Citation Nr: 18148031 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-40 580 DATE: November 6, 2018 ORDER Entitlement to service connection for a lumbar strain is denied. FINDING OF FACT The competent and credible evidence, both lay and medical, indicates that the Veteran’s currently diagnosed lumbar strain was not incurred in-service and is not otherwise causally or etiologically related to it. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to May 1986. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). The Veteran asserts that his currently diagnosed lumbar strain incurred in-service and has been continuous since service. The Veteran has a current diagnosis of a lumbar strain. See e.g., June 2017 VA examination report. After a careful review of all the evidence, the Board finds that the weight of the lay and medical evidence of record demonstrates that the current lumbar strain was not incurred in service and is not causally or etiologically related to it. A review of the Veteran’s service treatment records (STRs) showed that he complained of back pain in February 1986. The chief complaint was “pulled muscle,” after he strained his back during physical training three-days earlier, and the assessment was muscle strain. There were no additional complaints or treatments related to the Veteran’s back disability until his medical discharge as a result of multiple foot problems. Immediately following his discharge, in June 1986, the Veteran filed a claim for compensation for bilateral ankles, legs, and feet disabilities, but did not mention any symptoms relating to the spine. Subsequently, during a July 1986 VA examination, which included orthopedic examination for the Veteran’s lower extremities complaints, he did not mention any back injury or reported any back pain. After the Board denied his claim for bilateral foot disability in October 1987, the Veteran filed a new claim for compensation in July 2005 for legs and feet disabilities, but again did not mention any back injury. It was not until July 2016 that the Veteran filed a claim for compensation for a lumbar spine injury. In support of his claim, the Veteran submitted private treatment records. Treatment records dated in March 2000 contained MRI of the thoracic spine due to history of back pain, the impression showed no evidence of focal thoracic lesion and no evidence of spinal cord impingement, and concluded that this was a negative study. Additional treatment records dated in December 2002 from Columbus Country Hospital Emergency Physician Record showed complaints of lower back pain that stated after an incident related to slipping on ice. It was further noted that the Veteran reported back pain that had started two days earlier, and the medical professional circled “possibly” to the question as to whether there was a recent injury. The clinical impression was acute myofascial strain. Subsequent treatment records dated in July 2015 showed complaints of low back pain. X-rays of the lumbar spine revealed mild spondylosis, early facet arthrosis, but no other gross evidence of bone or joint pathology. The Veteran reported that the pain stated two days earlier due to unknown cause after he picked up two pair of pants. In support of his claim, the Veteran submitted a “buddy statement” from his landlord, who indicated that as part of their rental agreement, the Veteran was provided with a mower and fuel to mow both his lawn and that of the landlord on a weekly basis. The landlord indicated that, on multiple occasions, it was necessary to hire someone else to mow the lawns due to the pain and swelling of the Veteran’s back. The landlord further stated that, in July 2015, the Veteran suffered a ruptured disc along with his everyday pains, and as a result was unable to mow the lawns for the reminder of the year. In his July 2016 notice of disagreement, the Veteran indicated that he hurt his low back in-service in February 1986, which resulted in pain that limited him ever since. He further stated that he was seen by a private doctor and a chiropractor for several years right after discharge, but these records had been destroyed. He indicated that he had to be very careful ever since his injury of how he turned, bent, or leaned, in order to avoid a flare-up. He concluded that he enclosed treatments from 2000, 2002, and 2015, but despite having “many more records” the doctor’s offices stated that they have been destroyed. The Veteran underwent a VA examination in June 2017, at which time the examiner confirmed a diagnosis of a lumbar strain, indicating that the onset date was in 2002. The examiner noted that the Veteran reported the onset of his back pain was in 1985, with intermittent pain since his service, and occasional flare-ups. The examiner opined that the currently diagnosed back strain was less likely than not related to service. The examiner explained that despite the Veteran’s assertions that his back hurt continuously since service, this was not supported by the medical evidence, which did not show any treatment for lumbar spine complaints prior to 2002, and as such, there was no evidence to support chronicity. Based on the foregoing, the Board finds that service connection for a lumbar strain is not warranted. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran’s recent statements reporting a long history of symptoms of the claimed disability are contradicted by past records in which he appears to have reported all his existing medical conditions, specifically orthopedic problems to his feet and ankles, without mentioning any problems related to his low back. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). Further, despite receiving treatment for various orthopedic problems post-service, it was not until 2000 when the Veteran complained of thoracic spine pain, and not until 2002, that he complained of lumbar spine pain, approximately 14-years after service. This long period without problems weighs against the claim. Based upon the language and context of the medical records, the Board finds that the Veteran was reporting all the disabilities/medical conditions and symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of low back pain prior to 2000, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. Furthermore, while he reported that he had other treatment, but records were destroyed, at no point he identified any outstanding treatment records. Moreover, even from 2000, other than scattered treatment in 2002 and then again in 2015 after he suffered a ruptured disc unrelated to his active duty service, there is no evidence of continuous treatment for back pain. Notably, during these documented treatments, neither the Veteran nor the treating medical professional made any reference to his pulled muscle in-service. Here, the Board is not only relying on the absence of evidence, but also on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran, as well as contemporaneous medical records that specifically show injuries sustained as a result of a raptured disc, as noted by his landlord. To the extent that the Veteran now asserts that his chronic lumbar strain developed during active service, the Board finds that the current assertions made for VA compensation purposes are not credible, because they are contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran’s own statements post-service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). In addition, the U.S. Court of Appeals for Veterans Claims, in Savage v. Gober, 10 Vet. App. 488, 496-97 (1997), agreed that in a case where the Veteran failed to present medical nexus evidence relating currently diagnosed disability to in-service injury along with lack of evidence of treatments may bear on the credibility of the evidence of continuity. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). However, in the present case, the Veteran’s statements do not reflect merely slight inconsistencies on peripheral matters, but go to the heart of the matter. Given that they are inconsistent and contradicted by the evidence of record, the Board cannot rely on them to establish the onset of the disability. Although the Veteran is competent to report symptoms of back pain, he is not competent to offer an opinion as to the etiology of his lumbar strain, which involves making findings based primarily on medical knowledge of musculoskeletal disabilities. Under the facts of this case, the Veteran is not shown to possess the requisite medical expertise to render a competent medical opinion regarding the relationship between the current lumbar strain and active service. Furthermore, the letter authored by the Veteran’s landlord does not help him with establishing a nexus, but to the contrary, is evidence against the claim, showing that the Veteran’s most recent treatment for back pain in July 2015 was the result of a raptured disc unrelated to his ten months of active duty service. Moreover, the landlord made no references to back pain the existed since service, but only observed the Veteran’s back pain in what appeared to be recent years. For these reasons, the Board finds that the evidence weighs against the claim of service connection for lumbar strain and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel