Citation Nr: 1806168 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-01 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to August 1987, and had service in the Army National Guard from August 1988 to August 1994, and service in the Army Reserve from January 2000 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in November 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in March 2014 and November 2016, when it was remanded for further development, to include providing the Veteran with additional VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's back disability is not shown to have been incurred in or otherwise the result of his military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in July 2010. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. These include records from the Veteran's chiropractor and from his VA treatment. The Veteran has undergone VA examinations related to the disabilities on appeal. See VA examinations from November 2010, May 2014, and January 2017. There is no argument or indication that these examinations are inadequate. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's issues on appeal. As such, the Board will proceed with consideration of the Veteran's appeal. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran 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). All three elements must be established by competent and credible evidence in order that service connection may be granted. For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, including if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). Facts and Analysis The Veteran seeks service connection for a back disability which he asserts was incurred in service. He specifically described this in his claim as affecting his upper back on the right side as a result of an injury in 1986. (Application, 06/11/2010.) In his statement submitted in August 2010 the Veteran stated that his back injury incurred in Puerto Rico and exacerbated at Fort Snelling had given him trouble all his life. He was treated at Fort Snelling but was not X-rayed at that time; the provider indicated he would be recommended for a 20 percent disability rating. The Veteran's service treatment records show that he was treated for mid to lower back pain throughout 1987 which had been present for about 18 months to 2 years. (STR, 04/04/2014, p. 21; STR, 12/21/2015, p. 119.) Examination showed mild right parathoracic muscular tenderness and restriction of motion, with no evidence of spasm. His separation examination in August 1987 did not describe any pathology with respect to the Veteran's spine. At the time of the Veteran's enlistment in the Army National Guard in August 1988, on the questionnaire regarding medical history, he answered "No" to recurrent back pain, bone or joint deformity, and arthritis. (STR, 04/04/2014, p. 34.) At a physical in July 1992, the Veteran again answered "No" on the questionnaire to experiencing recurrent back pain, bone or joint deformity, and arthritis. (p. 48.) And in February 1994, the Veteran again answered "No" on the same questionnaire to the same questions. (p. 59.) Physical examinations conducted on those same dates showed no evidence of a back disability. Treatment records from VA show that the Veteran complained of left-sided low back pain in December 2005. (Medical Treatment, 06/11/2010, p. 57.) The pain was constant in nature, with no radiation, but subsided in intensity as the day progressed. Physical examination showed muscle spasms in the left lumbar paravertebral area, with no pinpoint tendencies and positive tenderness at the end point with flexion and rotation. A statement submitted by a friend of the Veteran in March 2009 attested that the Veteran had sustained an injury to his back in service on his second deployment to Puerto Rico. (Buddy Statement, 03/31/2009.) The friend described the Veteran as changing a tire on a 5 ton dump truck and hurting his back when he tried to lift the tire and the rim. A letter provided by the Veteran's treating chiropractor dated July 2010 noted that he had first presented for treatment for his back pain in April 2006. (Third Party Correspondence, 03/31/2009.) The provider stated the Veteran's moderately severe lower, middle, and upper back pain and neck pain had likely begun in service, based on the Veteran's reports, the recurrent nature of the symptoms, and the degree of degeneration in his spine. At the VA examination in November 2010 the Veteran reported back pain beginning in 1985, for which he was on bed rest for a week. (VA Exam, 11/04/2010, p. 6.) The Veteran reported that he was able to attend to the activities of daily living. He had worked as a drywall taper for 25 years and at the end of a day going up and down ladders and being on stilts hyperextending his neck, he would use a walking stick. After standing for more than 5 minutes he wanted to sit down because of back pain. He did not have any flare-ups. X-rays showed normal thoracic and cervical spine with the exception of mild degenerative disc disease at C5. The examiner offered the opinion that the Veteran's cervical and thoracic spine pain and disabilities were not the result of his service, to include back pain in service, but rather were attributable to his 25 year as a drywall taper working on ladders and stilts and hyperextending his neck. The examiner based this opinion on the Veteran's statements at the time he sought treatment for back pain in October 2004, at which time the Veteran related his pain to his work as a drywall taper. A letter from the Veteran's treating chiropractor in May 2012 stated that he had reviewed the Veteran's military treatment records. (Third Party Correspondence, 05/13/2011.) After reviewing the treatment records, the provider felt that the Veteran's current back disability (which was previously described in a prior letter) was at least as likely as not caused by military service. At the Board hearing in August 2012 the Veteran testified that he sustained a back injury in the Marine Corps and was seen numerous times by a corpsman and at hospital at Camp Lejeune. (Hearing Testimony, 08/30/2012, p. 2.) He was told that he had stretched and strained and torn some ligaments in the right side of his back and at the time of discharge he was advised to seek treatment at VA. He had experienced back symptoms again shortly after service separation which never went away, but he was young and didn't let it stand in his way. He had worked for many years as a drywall taper, a job which put a strain on his upper back, arms, and wrists. He described his current symptoms as tenderness and swelling on the right side, and stated that his chiropractor had told him his muscles were more developed on the right side of the back because the ligaments had been stretched in the injury in service and never gone back. He had been receiving chiropractic treatment and an MRI in August had shown bulging discs and arthritis and other damage on both sides of his neck and his upper back. He couldn't perform his job as a drywall taper and had given up his job doing so; instead, he was working as a home inspector. A letter from the Veteran's VA physician in August 2012 stated that the recent MRI had shown severe stenosis at C5-C6 on both sides and moderate stenosis on the left side at C3-4 and C4-5. (Correspondence, 10/01/2012.) The radiologist stated that this was a combination of bone thickening due to arthritis and disc displacement, which was likely the cause of his neck and shoulder pain. At the VA examination in May 2014 the Veteran reported he was treated for thoracic back pain with occasional muscle spasm during his military service. (C&P Exam, 05/22/2014, p. 2.) He reported an August 2012 MRI showed arthritis throughout his spine. He had symptoms including pain on his right side which was worsened by his current sedentary job. He dhad been unable to continue working as a drywall taper and was working as a home inspector. He stretched often and had relief from his pain from moving and exercising as well. He received chiropractic treatment once or twice a month which usually fixed the problem. The examiner offered the opinion that the Veteran's back disability was less likely than not related to his military service for all of the same reasons stated by the previous VA examiner. At the VA examination in January 2017, the examiner noted the Veteran's diagnoses of a right paraspinal muscle strain, degenerative disc disease at C6-C7, and spondylosis at L3-4, L4-5, and L5-S1. (C&P Exam, 01/25/2017, p. 2.) The Veteran stated that he did not have any problems with his back prior to service and that in service he had endured compression from routine helicopter landings and using large tools. He described his current symptoms as pain stiffness, swelling, and limitation of motion. He had flare-ups of pain daily which caused him to become extremely stiff and painful as a result of repeated use or inactivity. He was limited in his ability to lift, carry, or sit or stand for long periods of time. The examiner noted that arthritis had been shown on MRI in 2013. The Veteran had decreased his work hours and job duties over the preceding 10 to 15 years as a result of increasing pain and limitation of motion. He had decreased his hours to part-time and become an inde pent contractor because he was not able to keep up with the demands of employers. An X-ray of the thoracic spine was negative. (CAPRI, 05/21/2007.) The examiner did not provide any opinion as to the etiology of the Veteran's disability. A subsequent medical opinion, based on a complete review of the record in August 2017 described the Veteran as a competent and credible witness, particularly with respect to symptomatology and reports of injuries. The examiner noted the treatment of the Veteran's back pain in service, to include conservative care with exercises, over the counter pain medication, and warm moist heat. The examiner also noted records from enlistment in the Army National Guard in August 1933 in which the Veteran denied back pain, rheumatism, lameness, and joint deformity, and a report in July 1992 which also showed no subjective complaints or objective evidence of any back disability. A February 1994 report also contained denials of any symptoms of back pain or any evidence of a back disorder. In light of the records between separation from active duty service and onset of back pain in 2004, the examiner offered the opinion that the back problem in service was acute, transient and self-limited. As s a result, the examiner offered the opinion that the Veteran's current diagnosis of thoracic and/or lumbothoracic back strain or disability did not have onset in service. The examiner further noted the Veteran's reported statements linking his back pain to his job as a drywall taper. The examiner acknowledged that the lack of treatment between 1988 and 2004 was not, in itself, sufficient basis for a negative opinion, but concluded that the medical record supported a negative nexus opinion. The Veteran's representative submitted a brief in November 2017 with respect to this claim. (Appellate Brief, 11/21/2017.) The representative specifically asserted that the Veteran's service treatment records showed a history of 2 years of back pain, which was more consistent with a chronic condition rather than an acute condition. For this reason, the representative disagreed with the January 2017 VA examiner's opinion that the Veteran's back pain in service was acute. The Board has considered all of the evidence of record, to specifically include that set forth above, and finds that the preponderance of the evidence does not show that the Veteran's back disability was incurred in or is otherwise the result of service. The evidence does demonstrate that the Veteran had a chronic condition in service characterized by pain in the thoracic spine, particularly on the right side. As asserted by the Veteran's representative, the description of the Veteran's back pain as persisting for 2 years is more consistent with a chronic condition than with an acute condition. However, the presence of a chronic back problem in service is not sufficient for service connection. Evidence of continuity of symptomatology is also required. The Veteran has asserted that he had back pain which was continuous from his time in service until the present day. However, the evidence of record does not demonstrate such continuity. Specifically, the Veteran consistently denied any back problems during examinations for National Guard and Reserve service, for as long as 7 years after service separation, up through 1994. In addition, the record shows that the Veteran spent the 25 years between service and the filing of his claim working as a drywall taper, climbing ladders, walking on stilts, and hyperextending his spine. For these reasons, the Board finds the opinion of the January 2014 VA examiner, that the Veteran's back pain in service was transient and self-limited, to be persuasive. The Board has considered the opinion offered by the Veteran's chiropractor linking his back disability to his military service. However, the Board notes that the chiropractor does not address the records from the Veteran's Reserve and National Guard service showing no reports of back pain or disability for up to seven years following service separation, or the physical demands of the Veteran's civilian job. By not addressing this evidence, the opinion provided by the Veteran's chiropractor is lacking in critical rationale and fails to consider all of the factual information. Therefore, the Board assigns little evidentiary value to this opinion. For all of these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection and the benefit of the doubt standard does not apply. 38 U.S.C. § 5107(b). The claim is denied. ORDER Entitlement to service connection for a back disability is denied. ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs