Citation Nr: 18158863 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-25 031 DATE: December 18, 2018 ORDER Entitlement to service connection for a low back condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s low back condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps (USMC) from December 1977 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a travel board hearing in December 2018; he was sent two hearing notification letters in November 2018, which were not returned as undeliverable. The Veteran failed to appear for the scheduled hearing and has not since submitted good cause for failure to appear and/or asked for it to be rescheduled. As such, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.702 (d). Entitlement to service connection for a low back condition The Veteran contends that he injured his low back after slipping and falling aboard a ship while serving with the USMC. See Statement in Support of Claim dated August 2012. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in- service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current disability of a low back condition, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are silent as to any complaints or treatment of back pain. The Veteran’s November September 1977 entrance exam and November 1981 separation exam do not include any notations for low back pain. Post-service treatment records reflect complaints of low back pain beginning in January 2013. The treatment records indicate that the Veteran’s back injury had its onset two weeks prior and occurred due to a sudden twisting/rolling of the foot. The same January 2013 treatment record also notes that the injury possibly resulted from a fall on stairs one year prior. A September 2013 treatment record for low back pain states that injury occurred on Friday due to a sudden/twisting rolling of the foot possibly while lifting heavy objects. The Veteran contends that he injured his back when he slipped and fell aboard a ship while in service. In the September 2012 Statement in Support of Claim, the Veteran asserted that during a training phase aboard a flat bottom ship, he fell injuring his back while he was loading on the cargo deck. He added that he was treated for the injury aboard the ship and given pain medication. In a March 2017 statement, the Veteran stated that he injured his back during Operation Gallant Eagle 80-81 aboard the USS Peoria. He stated that the incident occurred while the ship was going through heavy seas and he self-medicated with over-the-counter products to treat the injury. The Veteran submitted a Buddy Statement dated March 2017 from M.M. confirming the Veteran’s account of the injury. The Veteran’s statements from 2012 and 2017 offer different facts and circumstances regarding his in-service injury. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that the Veteran’s statements are not credible as they are inconsistent, outweighed by the remainder of the evidence of record, and were made under circumstances indicating bias or interest. Importantly, although the Veteran reported that he injured his low back in service and sought treatment in service, there is no evidence of such injury or treatment. The Veteran’s service treatment records are silent as to any injuries, complaints, or treatments for a low back condition. Further, the evidence in the record indicate that the Veteran did not seek treatment for a low back condition until January 2013, nearly 32 years after the Veteran separated from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Moreover, when seeking treatment for his low back condition in January 2013, the Veteran reported his low back onset begin two years prior or one year prior and was due to a sudden twisting/rolling of the foot or falling down the stairs. The Veteran never disclosed to his physician that the injury was attributable to his military service. These inconsistencies weigh against his statements relating to an in-service injury. In sum, the Veteran’s statements regarding the onset of his low back injury are inconsistent with the contemporaneous evidence. The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board, however, finds in the instant case that the combination of the lack of documentation in the Veteran’s service treatment records, the lack of medical evidence until many years after service, and the inconsistent statements regarding the in-service event to be persuasive evidence against his claim. Accordingly, while the Veteran’s contentions have been carefully considered, his statements are outweighed by the remaining evidence of record. After considering the totality of the evidence of record, the Board finds that service connection for a low back condition is not warranted as there is no competent evidence linking any disability to the Veteran’s military service. Although the Veteran was not afforded a VA medical examination in connection with the claim of service connection for his low back condition, the Board finds that the evidence does not establish any event, injury, or disease during service regarding the Veteran’s low back condition. Moreover, the record contains no indication that his current low back condition is causally related to his active service, any incident therein, or any service-connected disability. Under these circumstances, an examination or opinion is not necessary with respect to this claim. See 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel