Citation Nr: 18150427 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-04 204A DATE: November 15, 2018 ORDER Entitlement to service connection for a back condition is denied. FINDING OF FACT The competent and credible evidence does not support a finding that the Veteran has a low back disability that is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5107 (b); 38 C.F.R. §§ 3.102; 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from September 1965 to September 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veteran’s law Judge; a copy of the transcript is of record. This matter was most recently before the Board in July 2018, at which time it was remanded for further development. The requested development was completed, and the case has been returned for appellate consideration. Entitlement to service connection for a back condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For chronic diseases listed in 38 C.F.R. § 3.309 (a), including arthritis, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 C.F.R. § 3.307 (a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within one year from the date of separation from service. As further discussed below, this presumption does not apply in this case as arthritis was not manifest until many years after service discharge. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Veteran asserts that he has a current back disability that is etiologically related to an in-service injury incurred during deployment to Vietnam when an explosion outside of his tent tossed him from his bunk. Private medical and VA treatment records associated with the Veteran’s claims file establish that he has been diagnosed with a current disability - lumbar degenerative joint disease. Therefore, as he meets the first criteria of service connection, the Board’s analysis will focus on the second and third elements of service connection—an in-service incurrence or aggravation of a disease or injury, and a nexus between the in-service incurrence and the Veteran’s current disability. The Veteran reports that during his Vietnam deployment, his living area came under attack from rocket grenades. One explosion purportedly sent the Veteran airborne, and he struck his low back as he landed, possibly on his footlocker or boots. The Veteran reports that he felt low back pain following the incident and subsequently went to sick call. The Veteran’s military personnel records and service treatment records (STRs) have been associated with the claims file and show the Veteran served in Vietnam from November 1966 to September 1967. A Defense Personnel Records Information Retrieval System response shows the Veteran’s compound “received seven rounds of 105mm fire within and around its perimeter” on July 31, 1967. Therefore, the Board finds the Veteran’s account concerning the circumstances of his purported in-service back injury generally credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) While STRs show the Veteran complained of sore muscles in his back in service, the treatment note is dated December 1965, prior to his Vietnam service. STRs are otherwise silent for any reports of or treatment for back pain. The Veteran did not report back pain during his separation examination, and his spine and musculoskeletal system were noted as normal on physical examination. Reserve STRs show the Veteran was seen for an “old injury” to the lumbosacral area in June 1968. A private medical treatment record from July 1968 shows the Veteran sought treatment for severe lumbar muscle pain after falling at home and lacerating the right side of his back. X-rays were negative for joint disease, fracture, or dislocation. The final diagnosis was “acute myolumbo-sacral sprain.” Private treatment records associated with a workers’ compensation claim include a November 2008 note in which the Veteran reported that his back had been bothering him since he injured his knee at work. He also reported injuring his back in a work-related incident several years prior. X-ray showed mild to moderate degenerative change. Work relatedness was not clearly defined. An evaluating physician ultimately concluded that the Veteran’s back pain was not work-related and instead was aggravation of a prior lumbar spine injury. The records contained no mention of an in-service back injury. VA treatment records show the Veteran sought treatment for back pain in November 2009. He reported that he hurt his back in July 2005 in a work-related incident in which he was moving products from a warehouse to work area using a manual hand jack. Then, in July 2008, he reinjured it moving equipment in the workplace. In March 2010, the Veteran reported having had back pain for four years. He reported injuring his back in a work-related incident, then reinjuring it later. The Veteran did not report an in-service back injury. The Veteran was afforded a VA examination in connection with his claim in July 2012. The examiner concluded that the Veteran’s current back disability was not due to or the result of his December 1965 complaint of sore muscles in his back: “[n]o mechanism of injury was noted and the Veteran was returned to duty with no pathologic diagnosis rendered.” The examiner otherwise found no evidence of a back injury or chronic low back condition in the Veteran’s STRs. The examiner also pointed out that the Veteran reported no recurrent back pain on his discharge examination, and physical examination of the back was normal. Instead, the examiner noted evidence concerning post-service back injuries in 1968, 2005, and 2008 and concluded that the medical evidence was “overwhelming” that the Veteran’s low back disability was of post-service onset. In a December 2012 authorization for release of information, the Veteran reported that a private orthopedic specialist gave him an opinion in which the doctor noted that the awkward landing from the in-service “explosion fall” and point of impact was the cause of the chronic pain in back and positioning difficulties; the pressure of the impact might have caused slight shift of lower spine structure causing impingement; the x-rays did not show anything; and surgical repair was possible but not recommended. During his October 2017 Board hearing, the Veteran reported that records from this orthopedist were unavailable due to water damage. In an April 2013 letter, the Veteran’s VA physician described the Veteran’s current low back disability but did not provide an opinion as to etiology. In an April 2013 VA treatment note, the Veteran reported low back pain since 1962, “worse one year after the injury.” He reported pain in the central lower back. In a June 2014 VA treatment note, the Veteran reported having had back pain for 40 years since sustaining a low back injury in 1967. In subsequent VA treatment notes, the Veteran attributed his back pain to his claimed in-service injury. During his October 2017 Board hearing, the Veteran reiterated his contentions concerning his in-service back injury. He described being tossed from his bunk by a grenade blast. He stated that he did not seek treatment at the time of the incident but felt low back pain the next day. He testified that he believed he aggravated his in-service back injury in the July 1968 fall noted in private treatment records, and that subsequent back injuries aggravated the in-service injury. The Veteran reported self-treating his back pain for many years. In a May 2018 letter, Dr. D.S. (a private physician) wrote that the Veteran has had low back pain since sustaining a combat accident while deployed in Vietnam 40 years prior. Dr. D.S. otherwise provided no information concerning the nature and etiology of the Veteran’s low back disability. In a September 2018 addendum opinion from the VA examiner who conducted the July 2012 opinion, the examiner again concluded that the Veteran’s current low back disability was not etiologically related to the December 1965 reports of sore back muscles or the 1967 combat-related incident and reiterated his previous rationale. The examiner next addressed the Veteran’s claimed 1967 combat injury. He considered the May 2018 letter from Dr. D.S., but questioned its objective merit given Dr. D.S.’s reliance on the Veteran’s subjective history and failure to address the multiple post-service low back injuries. The examiner also questioned the Veteran’s credibility, given VA treatment records showing extensive treatment for chronic delusional disorder. The examiner described his own extensive medical experience, including surgical training, Board certification, and over 20 years of service as an active duty Army General Surgeon caring for active duty service members and retirees. While serving as a General Surgeon, the examiner had extensive exposure to trauma, including during deployment to Iraq, as his military assignments were either to Army Trauma Centers or large Army base hospitals with trauma units. He reported that his experience included treating a wide variety of fall injuries, “from bar stools, ladders, roofs, trees, rocks, cliffs, towers, apartment buildings, and (for two years at Fort Bragg) from planes and jets with parachute landing falls.” Based on this experience, the examiner described himself as an “expert in combat and fall mechanisms of injury.” In reaching a negative nexus opinion, the examiner explained first that, in his opinion, a grenade blast close enough and strong enough to blow a man out of his bunk would also be associated with some grenade fragment wounds, none of which are noted in the STRs. Second, the examiner opined that the mechanism of injury described by the Veteran would have been insufficient to produce severe lumbar spine damage that could lead to degenerative joint disease or degenerative disc disease-induced chronic low back pain; that such a fall from a bunk and awkward landing would not have entailed a significant amount of force of injury to seriously injure a man’s lumbar spine. Third, the examiner considered the fact that STRs indicate the Veteran did not seek treatment for his combat injury, and that at his September 1967 separation examination, the Veteran reported no recurrent back pain, and physical examination of the back was normal. The examiner ultimately concluded that the objective data shows that the Veteran’s claimed combat injury was “minor and inconsequential” and not the source of his current chronic low back pain. He further indicated that the medical evidence is overwhelming that the Veteran's current back condition was of post-service onset, and supported this conclusion with a thorough rationale. Overall, after careful review of the medical and lay evidence of record, the Board concludes that a preponderance of the evidence is against establishing a nexus between the Veteran’s claimed in-service injuries and his current back disability. As is true with any piece of evidence, the credibility and weight to be attached to medical opinions and observations are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the Board finds the VA examiner’s July 2012 and September 2018 opinions to be the most probative evidence of record concerning a nexus between the Veteran’s current disability and in-service incurrence. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. Here, the VA examiner’s opinions are much more thorough and complete than that of Dr. D.S. The VA examiner’s report was based on extensive review of the Veteran’s entire claims file including his in-service and post-service clinical history, and took into account intervening events, the nature of the injury described, and the lack of evidence in the Veteran’s STRs. Dr. D.S.’s opinion did not. Moreover, the VA examiner commented on the nature of the Veteran’s described in-service injury as compared to his current low back disability in reaching a conclusion as to etiology, whereas Dr. D.S. did not. Finally, the VA examiner described in detail his extensive, relevant medical experience that allowed him to reach an opinion concerning the Veteran’s claim. The Board acknowledges that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and that the absence of evidence in the Veteran’s STRs is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board has not denied the claim on such a limited basis. Rather, the preponderance of the probative and competent evidence weighs against finding a nexus between the Veteran’s low back disability and his active military service. Though the evidence shows the Veteran sought treatment in service for sore back muscles in 1965 and was likely injured in a grenade blast in 1967, the evidence does not support a finding that his current disability is etiologically related to either of those incidents. In weighing the evidence of record, the Board has considered lay testimony of the Veteran, who sincerely believes that his current back disability is related to service. However, while it is true that the Veteran, as a lay person, is competent to report the circumstances surrounding an injury or disease, as well as symptoms and history of treatment; he is not competent to make medical conclusions, especially as to such complex issues as the etiology of a disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board finds that service connection for a low back disability is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel