Citation Nr: 18154635 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-33 789 DATE: December 4, 2018 ORDER Entitlement to service connection for a back disability (status post laminectomy at L5-S1, degenerative disc disease at L4-5 with chronic muscular strain, and T12 compression fracture) is denied. FINDING OF FACT 1. The earliest clinical evidence of a back complaint is not until more than two decades after separation from service and does not reflect continuity of symptoms since service. 2. The most probative evidence supports a finding that the Veteran does not have a back disability causally related to service. 3. The Veteran’s back disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1111, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1954 to May 1957. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). It was most recently before the Board in January 2018 when it was remanded for further development (i.e. clinical records and VA clinical opinion). The Board finds that there has been substantial compliance with the directives of its remand. The Veteran has reported that he has no further records to support his claim. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). Analysis 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 claim. Entitlement to service connection for a back disability The Veteran has been diagnosed with status post laminectomy at L5-S1, degenerative disc disease at L4-5 with chronic muscular strain, and a T12 compression fracture. He contends that he injured his back in service when he accidently stepped into a hole or from mechanical work, that he was seen at sick call, and that he used plywood under his mattress to help his back. The Board finds that the evidence of record as a whole is against a finding that service connection is warranted. The Veteran’s available personnel and service treatment records are negative for complaints of a back disability; they reflect complaints of the feet (September 1955), and the thumb (January 1956) but nothing with regard to the back. However, there is an indication that if there were additional records, they may have been destroyed in a July 1973 fire at the National Personnel Records Center. When, as here, at least a portion of the service records cannot be located, through no fault of the veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). The earliest post-service medical evidence of record concerning back problems is in 1981, which is more than two decades after separation from service. An August 1981 private record reflects that the Veteran was a farmer who sought treatment for low back pain. It was noted that the Veteran had had intermittent pain that became more intense in the prior month. It was also noted that the Veteran had seen a neurosurgeon four to five years earlier (or in approximately 1976) and after six days of bedrest at home, the pain subsided. The Veteran was diagnosed with degenerative joint disease and disc disease. The only previous injuries were noted to be broken arms in childhood. Another August 1981 record reflects that the Veteran “has developed pain in the low back [and] legs.” There was no notation as to pain since service or an injury in service. The Board finds that if the Veteran had a back injury in service or had chronic back pain and/or treatment since service, it would have been reasonable for it to have been noted in the record; however, no such contention is noted. An October 1981 Salem Hospital record reflects that the Veteran was hospitalized from August 1981 to September 1981 for back surgery (partial laminectomy and removal of ruptured intervertebral disc at L5-S1). It was noted that the Veteran had been “under treatment 8 years ago for similar pain but he went home and stayed at bed rest for a few days and the pain completely disappeared and he did not require any further treatment. He experienced a sudden onset of pain while working on the farm and unfortunately this pain did not disappear as it did years ago.” According to this record, the Veteran’s back pain initially occurred as early as 1973, still more than fifteen years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no clinical records between 1981 and 1991 which note continued complaints of back pain, and no records reflecting arthritis manifested to a compensable degree within a year of separation from service. A May 1991 private record (Dr. D. P.) reflects that the Veteran injured his back in an “on the job accident which occurred” in January 1991 while he was lifting some cargo. He was released by a workman’s compensation physician with a diagnosis of resolved lumbosacral strain. A February 1993 Salem Clinic record reflects that the Veteran had a “new problem” of chronic back pain since a laminectomy in 1981. An April 1993 Salem Clinic record reflects that the Veteran had discomfort in his low back for “a couple of weeks”. The diagnosis was osteoarthritis of the low back aggravated by long trip in a truck in a poorly designed seat and with poor truck suspension. The earliest allegation of the Veteran having had a back injury in service is not until 1993 (approximately 26 years after separation from service and after employment as a farmer, mechanic, welder, and truck driver). An October 1993 VA examination report reflects that the Veteran reported pain “intermittently” in the low back pain since 1955 in service. He denied any specific injury and stated that his recurrent use of the back while working as a mechanic resulted in frequent visits to sick bay due to low back pain. He denied having any light duty status while in service. The Veteran reported post-service surgery (laminectomy) in 1981 with excellent results until January 1991 when he reinjured his back when he stepped into a drainage hole while unloading a truck. The Veteran’s mother (E.W.) submitted a statement in October 1993 in which she stated that she remembered that in late 1955 or 1956, the Veteran was having a “lot of trouble with his back” and that he was told to put a sheet of plywood on his bed which seemed to help somewhat. M.(W.) D. submitted an October 2015 statement in which she reported that when she and the Veteran were married, the Veteran stepped in a hole and injured his back for which he sought treatment (to include using a piece of plywood under his mattress). (The Board notes that she and the Veteran were married in August 1956. Thus, it appears that she is alleging that the incident would have occurred between August 1956 and the Veteran’s separation in May 1957.) She further stated that she was there and it “really did happen”. The Board notes that this allegation (i.e. injuring the back when stepping in a hole) is contrary to the Veteran’s initial statement as to not having a specific injury. Subsequently, in a November 2018 statement, the Veteran stated that he injured his back stepping in a hole in the dark while taking care of the furnaces in the barracks. With regard to the recent contention of the Veteran and his former wife that he hurt his back stepping in a hole in service, this contention lacks credibility as it is inconsistent with the Veteran’s 1993 denial of a specific injury in service. A February 2015 statement from Dr. L. W. (Salem Clinic) notes that the doctor had known the Veteran for over 25 years (since approximately 1990) and on the Veteran’s “first visit, he was noted to have chronic low back pain, dating back to his time in the military service.” The Board finds that the actual clinical records contemporaneous to treatment in the 1990s are more probative than the statement of Dr. L.W. more than two decades later, including the 1993 VA examination which noted that the Veteran had excellent results following his 1981 back surgery until another injury in 1991. There are no Salem Clinic records which note complaints since service; rather, the Salem Clinic records note much later injuries/onset of pain. A May 2016 RO Decision Review Officer Informal Conference Report reflects that the Veteran reported that he injured his back during the “grave yard shift” when he accidently stepped into a hole, he was seen in service, and the use of plywood under his mattress was recommended. The Veteran reported that his back condition “comes and goes but has continued since service”. The Veteran testified similarly at the 2017 Board hearing. This differs from the Veteran’s earlier statement to a medical provider that he was completely symptom-free for eight years from approximately 1973 to 1981, and that he had previously reported being symptom-free from the 1981 surgery to 1991. The Board finds that an eight-year period of no pain and/or a ten-year period does not equate to continuity of symptomotology. September 2017 correspondence from Dr. N.P. (Salem Clinic) reflects that the Veteran has “a documented T12 vertebral compression fracture which is considered at least 50 [percent] attributable to an injury sustained during his military service.” Dr. N.P. did not support his opinion with any clinical records, did not note any specific injury in service to the thoracic spine, and did not discuss the lack of complaints of the T12 area in the decades after separation from service. In addition, the Veteran reported to the 2018 VA examiner that he did not recall ever having thoracic pain in service. Thus, Dr. N.P.’s opinion has little to no probative value. The claims file includes a July 2018 VA clinical opinion that the Veteran does not have a lumbar or thoracic spine disability causally related to active service. The clinician considered the lay statements as to an injury in service and found that they were consistent with a low back strain in service, and not to a current disability. The clinician also discussed the Veteran’s allegation of post-service treatment, post-service work in manual labor, and post-service injury. The Board finds that the opinion carries significant probative value as the examiner considered the clinical records, the lay statements, and the Veteran’s medical history and occupational history. The preponderance of the evidence is also against a finding that arthritis was manifest within the first post-service year or that service connection for arthritis is warranted on the basis of continuity of symptomatology. The Board acknowledges that the Veteran is competent to describe back pain even though there are no STRs to support such complaints. However, the Board finds that any statement as to continuity since service lacks probative value given the record as a whole, to include the Veteran inconsistency as to whether his back complaints was due to mechanic work or stepping in a hole, the Veteran’s initial denial of a specific back injury, and the post-service records, prior to the Veteran filing a claim for service-connection, which note etiology other than service. The Board also acknowledges the Veteran’s statements as to post-service treatment even though such records are not associated with the claims file. However, again the Board finds that the history reported in the actual clinical records in the 1980s and 1990s is more probative than the Veteran’s history reported years later. In making such a credibility finding, the Board is not finding that the Veteran and his lay witnesses have any intent to deceive. Rather, they may be simply mistaken in their recollections due to the fallibility of human memory for events that occurred many years ago. The Board also finds that any clinical opinion based on such unsupported history lacks probative value. In sum, the most probative evidence reflects that after separation from service, the Veteran was able to work in manual labor for many years, that his post-service back pain began in approximately 1973 or later, and that his post-service back pain was related to his post-service employment or post-service activities. Thus, service connection is not warranted.   The Board appreciates the Veteran’s service; however, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard