Citation Nr: 18155971 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 11-33 157 DATE: December 6, 2018 ORDER Entitlement to service connection for a chronic back condition is denied. FINDING OF FACT Arthritis of the back is not shown by the evidence of record to have manifested within one year of discharge from service, nor is a chronic back condition shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A chronic back condition was not incurred in or aggravated by active service, and may not be presumed to have been caused by active service. See 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to June 1992, and from March 1995 to August 1996. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In November 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. In March 2016, the Board remanded the issue on appeal along with the issues of service connection for bilateral hearing loss, tinnitus, and a heart condition for further development. In March 2018 and July 2018 rating decisions, the RO granted service connection for bilateral hearing loss, bilateral tinnitus, and a heart condition. These decisions were a complete grant of benefits with respect to these issues of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, these service connection issues are no longer on appeal before the Board. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a “chronic disease” under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the Veteran’s back claim. The Veteran is seeking service connection for a chronic back condition. A review of his service treatment records reveals that the Veteran complained of low back pain after lifting rounds in a July 1991 service treatment record. He complained of back pain for 1 day in an August 1995 service treatment record and was noted as having a possible back strain. A follow-up consultation later that same month showed the Veteran as having back pain for 6 days, and he was noted as having a possible strained muscle. In a December 1998 VA treatment record, the Veteran reported back pain for 3 or 4 days and was diagnosed with a muscle strain. The Veteran underwent a VA examination in December 2009, at which the examiner determined that it is less likely than not that the current back condition is due to the Veteran’s short-term back strains during military service. The examiner based this opinion on the rationale that it did not appear that the Veteran had a chronic back condition during service, there is no medical evidence of continuation after discharge until 2009, and the Veteran had a physically demanding post-military occupation. Despite this rationale, the Board notes that the claims file contains a December 1998 VA treatment record noting back problems and a muscle strain. As such, the Veteran was provided a new VA examination to consider this complaint. At the February 2017 VA examination, the Veteran was noted as having degenerative arthritis of the lumbar spine. An accompanying opinion determined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that there is one documented complaint of back pain in 1998 of duration of 3 to 4 days. Then, the next documented complaint of back pain was noted in 2010. The examiner found that it is difficult to call 2 documented complaints of back pain over 14 years of frequent medical opportunities a chronic condition. Although there is no doubt the Veteran had some back issues during service, the examiner found there was no indication at the termination of his service that he had any chronic back condition. Indeed, the Veteran’s chosen work – professional mover – is more likely to have contributed to the flares noted in the VA records. The examiner noted that, beyond this, it is not possible to opine without resorting to speculation. The examiner suggested that potential helpful evidence could perhaps be statements from friends or family with specific references to the first 15 years after service supporting ongoing pain since service as opposed to no pain for long periods, then an episode of pain lasting days to months. VA notes support periods of no pain to the back from 1998 until 2010. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2017). Currently, there is no persuasive medical evidence linking a diagnosed chronic back condition to the Veteran’s active duty service. Moreover, the February 2017 VA opinion specifically stated that it is less likely than not that the current back condition is due to the Veteran’s short-term back strains during military service. The Veteran’s complaints as to duration of symptoms are certainly capable of lay observation. However, the Board finds that the cause of a current back condition is not capable of lay observation, as the Veteran does not have training in orthopedic or neurological diseases. As such, the Veteran’s opinion is afforded little weight in the analysis of whether a nexus between his current back condition and his service exists. By contrast, the examiner who provided the February 2017 VA opinion reviewed the Veteran’s claims file and offered an opinion with supporting explanations as to why, in her medical judgment, the Veteran’s back condition is not related to service. As such, the Board places the most significant weight on the February 2017 medical opinion, which finds against service connection. Although the examiner included the word “speculation” in the opinion, it is clear from the entire context of the report that she actually did provide an opinion. The examiner concluded the back condition is less likely related to service, discussed the Veteran’s post-service medical history, and provided an alternate explanation for his symptoms (his post-service job). The examiner then stated, “beyond this,” it would be speculative to opine any further. Therefore, she did provide an opinion relying on the available evidence, but stated she could not opine any further without it being speculative. This is a valid, probative opinion. Thus, the Veteran’s claim for service connection for a chronic back condition must fail on a direct basis. See Shedden, supra. The Board acknowledges the representative’s argument in the November 2018 statement that the fact that the Veteran has not always sought treatment for back pain is not evidence that he did not have back pain. However, the Board notes that the February 2017 VA opinion is not based solely on a lack of documented treatment or complaints for a period of time. The examiner specifically noted that the Veteran’s chosen work as a professional mover is more likely to have contributed to back flares. Therefore, the fact that the Veteran did not seek treatment for his back pain for a period of time is just one factor used in rendering this opinion. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here it is not merely that there is an absence of complaints, but that there is documented medical treatment over a number of years for other medical concerns without any complaints concerning the back. Since the Veteran was receiving medical care, he certainly could have raised issues about his back. The fact that he did not weighs heavily in favor of finding that he did not have chronic back-related symptoms during those time periods. In fact, the Veteran has not claimed he had continuous symptoms after service. At the December 2009 VA examination, the Veteran reported that he had back problems in service and that his back would bother him “at times” over the years. With regard to granting service connection for presumptive diseases under 38 C.F.R. § 3.309(a), there is no medical evidence of record reflecting that the Veteran demonstrated arthritis of the spine to a compensable degree within one year of discharge from active duty. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a chronic back condition must be denied. See 38 U.S.C. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel