Citation Nr: 19129484 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 16-00 646 DATE: April 16, 2019 ORDER The claim of entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence of record reflects that the Veteran’s present back disability was not incurred in or otherwise etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1990 to July 1993. 1. The claim of entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back disability. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2018); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Degenerative disc disease, as arthritis, is a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. See Walker, 708 F.3d 1331. For the showing of 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. With chronic disease noted in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, chronic diseases will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307 (a)(3). The Veteran’s May 1990 enlistment examination does not note a back injury preexisting service. In a March 1991 medical screening, it was found that he had no physical limitations. In April 1991, he reported that he had not been hospitalized within the previous 5 years, and he was not under a physician’s care at the time of examination. Undated service treatment records reflect multiple physical profiles that allowed the Veteran to stop maintaining a close shave due to his pseudofolliculitis barbae (PFB). Another undated record reported that the Veteran’s “temporary (minor) problems” were limited to: hypertension, viral syndrome, and pharyngitis. His July 1993 separation examination only noted a history of high blood pressure, which was also found in his entrance examination. His back examination was normal. The separation examination noted no permanent physical profiles. The Veteran’s separation examination assigned a numerical designation of “1” under the P and L categories on the Veteran’s physical profile, i.e., PULHES. PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities, including the lumbar spine; the H for hearing and ear; the E for eyes; and the S stands for psychiatric. The number “1” indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit for that category. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Veteran’s Social Security Administration (SSA) records reflect approximately 18 years of post-service work involving physical labor from March 1996 to January 2014. The Veteran routinely engaged in physical labor in his civilian career, including lifting and carrying heavy objects. In May 2010, according to SSA records, the Veteran sought treatment from a private physician for back pain. In February 2012, private treatment records reflect that he sought treatment for bilateral hip and groin pain, during which he did not report a history of injury to the region. March 2012 imaging found a congenitally narrowed spinal canal, broad-based disc bulges, small central disc protrusion, and ligamentum flavum hypertrophy. According to private treatment records from April 2012, the Veteran first started experiencing back and right leg pain approximately one year before that examination. In January 2014, private treatment records reflect diagnoses including lumbar back pain, degenerative disc disease, spondylosis, radiculopathy, and spinal stenosis. Also in January 2014, the Veteran reported chronic back pain secondary to an injury but did not specify the nature or onset of the injury. In July 2014, the Veteran submitted his Notice of Disagreement, reporting that he fell on a log and injured his back during basic training. He stated that he was seen by a physician and removed from training for one week. He was cleared after one week and allowed to resume training. At the time, the doctor purportedly informed the Veteran that he suffered bruising and swelling in the lower back. The Veteran then stated that his current physician believes that back injury began the deterioration of his back. In August 2014, the Veteran reported during private treatment that he injured in back in the military in 1990. Over the previous four years, he experienced progressive low back pain radiating into his right leg and groin. In September 2014, SSA records reflect a report that he fell from a tower while in the military and that his back worsened over the years. At the time of the fall, the Veteran reportedly was told that he had a bruise and contusion. The Veteran also stated that he was given two weeks of restriction after the incident. As set forth above, the Veteran provided statements regarding the onset of symptomatology associated with a back disability, and the Veteran is competent to describe these symptoms observable to a lay person. However, the Board notes that the Veteran provided inconsistent statements regarding the timing of his symptoms. Service treatment records do not note a back injury or complaints of back pain at any point during service. Despite the Veteran’s assertion, no records are associated with the record that demonstrate a physical profile for a back injury, despite the existence of multiple profiles to treat his PFB. The Veteran’s separation examination noted no ongoing back complaints or reports of pain and found him to be in good condition according to his PULHES score. At the time of his separation, the Veteran also did not voice complaints of ongoing pain or a previous in-service injury. The Veteran sought treatment for back pain many years after service, and after having engaged in a physically active job for nearly two decades. When he initially consulted a doctor, he reported that symptoms associated with his back began in 2011. The timeline remains consistent regarding onset until July 2014 when the Veteran submitted a lay statement endorsing an injury in basic training after falling on a log. The very next month, the Veteran reported in a private treatment session that his back pain started in the military in 1990. However, in this appointment, he only reported back pain for the previous 4 years. He did not state that symptoms existed around the time of discharge, or that they manifested within one year of discharge. According to SSA records from September 2014, the back injury occurred when he fell from a tower in service, and he was given two weeks of restriction, not one week as previously reported. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (“Credibility is determined by the fact finder.”). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The timing of the Veteran’s statements as outlined above lessen the probative value of his reports of an injury in service. Only after the July 2014 rating decision did the Veteran assert an injury during military service. His statements are also inconsistent with previous treatment records that estimate an onset of back pain around April 2011 or, at the earliest, 2010. Such inconsistent statements surrounding the approximate onset of observable symptomatology also lessen the probative value of the Veteran’s statements regarding the onset of the back disability. Due to the diminished probative weight of the Veteran’s statement, particularly as contrasted with documented medical treatment records associated with the claims file, the Board finds that an alternative showing of a temporal nexus by manifestation of back symptoms during active duty or within one year of active duty service has not been proven by the Veteran’s lay testimony. In sum, the preponderance of the competent, probative evidence of record reflects that the Veteran discharged from active duty service in July 1993 without a chronic injury of the back. He engaged in 18 years of physical labor that involved lifting heavy objects. At the earliest, the evidence of record reflects reported symptoms around 2010. Only after the first denial of benefits did the Veteran specifically assert an injury in service, and the nature of that injury varied between his individual reports. While the Veteran stated that his doctor endorsed an etiological relationship between the present disability and his reported in-service injury, no such opinion is contained in his medical records. Two records assert a history of injury as reported by the Veteran, but the clinicians provided no etiological relationship between that injury and his present disability. The Veteran believes his back disability is related to his active duty service, but he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical training and experience to proffer competent opinions regarding etiological relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent, probative medical evidence of record supporting an onset of a back disability many years after active duty service. Based on the foregoing, the claim of entitlement to service connection for a back disability is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel