Citation Nr: 18140872 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 11-04 439 DATE: ORDER Entitlement to service connection for a lumbosacral strain is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbosacral strain began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a lumbosacral strain are not met. 38 U.S.C. §§ 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to September 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision. In October 2017, the Board remanded the issue on appeal for further development. 1. Entitlement to service connection for a lumbosacral strain. Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Special regulations also provide that VA will pay compensation for Persian Gulf veterans who later manifest certain qualifying chronic disabilities. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a). To obtain service connection for a qualifying chronic disability, the evidence must show: (1) that the Veteran is a Persian Gulf veteran; (2) who exhibits objective indications of a qualifying chronic disability; (3) that manifests either during active duty in the Southwest Asia theater, or to a degree of 10 percent or more prior to December 31, 2021; and (4) that cannot be attributed to any known clinical diagnosis by history, examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is a veteran who served on active duty in the Southwest Asia theater of operation during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operation refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). A qualifying chronic disability is defined as an undiagnosed illness or a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a)(2). A medically unexplained chronic multisymptom illness is a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran asserts that he has a lumbosacral strain that began in service or because of his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of a lumbosacral strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The March 2018 VA examiner opined that the Veteran’s current lumbosacral strain was not at least as likely as not (less than a 50 percent probability) related to an in-service injury, event, or disease. The examiner explained that the Veteran’s service treatment records (STRs) showed no complaint, treatment, or diagnosis of a back injury, and that the first complaint of a back problem in the medical evidence of record did not appear until June 2009. At that time, the Veteran reported that his back pain had begun 2 years earlier, sometime in 2007. The examiner stated that “there [was] an absence of any other supporting evidence or documentation of a chronic and continuous pattern existence from service or the time of separation in 2005 until 2009.” The examiner also noted that there was no other evidence of a link between the Veteran’s condition and his service. While the Veteran is competent to report that he has lower back pain now which he never had prior to his service, as he does in his written statements to VA, the Board finds it noteworthy that he has also provided conflicting statements as to the onset and course of his lower back pain. In the statement the Veteran submitted along with his VA Form 9, substantive appeal, in February 2011, he did not describe any discrete injury in service or suggest that his lower back pain was the result of repeated stress during service. Instead, he stated that he started experiencing occasional lower back pain after returning from Iraq and now questions whether he might have hurt his back by lifting something and wonders why the pain is present. He also stated that after he returned from Iraq, he did not seek any medical treatment because this was roughly coincident with the end of his period of service, leaving him without sufficient time to seek treatment for the condition prior to his transition to civilian. At his April 2018 VA examination, however, the Veteran reported falling from a 10-foot tower from a jump during active fire. He stated that he jumped with full gear and had back pain, which lasted for several days, and that he sought medical attention after returning from deployment overseas. He also reported that he was not sure, but recalled seeking treatment at a VA medical center for his back in 2007. Finally, as was noted briefly above already, the Veteran’s VA treatment records show that in June 2009, he presented to the VA medical center for a primary care initial evaluation. At that time, he complained of low back pain and stiffness that had been present for 2 years. The above evidence shows that the Veteran’s explanation in his February 2011 correspondence of his pain beginning right after his return from Iraq conflicts with the statement he provided to his treatment provider in June 2009, where he dated the initial onset of his pain to 2007 (2 years prior to that visit). After reviewing these conflicting statements, the Board finds that the Veteran’s statement to his treatment provider is more credible than his subsequent report that he had back pain during service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate, and in this regard, statements made to treatment providers for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. It is especially significant to note that at the time of the June 2009 initial visit with his VA treatment provider, the Veteran had already filed his claim for compensation with VA one month earlier. Therefore, he would have been especially motivated to advise the treatment provider of the origins and onset of his back pain. Similarly, although the Veteran reported to the April 2018 VA examiner that he jumped from a tower in service, while wearing full gear, due to an active fire, he did not report to his June 2009 treatment provider that his back pain was the result of any in-service injury. Instead, as discussed above, he reported that the back pain began in approximately 2007. He also did not report any particular injury to his back in his February 2011 correspondence. Instead, he stated, “Some days I question myself trying to think if I could have hurt my back by lifting something or why the pain is there, but I just know that ever since I got back from Iraq is when I remember feeling this lower back pain.” This statement suggests that the Veteran had been actively thinking of possible etiologies for his back pain, but could not pinpoint any specific event. The Board finds these earlier statements more credible than his statement to the April 2018 VA examiner. As previously explained, statements made to treatment providers for purposes of diagnosis and treatment are deemed especially trustworthy. Furthermore, the Veteran’s February 2011 correspondence was submitted along with his substantive appeal, and certainly he would also be motivated at that time to recall an incident where he jumped from a tower, but instead made no references to such an incident in that statement. In conclusion, given the inconsistencies in the Veteran’s statements, the Board finds that his report about the onset of his condition right after his return from Iraq to be not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Although the Veteran believes his currently diagnosed lumbosacral strain is related to his service, the question of whether such a disability may be related to remote incidences in service is a matter more suited to medical expertise than a lay person’s knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1373 n. 4 (Fed. Cir. 2007). Establishing such a connection would require knowledge about various systems in the body, including muscle function and making an evaluation of whether they had, or would have had, an appropriate chance to heal effectively. Such knowledge is beyond the scope of an ordinary lay person. Consequently, the Board finds the April 2018 VA examiner’s opinion as to causation to be more probative than the Veteran’s lay assertion regarding causation. Importantly, there are no competent (medical) opinions to the contrary. Finally, the Board has considered whether to grant service connection under the regulations governing qualifying chronic illnesses for Persian Gulf Veterans. However, as explained by the March 2018 VA examiner, the Veteran’s lumbosacral strain is diagnosed and its etiology and pathophysiology are understood. The examiner provided the diagnosis of lumbosacral strain and explained that such a strain occurs by stretching the muscles too far, causing tiny tears in the tissue, weakening the muscles, which may make them unable to hold the bones of the spinal column in place correctly. The examiner also explained that in most cases of such an injury, the outcome is favorable and the condition is self-limiting. After explaining this diagnosis, etiology, and pathophysiology, the examiner stated that it was at least as likely as not (50 percent or greater probability) a disease with a clear and specific etiology and diagnosis, and that it was less likely than not (less than 50 percent probability) that this condition was related or caused by a specific exposure event experienced during service in Southwest Asia. As no other evidence appears in the record contradict this opinion, the Board finds that the evidence of record does not meet the criteria to establish service connection under the regulations governing qualifying chronic disabilities for Persian Gulf Veterans. Consequently, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel