS in August 2014, page 3. However, STRs do not document any complaints, diagnosis, or treatment of a low back condition. See id. at 3 and 7. Additionally, upon discharge, the medical examiner found the Veteran's spine and musculoskeletal to be clinically normal. Id. at 11. In September 2003, the Veteran had an initial evaluation for an on-the-job injury which caused lower back pain. See Medical Treatment Record-Non-Government Facility entered in VBMS in April 2009 (SMS-310125961.PDF) page 19. The Veteran stated that he was unloading, a large, heavy plate of glass. He experienced an acute onset of pain in his low back. As soon as he sat down, he realized that he had severe continuous pain in the low back. He finished his delivery route, delivering heavy panels of glass. See id. at 36. The Veteran was diagnosed with a lumbar strain injury, degenerative disc disease of the spine. Id. at 22. In September 2004, the Veteran was evaluated by an orthopedic surgeon and neurologist. The examiners diagnosed the Veteran with L-5 sprain/strain syndrome due to the August 2003 injury. They stated that there were multilevel degenerative changes of the lumbar spine with a herniated disc at L5-S1. The examiners stated that these changes were probably pre-existent to and not permanently aggravated by the August 2003 industrial injury. They further stated that the Veteran's low back condition was due to the natural progression of the degenerative changes at multiple levels of his lumbar spine and not due to the industrial injury under study. See Medical Treatment Record-Non-Government Facility entered in VBMS in April 2009 (SMS-310125941.PDF), page 13. In October 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his low back disability. The examiner reviewed the Veteran's file and performed an in-person examination. The Veteran stated that the back problems began at work in 2003 when he lifted a heavy piece of glass. He denied any significant back problems prior to the injury. The examiner confirmed the Veteran's chronic lumbosacral strain with degenerative changes diagnosis. The examiner opined that it is less likely as not that the Veteran's low back and spinal condition was incurred in or otherwise related to his active military service, to include a February 1968 in-service train accident. The examiner reviewed the Veteran's workman's comp notes and noted that on multiple occasions, the Veteran denied any prior problems with his back. The workman's compensation medical evaluation notes stated that the Veteran's back condition was "due to the natural progression of the degenerative changes at multiple levels of his lumbar spine and not due to the industrial injury under study." The VA examiner further stated that the worker's compensation examiners did not suggest or opine that the low back condition was due to any specific prior injury. MRI findings of degenerative changes and disk pathology are quite common as one ages even in asymptomatic patients, see reference below. The Veteran's MRI and X-ray findings were consistent with a natural degenerative process and not a single traumatic injury. He also had no symptoms related to his back until lifting a heavy object at work in 2003 which the Veteran corroborated at the VA examination and also by the workman's compensation notes from 2003. STRs were negative for complaints of a back condition, and the Veteran never sought treatment for a back condition until 2003. In a January 2016 addendum opinion, the examiner stated that it is less likely as not that the Veteran suffered mild paracentral disc herniation as a result of his service. The examiner stated that the literature shows that abnormal MRI findings, including mild paracentral disc herniation as noted in the 2003 treatment note are quite common and do not always correlate with any pathologic symptomatic condition. See S.D. Boden; D.O. Davis; T.S. Dina; N.J. Patronas; S W Wiesel J Bone Joint Surg Am, Abnormal Magnetic-Resonance Scans of the Lumbar Spine in Asymptomatic Subjects. A Prospective Investigation, (1990 Mar; 72 (3): 403-408), http://dx.doi.org/. The examiner further stated that the worker's compensation medical examiner felt that the Veteran's back condition was "due to the natural progression of the degenerative changes at multiple levels of his lumbar spine and not due to the industrial injury under study." The worker's compensation examiners did not suggest or opine that the back condition was due to any specific prior injury. If the mild paracentral disc herniation was a result of falling off a train in 1968, it would have caused him pain at that time, or soon after and also caused symptoms of radiculopathy. However prior to the worker's compensation injury, the Veteran denied any symptoms of a back condition or radiculopathy. The Board finds the 2015 VA examiner's opinions to be of great probative weight as the opinions were based on history from the Veteran, a thorough examination, and included references to pertinent evidence of record. The Board has considered the lay statements of the Veteran along with his buddy statement asserting that falling from the train during active duty service caused his low back condition. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, a causal relationship between the low back condition and the fall from the train is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In January 2015, the Veteran testified at a Board hearing, regarding the onset of his low back condition. The Veteran stated that after falling/jumping from the train, he felt like he was hit by a truck. See Correspondence entered in VBMS in January 2015 pages 4, 8. The Veteran's STR does not show any treatment for the low back injury but sought treatment for his heel. The Board finds that, in light of the fact that the Veteran did received treatment for his heel, see STR entered in VBMS in August 2014 page 3, it would be reasonable to presume that he would have sought treatment for his low back condition as well. Therefore, in the absence of such notations of treatment, it is reasonable to conclude that the Veteran did not suffer from any event, injury, or disease related to his low back. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). Also, post-service treatment records indicate complaints of back pain starting from August 29, 2003. See Medical Treatment Record-Non-Government Facility entered in VBMS in April 2009 (SMS-310125941.PDF) page 6. The passage of approximately three decades between discharge from active service and the lack of medical documentation of his low back condition, while not conclusive, is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Additionally, the Veteran has not submitted competent nexus evidence contrary to the VA examiner's opinion or other evidence of record. 38 U.S.C. § 5107(a) (claimant bears responsibility to support a claim for VA benefits). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a low back is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a low back condition is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs