Citation Nr: 18150893 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 12-31 212A DATE: November 16, 2018 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence establishes that the Veteran’s current low back disability first manifested many years after service, and is not etiologically or otherwise related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.303(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from January 1972 to June 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (hereinafter, Agency of Original Jurisdiction (AOJ)). The Board notes that the Veteran was scheduled for a January 2016 hearing, however per the December 2015 correspondence, the Veteran requested to cancel said hearing. As such, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (2017). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 1. Entitlement to service connection for a low back disability The Veteran contends that he injured his back in-service and that his currently manifested low back disability is due to that in-service injury, which has progressively worsened. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). For some “chronic diseases,” presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With “chronic disease” shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a ‘chronic disease’ in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic disease’ became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term “chronic disease,” whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is deemed a chronic disease under 38 C.F.R. § 3.309(a). Additionally, with chronic disease shown as such in service (or within the presumptive period) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote are also service connected, unless clearly attributed to intercurrent causes. Moreover, if chronicity in service is not adequately supported, a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b). At the outset, the Board acknowledges that the Veteran has been diagnosed with osteoarthritis and degenerative disc disease of the spine as well as lumbago and chronic lumbar strain, and thus the issue before the Board is whether his low back condition is related to active military service. The Veteran filed his original application for service connection for “[s]ciatic [n]erve” disability in December 2009. He reported an onset of January 1974. A review of the Veteran’s service treatment records revealed that on the December 1971 report of medical examination the Veteran was deemed normal, and denied any painful or swollen joints at entry of service. In February 1974 the Veteran sought medical care for a pulled muscle in his back assessed as muscle strain paracervical to the left shoulder. He was prescribed Parafon and diathermy, and instructed to return in 5 days. In March 1974, the Veteran reported injuring his back while wrestling one week previous, and complained of back and upper arm pain on movement. Examination revealed no palpable spasm. The Veteran was treated with Valium which he could take with work as well as heat diathermy to the left shoulder. There are no other notations in the service treatment records documenting a back injury or treatment. At separation in May 1974, the Veteran’s spine, lower extremities and neurologic system were clinically evaluated as normal. The available post-service records reflect that the Veteran first reported a “long” history of lower back pain to VA in 2008. In April 2009, he specifically reported “lower back pain x 1-2 years.” He denied lower extremity weakness and paresthesia. He otherwise referred to having a history of low back pain “x years.” The Veteran underwent VA examination in April 2010, where the Veteran reported his in-service back injury as well as alleging he was bedridden for almost a month during service. He described his back as never being the same since the injury. An x-ray revealed osteoarthritic changes with osteophyte formations and narrowing of the disc spaces between L2-L3 and L5-S1. The examiner opined that the Veteran’s low back disability is less likely the result of any claimed in-service back injury, as there was no reported back injury at separation, and during service there was no indication of a serious of chronic problem associated with the Veteran’s back. A November 2010 private medical opinion from Dr. A.S., reviewed the March 1974 treatment record of low back injury, and next noted a November 2008 clinic record wherein the Veteran presented for low back pain “for years since the injury in the navy which became progressively worse.” X-rays revealed osteoarthritic changes with narrowing of disc spaces between L2-L3 and L5-S1. The examiner checked a statement that “Yes it is as likely as not” that the Veteran’s current diagnosis was a direct result of his military service. No reasoning was provided. In an addendum dated March 2016, Dr. A.S. reiterated that the Veteran injured his back in March 1974. He also reported an additional injury of injuring his back while pulling on a wrench as falling backwards in either 1973 or 1974, which was not documented. The Veteran’s VA clinic records beginning in 2008 including his report of low back pain persisting for years. In 2010, the Veteran had provided Dr. A.S. with a history of lower back pain for years which had become progressively worse since his injuries in the Navy. Dr. A.S. indicated that the Veteran’s low back disability was diagnosed as lumbago which refers to any condition or conditions causing lower back pain. The Veteran manifested concomitant chronic lumbar strain as well as degenerative joint disease. Dr. A.S. opined that the Veteran’s condition was documented to have “possibly” originated from his back injuries in the Navy, and his chronic lumbar strain “could have resulted” from his injuries and, therefore, “as likely as not service connected.” A February 2017 VA pain clinic consultation included the Veteran’s report of chronic low back pain which first occurred “when he ‘tore his sciatic nerve in 1994.’ Th[is] was while working on a big wheel as he was fixing the clutch.” It is later reported “Symptoms began: after in injury in 1994?” As there were conflicting opinions VA sought an additional medical opinion. On examination in December 2017, the Veteran’s diagnosed degenerative arthritis of the spine was noted. However, the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the in-service injury the Veteran alleges. Specifically, the examiner noted that the Veteran was in-service for two years, in which he only sought medical care twice and for mild upper back pain. There is no evidence of low back pain in-service, and no evidence of continuity between 1972 through 1974, and today. Additional evidence includes citations to medical treatise materials which state that trauma to a joint or intervertebral disc may cause tissue destruction and later development of arthritis. The Board finds that the preponderance of the evidence establishes that the Veteran’s current low back disability first manifested many years after service, and is not etiologically or otherwise related to active military service. There is evidence for and against the claim which rely on differing factual predicates. The probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The “factually accurate, fully articulated, sound reasoning for the conclusion” contributes probative value to a medical opinion. Id. On the other hand, a medical opinion based on an inaccurate factual predicate has reduced probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board must first determine the accurate factual history as reported by the Veteran and shown by the record. The Veteran clearly obtained treatment for “back” pain in February and March 1974. The February injury was assessed as muscle strain paracervical to the left shoulder while the March injury was focused on “back” and upper arm pain on movement with diathermy treatment focused on the left shoulder. Thus, the record is consistent with treatment for upper back, rather than low back, symptoms during service as evaluated by the December 2017 VA examiner. The Board finds no error in the December 2017 VA examiner’s interpretation of service treatment records. The Veteran has reported low back injury and symptoms, including sciatica, in service wherein he was bedridden for almost a month. However, the treatment records – while not documenting low back symptoms – clearly reflect that the Veteran was returned to duty on both occasions. There is a notation that he could take Valium while working. The Veteran’s current recollection of chronic low back symptoms since the injury are not consistent with his first specific report of symptoms to a VA physician in April 2009, wherein he reported the onset of his symptoms by “1-2 years” and at which time he denied lower extremity weakness and paresthesia. Years later, he reported the onset of low back pain and sciatica after a 1994 post service injury. This may have been a typo for 1974. In any event, the Veteran had a normal clinic evaluation for his spine, neurologic system and lower extremities at separation which is not consistent with a torn sciatic nerve in service. At the very least, the Veteran’s history of inconsistent statements reduces the overall reliability of his assertions. See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, “[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.”) Overall, the Board finds that the Veteran’s allegations of chronic low back pain with sciatica in service is not credible in light of the service treatment records showing treatment for upper rather than lower back pain, the clinic evaluation by a competent examiner upon separation which showed a normal clinical evaluation of the spine, lower extremities and neurologic system, and the Veteran’s first specific recollection of the onset of low back pain in April 2009 wherein he reported an onset of 1 to 2 years previous. Based on these factual findings, the Board places greater probative weight to the opinion of the December 2017 VA examiner who found that the Veteran’s current low back disability was less likely than not incurred in or caused by the alleged in-service injuries which is based on the Veteran’s treatment for mild upper back pain in service, medical evidence of a normal spine upon separation, and no credible evidence of low back continuity symptoms since service. On the other hand, the opinions by Dr. A.S., hold significantly less probative weight as the opinion of a chronic low lumbar strain since service relies, in part, on the lay history of chronic low back pain since service which is not found to be factually accurate. Additionally, Dr. A.S. does not provide any reasoning to explain the service records showing treatment for upper back/paracervical symptoms rather than low back pain, or the significance of the normal clinical evaluations of normal spine, lower extremities and neurologic systems by a competent medical professional upon separation from service. Additionally, the reference to the degenerative spinal changes “possibly” originating in service and a chronic lumbar strain “could have resulted” from the in service injuries is couched in speculative terms which reduces the overall probative value of the opinion. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (favorable evidence which does little more than suggest possibility of causation is insufficient to establish service connection). The original opinion contained no rationale to support the opinion. The Board has also considered the medical treatise information submitted in this case. These hold some probative value as they show a potential relationship between injury and later development of chronic disability and/or degenerative changes. However, the Board places greater probative weight on the opinion of the December 2017 VA examiner who applied medical principles to the specific facts of this case rather than general medical principles found in an article which may or may not apply to the particular facts of a case. Moreover, the Board notes that the Veteran himself is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-10 (2007). However, it is clear based on the evidence overall that the Veteran is merely speculating as to whether any previous back injury resulted in his currently manifested degenerative arthritis of the spine. In this regard, he is not competent to opine as to the etiology of such condition. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). With respect to his allegations of manifesting chronic low back symptoms since service, for the reasons discussed above, the Board finds that these allegations are not credible. As, such, the Board finds that service connection on the basis of continuity of symptomatology alone is not warranted under 38 C.F.R. § 3.303(b). Similarly, in addition to no credible lay evidence of chronic low back symptoms within the first postservice year, there is also no medical evidence credibly establishing the onset of arthritis within one year of service discharge. As such, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is also not warranted. Accordingly, entitlement to service connection for a low back disability is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel