Citation Nr: 1800729 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-17 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to February 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In October 2015 and May 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's low back disability was not incurred in military service. CONCLUSION OF LAW The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has not raised any 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 Veteran asserts that he has a current low back disability as a result of his military service. Specifically, he contends that he hurt his back while aboard ship and possibly during boot camp as well. The Board notes the Veteran has asserted that besides the in-service injuries causing his disability, he also asserts inadequate treatment by service medical personnel after the injuries occurred. Specifically, he asserts the service medical providers should have performed additional diagnostic work-up and, had they done so, the Veteran's symptoms would have been treated properly without a resulting chronic disability. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has been diagnosed with degenerative changes (arthritis) of the lumbar spine, as well as lumbar spondylosis and disc herniation. Thus, the remaining question is whether a current low back disability is related to the Veteran's military service. Service treatment records reflect in December 1981, the Veteran sought treatment after he had been attacked by the night before. He complained of a sore head and face with general lumps and bruises. There is no indication the back was injured. In October 1982, the Veteran complained of back pain. He reported the pain started spontaneously while sleeping. Another note indicated he had been sleeping when a sudden noise awoken him and he wrenched his back, causing pain with deep breaths or neck motion. The corpsman did not note any abnormalities. The physician elicited mild tenderness in the T4-T6 level. The diagnosis was a mild back strain and his condition was stable upon discharge. The spine was normal in the February 1983 separation examination. Arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2017). VA treatment records reflect that from October 1999 to April 2004, the Veteran would answer "no" or complain of pain in areas other than the low back when asked if he was in pain. The first low back pain complaints occurred in October 2004. The Veteran stated the constant sharp back pain had its onset one week earlier after playing tackle football. In August 2005, the Veteran reported zero pain and the back pain had resolved. The next complaint of back pain occurred in November 2006 again after playing football. The Board notes from this point forward, the Veteran has had complaints of low back pain. In May 2007, he reported the onset of the back pain occurring two years earlier. In September 2007, the Veteran sought treatment for chronic low back pain. He gave a history of the onset of pain while using a chainsaw. The pain had been present 8 to 12 months. The Veteran was able to exercise with knee bends and pushups. He worked laying grout and tile, which required him to be on his feet all day. In December 2007, the Veteran reported to a Social Security Administration medical evaluator that after he was hit by a car as a pedestrian, his back was injured. In August 2008, another Social Security Administration medical evaluator noted the Veteran developed low back pain while lifting tiles at work but did not pay attention until the pain did not go away. The Veteran was afforded a VA examination in December 2011, stating that in April 1982, he was cleaning the bulk head of the ship and lifted a drill, which significantly strained his lower back. He was diagnosed with low back strain at the military medical clinic. Since that incident, he reports experiencing constant pain in the lower back. X-rays showed degenerative arthritis. The VA examiner diagnosed lumbar spine degenerative joint disease. The examiner concluded that the Veteran's currently diagnosed low back disability is less likely than not related to military service, noting that the military records documented a history of mid back strain and pain involving the neck to mid back. There was no mention in the records of injury or pain documented in the lower back. As such, the current diagnosis, lumbar spine degenerative joint disease, e.g., a low back disorder, was unlikely related to the reported event. The VA examiner stated that no clear medical relationship can be made between a history of mid back strain in the 1980s and a current diagnosis of lumbar degenerative joint disease 30 years later. In February 2014, the Veteran was noted to be lifting weights, including weights up to 300 pounds. The Veteran testified that in service that he was on ship and awoke with excruciating pain in his back. He was helped to the infirmary and X-rays were taken. The medical provider said something about his lumbar which the Veteran did not understand. The provider then said it could be a strain. The Veteran kept having pain and they gave him pain pills. He later had to use a jackhammer which caused him to feel pain. After service, the Veteran noticed the pain continued to the present. He has seen various medical providers but not until a magnetic resonance imaging (MRI) was performed at a university hospital did his medical providers find the medical cause of his problem. The Veteran has also reported he is receiving Social Security Administration benefits, asserting his back is a reason he is too disabled to work. The Social Security Administration records, however, reveal that the administrative law judge found the Veteran disabled due to degenerative joint disease of the knees, residuals from a tibia fracture, hepatitis C, hypertension, and diabetes. The decision does not mention any low back problem. In July 2016, another VA examiner reviewed the evidence and concluded the low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran reporting upper back pain in October 1982 after being startled awake, with tenderness noted in T4-6, the upper thoracic area. This was diagnosed as back strain and no chronicity of this condition (e.g., complaints, diagnoses, or treatment) is noted in the subsequent treatment records including the February 1983 discharge physical, which specifically noted no lower back abnormality. The examiner noted he also reviewed the Veteran's lay statements of lower back pain in service with severe persistent lower back pain after service. The examiner also noted subsequent medical records, such as the Social Security Administration records documenting the Veteran's reports of lower back injury lifting tiles at work and being hit by a car as a pedestrian. No report of injury in service is noted in any of the Social Security Administration documents. The examiner also noted VA treatment medical records first reporting lower back pain in October 2004 - one week of pain after playing tackle football. The Veteran was re-evaluated for lower back pain in March 2007, which the Veteran attributed to work as tile layer, carrying heavy loads and bending down to lay tiles. Again, no in-service injury was reported. The VA examiner reasoned that the Veteran's only noted back injury in service involved the mid thoracic spine (T4-6); not the lumbar spine, and there is no evidence or plausible etiology for involvement of the lumbar spine as it was not reported at the time injury or at the discharge physical. The examiner's review of the service treatment records did not establish any limitation to access to care or inability to report any injury/illness. Instead, the examiner found it significant that the Veteran reported for treatment more than 30 times in a year without mentioning his lower back. The self-limited upper back condition noted in a single visit in October 1982 was without chronicity or residual according to the examiner. Moreover, the Veteran had multiple lower back injuries after service documented in Social Security Administration records, private medical records, and VA records including a pedestrian/motor vehicle accident injury to the lower back, recreational injuries, and a lifting injury to the lower back as floor specialist. In sum, the VA examiner concluded the lumbar spine disc condition noted on MRI corresponds with these post-service lower back injuries but not with any service-related injury documented in service or reported in medical records between discharge in 1983 and 2005. The 2011 and 2016 VA examiners were asked to address any relationship between the in-service back complaint and the current back disability. They have concluded there is no relationship between the Veteran's acute upper back injury in 1982 and his current low back disability, which more likely resulted from work and various post-service events such as playing football. There is no medical evidence in significant conflict with the opinions of the VA examiners. Thus, the most probative medical evidence is against the claim. As noted, the Veteran attributes his current condition to service. What he views as related, ongoing events of back pain after service, the medical experts have concluded are independent of the service incident and alone are the cause of his low back disability. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing back pain since service. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a low back disability or as to the etiology of a low back disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current low back disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In any event, the Board finds the medical opinions more probative than the Veteran's lay statements as the opinions were offered by medical professionals after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of back pain, and the opinions are supported by clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has a current low back disability that was incurred in service. Thus, the claim for service connection is denied. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs