Citation Nr: 18151293 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 10-19 801 DATE: November 19, 2018 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar disorder was due to a disease or injury in service and arthritis did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2009 and issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before a Veterans Law Judge at a June 2013 Video Conference hearing. A copy of the hearing transcript has been associated with the record. The Veterans Law Judge that conducted the June 2013 hearing has since left the Board prior to final adjudication of the instant appeal. The Veteran was apprised of this by letter in May 2017 and elected to waive a second hearing in a June 2017 response. The Board denied the instant appeal in a July 2017 decision. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Order and Joint Motion for Remand, the Court vacated the Board’s July 2017 decision and remanded the instant matter to the Board for further adjudication. Duty to Assist The Secretary is required to assist a claimant in obtaining evidence necessary to substantiate his claim for benefits. 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159. This requires that the Secretary make reasonable efforts to obtain all federal and private records adequately identified by the claimant and relevant to his claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (clarifying that the duty to assist in obtaining records extends only to relevant records). Where such records are in the custody of the federal government, reasonable efforts include “as many requests as are necessary” unless it “concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2). Where such records are not in the custody of the federal government, reasonable efforts “will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request” unless “a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.” 38 C.F.R. § 3.159(c)(1). VA has attempted to obtain the Veteran’s service treatment records on multiple occasions. The RO made a formal finding of unavailability of the Veteran’s service treatment records in January 2009. A June 2009 Personnel Information Exchange System (PIES) response from the National Personnel Record Center (NPRC) was negative in that it reflected that there were no service treatment records available for the Veteran. A December 2009 Memorandum to the file indicates that a VA employee had contacted the Records Management Center (RMC), that an employee there had stated that there was a service treatment records in a microfiche file for this Veteran and that the employee would forward VA whatever was in that microfiche file. A January 2010 PIES Response indicates that the only available medical documents (report of medical examination, report of medical history and notification of decision) were taken off the Veteran’s personnel microfiche and are being mailed to VA; the Board notes that such documents are of record. The response also indicates that there are no additional service treatment records on file. An August 2016 PIES response indicates that a search for inpatient clinical records at the Jacksonville Hospital Naval Air Station dated from January 1990 to December 1990; from January 1991 to December 1991; and from January 1992 to December 1992 was conducted and no records were located. The Veteran was informed of these negative responses in an August 2016 letter. A January 2017 PIES response indicates that a search for inpatient clinical records at the Jacksonville Hospital Naval Air Station dated from January 1993 to December 1993; from January 1994 to December 1994 and from January 1995 to December 1995 yielded negative results. The Veteran was informed of these negative responses in a January 2017 letter. The Board notes the Veteran’s June 2013 hearing testimony that he was treated by “Dr. Eshman” at the Jacksonville Hospital Naval Air Station for his back during service. However, multiple requests for treatment records from the Jacksonville Hospital Naval Air Station have yielded negative results. These record requests would have encompassed any specific records made by “Dr. Eshman” as he was a provider at the Jacksonville Hospital Naval Air Station. The Board therefore finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran Pertinent Statutes and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331. 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In this regard, the Veteran’s low back disorder is not considered a chronic disease subject to presumptive service connection and, therefore, such laws and regulations are inapplicable to the instant claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a lumbar spine disorder. The Veteran asserts that his disability arises from an in-service motor vehicle accident, and that he was treated at the Jacksonville Hospital Naval Air Station. The Veteran has given varying dates as to when the accident occurred. In a November 2009 statement, he wrote that the accident was in 1993. In his June 2013 testimony before the Board, he stated that the accident occurred in 1990. In his October 2009 notice of disagreement, he stated that that he was treated during the last two years of his service, 1993 and 1994. In a form that he filled out to assist in reconstruction of lost medical records, he stated that he was treated from August 1993 to March 1995. The only service treatment records available for review are the Veteran’s enlistment examination and finding of fitness. Within these records there are no objective findings of diagnosed back conditions, complains, or treatments for a lumbar spine disorder. Tuscaloosa VA Medical Center treatment records show treatment for lower lumbar back pain since 2007 with lumbar disc surgery noted in 2007 and another back injury due to a car accident after the 2007 injury. These records also show that the Veteran reported having back pain in service in 1989 after a motor vehicle accident. In July 2011, the Veteran submitted a statement from a former attorney. The attorney stated that he represented the Veteran in a claim for injuries sustained in an automobile collision that occurred in the late 1990s. However, the attorney stated he no longer possessed the file to review prior to submitting his statement. The Veteran submitted records from Dr. J.H. through Sedgewick Claims Management. The Veteran filed a worker’s compensation claim against Coca-Cola in July 2007 after, while moving a pallet of soft drinks, the pallet pulled loose and he was thrown against the wall. The Veteran stated he felt something pop in his back and subsequently had trouble walking. Dr. J.H. noted on the Veteran’s medical history no accidents, injuries, or similar problems in the past. On September 2007, the Veteran underwent back surgery. In August 2008, the Veteran was seen for a recent injury lifting a container of syrup after returning to work for Coca Cola. A lumbar myelogram was performed and showed postoperative changes at L3-4 with back pain. However, no link of any current condition is given related to military service. In January 2015, the Veteran was seen at Prattville Center for Pain. The doctor noted that the pain started in approximately 2007. The Veteran was afforded a VA examination in February 2017. A diagnosis of lumbosacral strain was noted. The examiner reviewed records that showed the Veteran had a worker’s compensation injury in 2007 in which the Veteran injured his back and was diagnosed with posterior HNP at L3-4 with mild annular bulge posteriorly at L4-5 causing moderate spinal stenosis and foraminal encroachment. The examiner also noted that the records show that the Veteran injured his back again at work in August 2008. The Veteran stated the condition began when he was injured in a car accident while on active duty. He was seen in the ER and received epidural injections and physical therapy. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided that there were no records of the Veteran sustaining a back injury while in service. The examiner noted that the Veteran left active duty in 1995 and was not diagnosed with a back condition until 2007. Having considered all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The medical evidence shows that the Veteran has a diagnosis of lumbosacral strain. See February 2017 VA examination. As such, the first element of service connection (a current disability) has been met. Turning to the second element, the preponderance of the evidence is against a finding of an in-service event, injury or disease. The Veteran is competent to testify to in-service injuries, symptoms, and events. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d, 1372, 1376-77 (Fed. Cir. 2007). The Veteran has asserted throughout the course of this appeal that the back injury was caused by active service, including a motor vehicle accident. In this case, available service treatment records show no objective findings of a lower back injury, including arthritis of the spine. The first report of treatment for back pain is dated in 2007—twelve years after the Veteran’s discharge from active service and well beyond the one-year presumptive period for arthritis. Furthermore, as noted above, the Veteran’s statements concerning the date of the accident have varied. These inconsistencies undermine the credibility of his statements concerning an onset of a lumbar spine disorder in service, and they are therefore entitled to no probative weight. Based on the competent and credible evidence of record, the Board finds that the preponderance of the evidence is against a finding of an in-service event, injury or disease. As such, the second element of service connection has not been met. 38 C.F.R. § 3.303. Moreover, even assuming an in-service event, injury or disease, the preponderance of the evidence is against a finding of a causal connection between the current lumbar spine disorder and service. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. Here, the gap of many years between service and the submission of a claim for VA benefits weighs against a nexus between service and current disability. This is particularly so where records suggest a post service work related injury as the source of the diagnosed disability. In addition, the lumbar spine is a complex structure with any number of sources within it for back complaints. Thus, medical opinions on the question of a nexus with service were sought, none of which were favorable to the Veteran’s claim. The February 2017 VA examiner concluded it was less likely than not that a back disability was incurred in or caused by an in-service event. The examiner indicated there is no evidence in the available service treatment records to indicate that a condition existed. The examiner explained that the first mention of a back condition was in 2007, when a doctor for a worker’s compensation injury saw the Veteran. The examiner rationalized his conclusion after reviewing medical records dated August 2007, July 2008, April 2008, September 2008, and performing a physical exam. The opinion is shown to have been based on a review of the Veteran’s records and is accompanied by a sufficient explanation. For these reasons, the Board finds that the VA examiner’s opinion is dispositive of the service connection nexus question presented in this case. The remaining evidence of record, to include VA treatment records, has been reviewed and shows continued complaints and treatment for a lumbar spine disorder. However, these records note that the disorder started in approximately 2007 As the medical evidence establishes that the Veteran was not diagnosed with or treated for a chronic low back disability, to include arthritis, during active service or within a year after separation from active service, presumptive service connection for the same cannot be granted. Moreover, the February 2017 VA examination establishes that the diagnosed lumbosacral strain and posterior HNP at L3-4 with mild annular bulge posteriorly at L4-5 is not etiologically related to the Veteran’s active service. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). In a September 2007 Neurological Evaluation form, the Veteran reported that he had injured himself after falling while moving a pallet around in July 2007 and that his symptoms included back and leg pain. He specifically denied having similar problems in the past and responded “N/A” to a question inquiring as to what other accidents or injuries he had sustained in the past. The Board notes that this form was completed by the Veteran in conjunction with treatment he received after sustaining a post-service employment injury. Moreover, the Veteran has given varying dates as to when the purported in-service accident occurred. In a November 2009 statement, he wrote that the accident was in 1993. In his June 2013 testimony before the Board, he stated that the accident occurred in 1990. In his October 2009 notice of disagreement, he stated that that he was treated during the last two years of his service, 1993 and 1994. In a form that he filled out to assist in reconstruction of lost medical records, he stated that he was treated from August 1993 to March 1995. Therefore, the Board finds that any current, contradictory assertions as to the Veteran’s in-service back injury and a continuity of lumbar spine symptoms after service, advanced in support of this claim for monetary benefits, are deemed not credible. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant’s testimony). The Board acknowledges the Veteran’s assertions and sincere belief that he has a diagnosis of a lumbar spine disorder that is related to his contended in-service car accident. In this regard, the Veteran is competent to report the type of back pain and symptoms he experienced in and after service, as this is observable through the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination as to the etiology of his low back disorder is a complex medical determination which goes beyond lay observation of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet, App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing such as x-rays and a surgery. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence and the opinions of the Veteran are nonprobative evidence. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a lumbar spine disorder. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pierce, Associate Counsel