Citation Nr: 18147727 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 11-32 734 DATE: November 6, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a back disability, to include degenerative joint disease and lumbar strain with pain, was incurred in or caused by an event or injury during service. CONCLUSION OF LAW The criteria for service connection for a back disability, to include degenerative joint disease and lumbar strain with pain, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from August 1989 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2014, July 2017, and April 2018. 1. Entitlement to service connection for a back disability is denied. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show: (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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for chronic diseases listed in 38 C.F.R. § 3.309(a) may also be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service (usually one year); or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113, 1131, 1133, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has mild degenerative joint disease in his lumbar spine which is a chronic disease under Section 3.309(a); thus, the chronic diseases presumption is applicable. Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Ultimately, it is the appellant’s burden “to present and support a claim for benefits under laws administered by the Secretary.” See 38 U.S.C. § 5107(a). In this case, the Veteran has a current disability to include degenerative joint disease and lumbar strain with pain. In his application for benefits dated May 2009, he claimed that he injured his back during road marches while wearing a 70-pound backpack. He reported having aches and pains then, and continued back problems ever since. He asserted that the condition worsened in 2001, causing him to seek treatment. In September 2017, the Veteran added that he also injured his back while riding in the back of a 5-ton truck that hit a bomb crater while doing more than 60 miles per hour. He was allegedly asleep at the time and awoke in mid-air falling onto his buttocks. After thoroughly reviewing the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s back disability began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report that he injured his back during service, his reports are not credible due to internal inconsistencies in his reports and inconsistencies with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza, 7 Vet. App. at 512. The Veteran’s service treatment records are silent for any complaints or treatment of a back condition despite lodging complaints and seeking treatment for other conditions. He also consistently denied any back problems on all service reports of medical examination and reports of medical history of record, including those during his period with the Army National Guard. See, e.g., STRs (Aug. 14, 1991) (denying any recurrent back pain or swollen or painful joints on separation report of medical history, but endorsing leg cramps and otherwise stating that he was in good health); id. (Nov. 2, 1996) (same but without endorsement of leg cramps). While seeking treatment for other conditions after service, the Veteran consistently denied any back problems or failed to report any longstanding back pain or injuries to his back, such as the incidents he reported to the VA. Indeed, during a comprehensive VA examination medical examination in March 1999, which was provided for VA disability compensation purposes, the Veteran did not report any back issues and the physical examination by the examiner demonstrated that his joints had full range of motion without any pain or discomfort. VAX (Mar. 2, 1999). The Veteran’s consistent denial of any back issues during multiple examinations over the course of a decade, including one provided for VA compensation purposes, combined with multiple examiners not finding any back issues, undermines his credibility and does not support a finding that the Veteran has a back condition that began in service, or that was caused by service. The Veteran’s statements are further undermined by his lengthy delay in filing for service connection for his back condition. He did not provide any explanation for not filing a claim for VA compensation for his back sooner than May 2009 if he believed the condition stemmed from service, particularly since he filed service connection claims for more than 12 other conditions between October 1991 (two months after discharge) and March 1999. Meanwhile, after the March 1999 examination, the Veteran sustained nonservice-related possible intercurrent causes of his current back disability, including falling from scaffolding in June 1999 (see Minneapolis VAMC Emergency Room report dated June 18, 1999), and an ATV accident reported in March 2009 in which he lost consciousness for an hour, id. (Mar. 26, 2009). Furthermore, the Veteran reported seeking treatment in 2001 for his worsening back condition, but there is no record of such treatment and the Veteran did not submit proof to the contrary. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). While the Veteran now contends that his back disability is related to service, he is not competent to provide a nexus opinion in this case as the evidence does not show that he has the proper education, training and expertise to be deemed competent to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, he has not submitted any medical evidence linking his current low back disability to service. See 38 U.S.C. § 5107(a). Given the above, the Board finds that the lay evidence regarding the back disability is not credible and is not entitled to any probative weight. See Caluza, 7 Vet. App. at 512. While the Board recognizes that it must ensure the adequacy of examinations when it undertakes to provide such, a discussion of the adequacy of the VA examination and medical opinions obtained during this appeal is unnecessary as they relied on the Veteran’s reported in-service injuries and lay statements which are not credible. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical evidence which relies on an inaccurate factual premise is not entitled to any probative weight). Pursuant to Bardwell v. Shinseki, 24 Vet. App. 36 (2010), where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required. Id. at 39. In this case, the Board has determined that the Veteran’s lay assertions of in-service injuries is not credible and that there is no other probative evidence of a back injury in service. The record does not   otherwise demonstrate an etiology to service. Consequently, another VA examination or opinion is not required and the appeal is denied. Bardwell, 24 Vet. App. at 39. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel