Citation Nr: 20006201 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 10-03 069 DATE: January 28, 2020 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The Veteran’s degenerative arthritis of the lumbar spine did not have an onset in service or manifest to compensable degree within a year of separation of service, and the preponderance of competent medical evidence is against a finding that his current lumbar spine disorder is otherwise related to his period of service, to include in-service complaints of low back pain. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1994 to November 1998. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing in April 2017. A transcript of that hearing has been associated with the claims file. 1. Entitlement to service connection for a lumbar spine disorder The Veteran seeks entitlement to service connection for lumbar spine disorder. He contends that his current lumbar spine disorder is related to low back injury during his period of service. During his April 2017 Board hearing, the Veteran testified that he had experienced low back pain since his in-service back injury. He further testified that he believed that his back injury had been misdiagnosed as a lumbar strain and he had actually suffered herniated disc injury in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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. 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. See 38 C.F.R. § 3.303 (b). The chronicity provision of 38 U.S.C. § 3.303 (b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The record shows that the Veteran has a current lumbar spine disability, to include degenerative arthritis and spinal fusion status post disc herniation. See August 2017 VA back examination, as well as private and VA treatment records. After a careful review, the weight of the lay and medical evidence of record demonstrates symptoms of degenerative arthritis of the lumbar spine were not chronic in service, continuing since service, or manifested within one year of separation, and that the current lumbar spine disability was not otherwise related to service. A review of the Veteran’s service treatment records does show he complained of low back pain. A February 1997 service treatment record shows that the Veteran presented with complaints of low back pain for the past year. He reported a history of back injury from lifting a frozen food box and he had felt back pain afterwards. He specifically denied symptoms of popping or cracking at time of injury, but he reported constant dull low back pain with occasional sharp pain. On clinical evaluation, the Veteran had full range of motion in the lumbar spine with objective evidence of pain, but straight leg raise test was negative. The Veteran was diagnosed with a muscular ligamentous strain of the low back. A September 1997 service treatment record showed the Veteran complained of low back pain for the past few years, with exacerbation from fitness physical training. Clinical evaluation revealed evidence of slight tenderness left side of the low back, but x-ray film of the lumbar spine was considered normal and straight leg raise test was negative. The Veteran’s July 1998 examination prior to separation shows that his spine was evaluated as normal, despite his reported history of intermittent low back pain. His separation report of medical history shows he felt that his back had worsened since his last medical assessment and he intended to file a claim for VA compensation for his back problems. The first post-service treatment records for back complaints comes in 2005. A partial August 2005 private consultation report shows that the Veteran required consultation for lower back pain for the past nine years and he denied any known injury. Subsequent treatment records show that the Veteran had required surgery for disc herniation. A July 2006 private x-ray of lumbar spine showed findings of anterior lumbar interbody fusion at L4-5 and L5-S1 but was otherwise unremarkable. A November 2006 private x-ray lumbar spine report showed similar findings. A September 2007 private treatment record noted that the Veteran continued to complain of low back pain, and the private neurosurgeon noted that he would write a letter in support of the Veteran’s claim for VA benefits based his reported history of back injury during his military service. In a November 2007 correspondence, the private neurosurgeon noted that the Veteran reported he suffered injury to his back while lifting a box of frozen meat and he heard a “pop” in his back during his miliary service and he had subsequently developed herniated discs that required surgical intervention secondary to injury suffered in service. In a February 2010 correspondence, the private neurosurgeon provided another medical statement to elaborate on his previous statement. In addition, to the findings in his previous statement, the private neurosurgeon noted that the findings from a July 2005 MRI report had shown evidence of disc herniation with an extruded fragment, and he had required lumbar spine surgery. The private neurosurgeon opined that the Veteran had been misdiagnosed given that there was no testing performed on him at the original time of his injury or any time he remained in service. The August 2017 VA back examination report showed diagnoses of degenerative arthritis and spinal fusion. The Veteran provided a medical history of in-service back injury that had occurred while picking up box of frozen meat and he felt a “pop” in his back. The Veteran had sought treatment in service for back pain and his low back pain had progressively worsened since injury. His post-service occupation was as a tow motor driver and truck driver, and he had a history of motor vehicle accident in 2007. The current x-ray report showed findings of minimal degenerative changes at L2-3 and L3-4. Based on a review of the claims folder, the August 2017 VA examiner concluded it was less likely than not that the Veteran’s current lumbar spine disorder is related to his period of service. The VA examiner noted that while the service treatment records do show treatment for low back complaints during service, he had normal spine examination at separation despite his complaints of low back pain. The VA examiner further noted that most sprains, strains, and musculoskeletal issues generally resolve without residuals. In this case, the VA examiner noted that there was no objective continuity of care after service until 2005 and the Veteran’s post-service occupation included physically demanding types of employment and included a post-service work-related injury. In a March 2019 addendum VA medical opinion report, the VA examiner concluded that it is less likely than not that the Veteran’s current lumbar spine disorder is related to his military service. The rational was that a review of the service treatment records was silent for a diagnosis of arthritis of the spine and x-ray of a back was reported as normal in 1997. There was no indication of herniated disc in service. Rather, the VA examiner found that the available service treatment records supported the diagnosis of low back strain and did not support a diagnosis of herniated lumbar disc. The VA examiner specifically considered the private neurosurgeon’s medical statements regarding misdiagnosis and notation that the July 2005 MRI of the lumbar spine revealed evidence of central disc herniation at the L5-S1 level with an extruded fragment. The VA examiner also considered the Veteran’s lay statements of continuity of low back pain since service. However, the VA examiner concluded that the Veteran’s disc herniation and arthritis of the lumbar was less likely than not related to his period of service. The VA examiner noted that the Veteran’s post-service occupations included working in shipping and receiving, delivery and truck driving and there was no medical documentation of back problems between his separation and 2005. Initially, the Board notes that the competent medical evidence shows that the Veteran has current diagnosis degenerative arthritis of the spine, which is a “chronic disease”, and as such, it is subject to presumptive service connection. However, no competent medical evidence shows that the Veteran’s lumbar spine arthritis manifested to a degree of 10 percent within one year after separation from service. The service x-ray of lumbar spine was normal in 1997 and private x-ray lumbar spine records dated in July 2006 and November 2006 only show findings of anterior lumbar interbody fusion, status post lumbar spine surgery. Rather, the first x-ray evidence arthritis of the spine was not shown by until 2017, which comes decades after separation from active duty. The Board has also considered lay statements of low back pain during service and since his period of service. The Veteran’s statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. Although the record reflects the in-service back injury and complaints of low back pain, the Veteran’s reports of continuous post-service symptoms are not supported by the medical evidence of record. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board finds that the VA examiner’s opinion more probative as it is consistent with the medical evidence of record where there is no evidence of degenerative arthritis or chronic low back disability, until seven years after separation from service and following post-occupation in truck driving. To the extent that the Veteran asserts that the in-service symptoms were manifestations of degenerative arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge of the musculoskeletal system and interpretation of diagnostic test results. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In light of the foregoing, the Board finds that the preponderance of the evidence is against the presumptive theory of entitlement. Service connection is not warranted for the back disability under the “chronic disease” presumptions. See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Service connection for the Veteran’s current lumbar spine disorder may still be granted on a direct basis. The remaining question for the Board is whether the Veteran’s current disability is at least as likely as not related to his in-service back injury. See 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the Board concludes that the preponderance of the evidence weighs against such a finding. Again, in the August 2017 VA examination report with the March 2019 addendum medical statement, the VA examiner opined that the Veteran’s current lumbar spine disability was less likely as not related to an in-service injury and complaints of low back pain. The rationale was that there was no evidence of degenerative arthritis or disc herniation during service, and there was no medical evidence of back problems between separation and 2005. The Veteran has suffered a musculoskeletal injury which was considered resolved without residuals given his normal spine evaluation at separation and lack objective continuity of care after service until 2005. In the March 2019 addendum, the VA examiner specifically considered the private neurosurgeon’s statements and the Veteran’s lay statements; however, found that the evidence of record did not support a link between current lumbar spine disorder and in-service back injury. The Board acknowledges that the record contains a conflicting private medical opinion that the Veteran’s current lumbar spine disorder is related to an in-service back injury. However, the private neurosurgeon’s opinion is assigned little to no probative value as it was based on an inaccurate reported medical history. As discussed above, the February 1997 service treatment record shows that the Veteran specifically denied any “popping” or “cracking” at the time of the in-service injury and the 1997 service x-ray of the lumbar spine was within normal limits and there was no indication of disc herniation at that time. These service treatment record findings are in strict contrast to reported medical history upon which the private neurosurgeon’s opinion was based, and as such, the opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Conversely, the Board affords the VA examiners’ opinions, when considered together, significant probative value as they reflect consideration of all relevant facts, to include the Veteran’s competent lay statements regarding the in-service injury and in-service and post-service treatment records. They also provide a detailed rationale for the conclusion reached. The VA examiners’ opinions are more probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a lumbar spine disorder and there is no doubt to be otherwise resolved. As such, the appeal is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.