Citation Nr: 20007076 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-29 021 DATE: January 28, 2020 ORDER The claim for service connection for a lower back condition is denied. FINDINGS OF FACT 1. A lower back condition present during the claim period developed after service and is not causally related to service. 2. The Veteran developed arthritis of the lower back years following service and it is not causally related to service. CONCLUSION OF LAW The criteria for claim for service connection for a lower back condition have not been met. U.S.C. §§ 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (a), (b), 3.307, 3.309(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1976 to March 1980. The Department of Veterans Affairs is grateful for his service. At the October 2019 Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge, the Veteran’s authorized representative requested that the record be held open for 60 days to afford the opportunity to submit additional evidence. That interval having elapsed without any additional submissions beyond a Congressional query, the Board now proceeds with its adjudication. Claim for service connection for a lower back condition The Veteran contends, in effect, that he developed his current low back condition in service. The Board concludes that the preponderance of the evidence is against finding that a current lower back condition developed in service and that arthritis of the lower back developed within the first post-service year. The Board accordingly denies the claim. Its decision is explained below. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term “chronic disease” refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, 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). Service treatment records show three isolated treatments for back symptoms. In January 1976 the Veteran was seen for back ache, and this was assessed and treated as a muscle strain. There is no record of follow up-care. The Veteran was seen in December of either 1976 or 1978 (the date on the record is not clear) for a complaint of lower back pain over 24 hours after lifting bombs the day before and swabbing the deck the night before. Objectively there was localized pain on palpation to the L-4 area, which the treating clinician assessed as muscular and bilateral to the spine. There was no paresthesia and minimal pain with raising legs and bending knees, with good reflexes, and pain increased with spine flexion. Lower lumbar muscle strain was assessed and conservatively treated with medication, heat, rest, and three days of light duty. There is no record of follow-up care. The Veteran was also seen in January 1977 for a complaint of back pain after lifting bombs. This was also assessed and treated as muscle strain. There is no record of follow-up care. The Veteran’s February 1980 service separation examination reflects no back disability. There are no records of any treatment for back disability for decades following service. At an October 2019 videoconference hearing before the undersigned Veterans Law Judge, the Veteran testified to handling missiles and bombs daily and reported that these bombs weighed on average 500 pounds. He testified to continual back problems since service with treatment over the years, though with his first treatment at VA in 2011. The Veteran was afforded a back examination in September 2015. His claims file was reviewed, and a history was noted of diagnosis of degenerative disc disease of the thoracolumbar spine in December 2013. The Veteran reported a history of developing lower back pain over time, first being seen in service and continuing with intermittent flare-ups of pain approximately one to two times per week. He reported that the condition had worsened over time so that currently he had daily flare-ups of lower back pain at 8 to 10 out of 10 intensity, with flare-ups related to activities and body posture. The examiner observed the Veteran to walk normally but with a slight limp on the right. The examiner reviewed service treatment records reflecting three visits in service for diagnosed lower back muscle strain. At the September 2015 examination, the Veteran demonstrated full thoracolumbar range of motion except for left and right lateral rotation limited to 20 degrees, where 30 degrees was considered normal. Pain was noted on examination which did not cause functional loss. There was also tenderness to palpation of the thoracolumbar paraspinal musculature. Radicular pathology and intervertebral disc syndrome were not found. X-rays revealed scoliosis distorting the lumbar vertebrae. Significant degenerative changes were seen on x-ray at L5-S1 with minimal retrolisthesis at that level. The examiner assessed degenerative disc disease at L5-S1, with minimal retrolisthesis unchanged. The September 2015 examiner opined that the Veteran’s current back condition was not at least as likely as not incurred in or caused by in-service injury, event or illness. The examiner explained that service treatment records, from his service period from March 1976 to March 1980, showed treatment for lower back muscle strain, and it was more likely than not that the Veteran’s degenerative disc disease of the lumbar spine was “associated with or caused by progression of the aging process and is not related or caused by soft tissue injury (strain/sprain) that occurred during military service.” The Board observes that while the Veteran contended at his September 2015 examination that he had weekly flare-ups of low back pain once or twice weekly from service and progressing to daily flare-ups of pain, this is not reflected in prior VA treatment records including for lower back pain, where such a history would be expected to be expected to be reported. The claims file contains a record of initial VA treatment in August 2010 with primary care enrollment evaluation, whereupon the Veteran reported a history of illnesses as well as current conditions. These included a number of illnesses, but arthralgias, myalgias, joint pains/swelling/ stiffness, and weakness were not among them, with the Veteran then explicitly denying a history of such conditions and denying any current pain. This self-reported history and evaluation showing no history of painful joints and no current painful joints contradicts the Veteran’s report at his September 2015 examination of ongoing and progressive lower back pain. The Board finds the Veteran’s self-report at the August 2010 primary care enrollment evaluation to be more credible than his self-reported history at the September 2015 examination, because in the former he was motivated to provide an accurate history and symptoms in order to receive appropriate care for conditions that needed such care, whereas at the September 2015 examination his motivations were directed at seeking benefits, and hence were motivated toward providing a pro-benefit history rather than simply an accurate history. The history provided at the August 2010 visit is also consistent with that provided at subsequent treatment records, as discussed below, whereas the history as reported at the September 2015 examination is not. Because the Board finds the August 2010 history to be the more credible, the Board finds the contradicted September 2015 history and similar history as provided at his October 2019 hearing not credible with respected to his report of an ongoing and progressively symptomatic condition of the lower back from service to the present. Other treatment records also support this conclusion. The Veteran was seen at VA in May 2011 with complaints of lower back pain, and a provisional diagnosis was then assigned of lumbar degenerative joint disease or a lumbosacral intervertebral disc condition. The Veteran was fitted with a sacro-lumbar support. However, it does not appear that he thereafter sought regular care for his lower back. The Veteran also did not then report a history of chronic or recurrent lower back pain or disability. The Veteran complained of chronic pain in January 2012 in the context of a nursing check-up during VA in-patient treatment. The Veteran then reported that he had chronic low back pain of 9/10 severity, but this was in the context of an in-patient treatment for cocaine abuse, and the Veteran reported complete relief from the pain with prescribed Methocarbamol. The Veteran was seen at VA in December 2013 for lower back and right shoulder pain, with the lower back pain radiating down the left buttock and left leg. The Veteran then provided a history of the lower back pain being present for one year, though worsening over the past weekend. This history of lower back pain for one year also contradicts the Veteran’s current narrative of an ongoing and progressively painful lower back beginning from service. X-rays were then obtained reflecting scoliosis of the five lumbar vertebrae and significant degenerative changes at L5-S1 with narrowing of the posterior L5-S1 disc, with minimal retrolisthesis. The Veteran presented at the VA emergency room in August 2014 complaining of lower back pain, reporting that he had a history of degenerative joint disease of the lower back which was aggravated after bending the wrong way a few days ago. He then received conservative treatment, inclusive of prescribed use of a heating pad as needed for comfort, Diclofenac, Tramadol, stretching, and range of motion exercises. The Veteran was then instructed to return to primary care if his low back condition did not improve. A VA treatment record in February 2015 informs that the Veteran did not return for care after that ER visit, and that he did not appear for a scheduled follow-up visit in December 2015. If, as the Veteran now contends, he had flare-ups of pain one or two times weekly from service with increasingly frequent flare-ups up to daily flare-ups currently, it hardly seems likely that he would have suddenly sought care at an emergency room in August 2014 for the appearance of lower back pain, or that he would not have returned following that ER visit if his condition thereafter worsened. It also seems unlikely that the Veteran would not have reported a history of ongoing lower back difficulties or a past diagnosis of degenerative joint disease when seen in May 2011 if he had had these conditions prior to May 2011. It appears far more likely, based on this documented history, that the lower back pain precipitating the May 2011 visit reflected a newly troublesome condition, and the December 2013 treatment and August 2014 emergency room visit were for unusual occurrences of lower back pain, thus undermining the Veteran’s self-reported history given at the September 2015 examination and in hearing testimony of a chronic and ongoing symptomatic lower back condition from service to the present with recurrent symptoms once weekly or more frequently and eventually daily. The more credible evidence supports no such ongoing history, including failure to report such a long-standing history upon VA primary care enrollment evaluation in August 2010, upon VA initial treatment for lower back pain in May 2011, and upon VA treatment in December 2013. While the Veteran reported a history of lower back pain upon his emergency visit in August 2014, this may have reflected only a symptomatic lower back since May 2011. The Board rejects as not credible, inconsistent with more credible prior statements of record, the Veteran’s currently reported history of ongoing weekly and progressing to daily low back pain from service to the present. The Board is accordingly left with a history – as reflected by the August 2010 primary care enrollment evaluation and the interval of multiple decades without any record of care for the lower back – which appears to reflect absence of any ongoing back condition for many years until the Veteran developed a symptomatic back condition in 2011, following which he eventually filed his claim. This is consistent with the findings and conclusions of the September 2015 examiner. The examiner’s findings and conclusions are accordingly consistent with and supported by the weight of competent and credible evidence of record, to the effect that the Veteran had three documented instances of lower back soft tissue injury (strain or sprain) in service for which he received treatment in service, and he now has a lower back condition with degenerative changes and degenerative disc disease at L5-S1 unrelated to the lower back strain in service. The Board finds the VA examiner’s opinion to be well-supported by the record and by the rationale provided, that the Veteran’s degenerative lower back condition is consistent with progression of the aging process and is not associated with soft tissue injury many years earlier in service. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran’s current lower back condition having developed in service or otherwise being causally related to service, and is against any arthritis of the lower back having been present within the first post-service year (arthritis of the lower back not being supported at that time). 38 C.F.R. §§ 3.303, 3.307, 3.309. Because the preponderance of the evidence is against the claim, the benefit of the doubt   doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.