Citation Nr: 18145220 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-30 771 DATE: October 26, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran’s currently diagnosed back disability did not manifest within a year of service discharge, and has not been shown to be at least as likely as not causally related to his service or an incident of service origin, including to the claimed fall injuries in service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1953 to April 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. In March 2017, the Veteran presented testimony at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for a back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his current back condition is related to a back injury in service and he believes that he has had back problems ever since that time. During the March 2017 Board hearing, the Veteran testified that he had two falls during basic training, while marching over hills wearing full military gear. Then, he had two or three more falls when he fell off telephone poles while serving as a field wireman. He stated that after service, he went to see a doctor for his back condition and was given pain killers. 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 current diagnosis of osteoarthritis of the lumbar spine, and evidence shows that the Veteran served as a field wireman in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of osteoarthritis of the lumbar spine began during service, manifested within a year of service discharge, 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 medical evidence of record shows the Veteran was not diagnosed with osteoarthritis of the lumbar spine until October 2017, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain consistently since service, his statements are less than credible as they are inconsistent with the reported history of his back pain as reflected in his records of treatments throughout the years. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the first evidence of record showing his complaint of back pain is a June 1982 VA examination. Thereafter, an October 2007 private treatment record shows that the Veteran was evaluated for cervical thoracic spasms at which time his complaint was constant bilateral cervical and upper thoracic pain with some right lower back pain. He related that this pain began initially 4 years previously. Additionally, a May 2012 private treatment reflects that although the Veteran’s medical history was positive for osteoarthritis (with no indication of the joint affected by osteoarthritis), it was negative for chronic back pain. Based on the foregoing evidence, the Veteran’s back pain appears to have been not chronic but intermittent in nature. The Board finds that the Veteran’s statements made during his treatment sessions prior to the filing of this claim for service connection are more probative than his current assertions as they are contemporaneous with the time in question. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that statements made to physicians 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); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). The Veteran is also not competent to provide a diagnosis in this case or determine that his back pain symptoms were manifestations of osteoarthritis of the lumbar spine. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains somewhat conflicting medical opinions regarding whether the Veteran’s back disability is at least as likely as not related to an in-service injury, event, or disease, including the falls in service. An October 2017 VA examiner opined that the Veteran’s currently diagnosed back disability is not at least as likely as not related to an in-service injury, event, or disease, including the reported falls during service. The rationale was that the Veteran’s lumbar spine x-rays findings are most likely age-related and consistent with those of a person 87 year of age. Specifically, the x-rays showed moderate to severe L5-S1 degenerative discs disease, with no spondylolisthesis and no anterior wedge compression fractures of the lumbar vertebral bodies. He had moderate to severe posterior facet lower lumbar degenerative change and early bilateral sacroiliac joint osteoarthritis. The examiner reasoned that there is no indication that the changes shown on x-ray are traumatic in nature stemming from any particular incident or combination of incidents in service, and for any physician to state otherwise would be mere speculation. The examiner also noted that the Veteran’s statements were taken into account; however, the available evidence does not support such statements. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In support of his claim, the Veteran submitted letters from his private physicians. In a July 2014 letter, Dr. J.P. stated that he had been treating the Veteran for chronic lower back pain from 1987 to the present, and had been prescribing pain medication “for an injury sustained while working as a lineman in the Army.” It was noted the injury was from a fall while in the military in 1953. In a March 2017 letter, Dr. P. again indicated that he had been treating the Veteran with long term medications for chronic back pain since 1986 and that the Veteran reported his back pain was a result of an injury while he was in the military in 1953. In an August 2018 letter, another private physician, Dr. Y.J.L. stated that she has taken over treating the Veteran for chronic low back pain after the passing of Dr. P., who had treated the Veteran for “an injury sustained while working as a lineman in the Army,” that “[t]he injury was from a fall while in the military in 1953.” Both Drs. P. and L. opined that the Veteran’s chronic back pain was from a fall injury sustained while working as a lineman in service. However, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case. See Stefl, 21 Vet. App. at 124. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). These opinions are, therefore, less probative than the VA examiner’s opinion. There is no indication that the private physicians reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which the Board has found less than credible above. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the October 2017 VA examiner’s opinion. While the Veteran believes his osteoarthritis of the lumbar spine is related to an in-service injury, event, or disease, including the fall incidents in service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the pathological process within the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2017 VA examiner’s opinion. (Continued on the next page)   The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel