Citation Nr: 18149808 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-34 860 DATE: November 14, 2018 ORDER Entitlement to service connection for a lower back disorder is denied. FINDINGS OF FACT 1. The Veteran’s service treatment records (STRs) reveal that that shortly after entrance, the Veteran was treated for a lower back disorder. He had one additional episode of thoracic/chest pain which resolved. He reported recurrent back pain at separation but examination revealed normal findings. 2. He filed a claim for VA benefits in 1983 and did not mention back problems. When seen for various problems in September 2003, he did not complain of back problems. 3. Current back pathology is not related to any in-service event, injury or occurrence. Arthritis was first shown years post-service. CONCLUSION OF LAW 1. The criteria for Entitlement to service connection for a lower back disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty service from August 1978 to November 1983. The Veteran testified before the undersigned at a Board hearing in September 2017. A transcript is on file. Entitlement to service connection for a lower back disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, a Veteran 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—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Pursuant to 38 C.F.R. § 3.303(b) (2017), where a chronic disease is shown in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service, but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) (2017) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) (2012) or 38 C.F.R. § 3.309(a) (2017). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks to establish service connection for his lower back injury. He asserts that he injured his back in-service when tightening down a chain turnbuckle. The dispositive question is whether there is evidence indicating that the disability may be associated with an event, injury, or disease in service. Here, the Board finds the preponderance of the evidence is against the Veteran’s claim. March 1979 STRs reveal that the Veteran injured his back while tightening down a chain turnbuckle. He was diagnosed with a lumbar sprain at L3-L5. The Veteran was treated with physical therapy for his back and prescribed a period of rest. April 1979 STRs reveal that the Veteran reported still having back pain when running or performing push-ups. August 1983 STRs reveal that the Veteran reported falling backward and injuring his back and chest. The examiner diagnosed a tinder back between thoracic joints 10-12. October 1983 STRs reveal the Veteran underwent a separation examination prior to discharge provided a history of recurrent back pain. Normal findings were recorded on physical examination. The Veteran applied for VA compensation benefits shortly after discharge from service. He mentioned only foot problems, with no mention of recurrent back pain. When seen for medical treatment in September 2003, the record reveals that he reported several problems, but he did not mention recurrent or any back problems. Those findings are first made years later. In an October 2014 private examination, the Veteran underwent an MRI for his back and was diagnosed with pronounced lumbar lordosis with degenerative disc herniations at L5-S1, L1-L2, and T12-L1. In a February 2014 VA C&P back examination, the examiner diagnosed the Veteran with a thoracolumbar spine condition. Regarding the etiology of the Veteran’s back disorder, the examiner opined that due to a thirty-year gap in medical records for treatment of the Veteran’s back disorder it is less likely than not that his current back condition is the result of his military service. The examiner noted functional loss with less movement than normal, pain on movement, disturbance of locomotion. The examiner also noted no ankylosis, but did diagnose pain on movement, flare-ups, and tenderness. In a September 2017 hearing before the Board the Veteran asserted that his lower back disorder occurred in service when he was performing the duty of tightening down a chain turnbuckle. The Veteran asserts that he received medical treatment in-service repeatedly for his lower back disorder and was relieved from physical activity on several occasions due to pain. The Veteran also offered up evidence of private treatment records diagnosing a lower back disorder. He also testified that post-service he was not fully aware of his right to access VA health benefits and was not able to financially obtain private insurance benefits. The Veteran asserts that he turned to addictive illegal drugs for medicating his back pain after discharge from service. The Veteran asserts the above as the reason for his approximately thirty -year time gap after discharge before he sought medical treatment. Review of the record however, reveals that the Veteran was aware of the option of seeking VA compensation benefits shortly after separation as he applied for such benefits. Significantly he did not mention back problems at that time. Review of the bulk of the clinical evidence suggests that while the Veteran did have a back injury in service it resolved following treatment. Service treatment records not that he sustained subsequent injuries to a knee playing football, contraindicating that he was unable to do physical activity because of this back. Moreover, when he was seen for other treatment in September 2003, he listed multiple medical problems, but a back problem was not among those listed. The Board acknowledges the Veteran’s February 2014 VA examination opinion that the Veteran’s lower back disorder was not related to his time in-service. This finding appears consistent with the overall record. The Board finds that a preponderance of the evidence is against the claim. As such, the doctrine of reasonable doubt is not for application. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel