Citation Nr: 20028020 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 13-25 376 DATE: April 21, 2020 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a chronic disability manifested by nerve pain in both legs, to include as secondary to a low back disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s low back disability, best characterized degenerative arthritis, degenerative disc disease and herniated nucleus pulposus of the lumbar spine, began during active service, or is otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran has a chronic disability manifested by nerve pain in both legs which began during active service, or is otherwise related to an in-service injury or disease, or is proximately due to, or aggravated beyond natural progression by, service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a chronic disability manifested by nerve pain in both legs, to include as secondary to a low back disability, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1976 to May 1979. These matters comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were initially before the Board in July 2017, when the Board denied the claims. The Veteran appealed the Board’s denial of the claims to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2018, the Court granted a Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board’s decision, and remanded the case to the Board for readjudication consistent with the JMR. Specifically, the May 2018 JMR found that the Board erred by failing to provide an adequate statement of reasons or bases for its factual determination that the Veteran’s Social Security Administration (SSA) records were not relevant to the claims. Pursuant to the May 2018 JMR, the Board remanded the claims in November 2018 to obtain the Veteran’s SSA records, which were subsequently obtained and associated with the record in April 2019. Thus, there has been substantial compliance with the Board’s prior remand directives as well as the May 2018 JMR and Court Order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters now return for appellate review. In October 2016, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claim file. Additionally, since the most recent January 2020 supplemental statement of the case, issued for the appeal herein, additional new evidence in the form of a private medical records were submitted by the Veteran in February 2020. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the Veteran’s substantive appeal was filed after February 2, 2013, and the record reflects the entirety of additional evidence was submitted by the Veteran, thus the Board may proceed with appellate review. In a March 2020 Informal Hearing Presentation, the Veteran’s representative argued that the most recent January 2020 Supplemental Statement of the Case (SSOC) was unintelligible and the decision was “no better than that which led the Court of Appeals of Veterans’ Claims to grant a Joint Motion for Remand and to vacate and remand the case to the Board for further development.” The Veteran’s representative specifically argued that there was no discussion of what evidence was missing or even which element(s) of service connection had not been satisfied, such that the Veteran could not be expected to respond to a vague and undefined denial, and a further remand was clearly in order. The Board has carefully considered, but cannot agree with, the Veteran’s representative assertions that the January 2020 SSOC is inadequate. A SSOC is a document prepared by the AOJ to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior SSOC. 38 C.F.R. § 19.31(a). Here, the pursuant to the May 2018 JMR and resulting November 2018 Board remand, the January 2020 SSOC specifically noted the Veteran’s treatment records from SSA, received in April 2019 and VA treatment records, from December 2016, to January 2020, showed signs, symptoms and treatment for the disabilities at issue on appeal, but did not support entitlement to service. Specifically, the January 2020 SSOC noted the medical evidence still did not support that the Veteran currently suffered from the cited conditions that began in or were caused by military service, were secondary to a service-connected disability, or showed the cited disabilities with compensable symptoms within one year of discharge from military service. Accordingly, the Board finds the January 2020 SSOC adequate and remand is not warranted. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for disability on a direct-incurrence basis resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. The three-element test for direct-incurrence 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). 1. Entitlement to service connection for a low back disability The Veteran has asserted he has low back disability that is due to an in-service injury. Specifically, in October 2016 testimony, and in other statements, he explained that he was involved in a motor vehicle accident in February or March 1977 in which he injured his back. Further, also of record are statements from his brothers as well as M. S., dated in January 2010 and October 2010, which documented the Veteran was involved in a motor vehicle accident during his service. The initial question for the Board is whether the Veteran has a current low back disability. In this regard, a June 2016 VA examiner endorsed a diagnosis of degenerative arthritis of the spine. Additionally, the Veteran’s private medical records, including those dated proximate to the appeal period, reflect consistent diagnoses of lumbar degenerative disc disease and herniated nucleus pulposus of a lumbar disc. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, the Veteran is acknowledged to have low back disability, best characterized as degenerative arthritis, degenerative disc disease, and herniated nucleus pulposus of the lumbar spine. The next issue before the Board becomes whether any such back disability is as a result of his active service, manifested to a compensable degree in service or within an applicable presumptive period, whether continuity of symptomatology has existed since service, or whether he has a back disability which is otherwise shown to be etiologically related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has degenerative arthritis of the lumbar spine, which is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a), it has not been shown to have manifested to a compensable degree within the presumptive period, nor has continuity of symptomatology since service been established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In this regard, the weight of the evidence demonstrates that symptoms of the Veteran’s degenerative arthritis of the lumbar spine have not been continuous since service and that his assertions of low back pain during and since service are largely not credible. Specifically, in a February 2010 statement, the Veteran reported, in part, that since the car wreck in 1977 and the week, maybe more, he spent in the hospital, he had been living in pain; however, the pain got a lot worse when he was 24 years old. The Veteran is certainly competent to describe the extent of his current symptomatology and the continuity of perceivable symptomatology from service onward, as related to his low back disability. See Layno v. Brown, 6 Vet. App. 465 (1994). However, his assertions of continuity of symptomatology are largely not credible as they are undermined by the absence of any report of symptomatology, including back pain, until many years after separation from service, as well as objective evidence of record to the contrary. In this regard, consistent with the Veteran’s testimony of an in-service back injury, the record demonstrates in-service complaints related to the Veteran’s low back. Specifically, a March 10, 1977 service treatment record noted, in part, the Veteran had road burns on four percent of the lower back and that he was at a civilian hospital for medical treatment on March 4, 1977. A March 28, 1977 service treatment record noted they were still waiting results from a civilian hospital. Additionally, a September 1977 service treatment record noted the Veteran complained of a backache when bending forward and when sitting in a chair. An October 1977 service treatment record documented, in part, history of a fracture to the spine and that light duty was continued. However, thereafter, a November 1977 service treatment record, in part, cited to x-ray results and documented a normal examination of the lumbar spine. A January 1979 service treatment record noted a complaint of low back pain when bench pressing 140 lbs. and provided an assessment of lumbar muscle strain and a May 1979 service treatment record provided an assessment of muscle spasms. However, there is no objective evidence that the complaints documented in the January 1979 or May 1979 service treatment records were related to the March 1977 car accident or that such pain was chronic since March 1977. Moreover, an April 1979 in-service examination, conducted in conjunction with the Veteran’s separation from service, found, in pertinent part, the Veteran’s spine, other musculoskeletal system, as relevant to a low back disability, was clinically normal upon examination, which weighs against a finding continuity of symptomatology. In this regard, Board finds that if the Veteran had experienced continuous low back disability, or related pain, while in service, it would have been reasonable for him to have reported during the April 1979 examination. Further, as discussed above the Veteran’s service treatment records do not reflect the existence of a chronic low back disability as related to a March 1977 motor vehicle accident. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Further, while recognizing the Veteran’s report that he has experienced continuous low back related symptoms, including low back pain, since an in-service motor vehicle accident, such is contradicted by other evidence of record, including his own statements. In this regard, the Board observes a June 2000 private medical record documented, in part, the Veteran reported right lower back pain for the past four days and had known disc disease. A July 2007 private medical record documented, in part, the Veteran had pain in his low back since February 2007. A February 2008 private medical record documented, in part, that the Veteran reported he had a history of previous symptoms in 1977 following a motor vehicle accident and in 1980 was diagnosed with a lumbar herniated nucleus pulposus that was treated with medications. However, the February 2008 private medical record also documented the Veteran currently presented with a complaint of lower back and right hip pain for the past seven years and he stated this was a gradual onset that progressively worsened. A May 2010 private treatment record noted, in part, that Veteran reported a history of pain attributed to degenerative joint disease of the lumbar spine, and other disabilities, for the past two years. Moreover, in October 2016 testimony, the Veteran reported, in part, that from 1979 to 1985 he did not have any problems with his back. Thus, these statements weigh against the claim. Further, the Veteran’s post service medical records do not reflect back pain, related complaints, or a diagnosis thereof, until many years after separation from service. Specifically, March 1985 imaging provided an impression of partial collapse of the body of L4 that was probably old. However, this record did not provide any further context for such a finding or indicate that it was due to a 1977 motor vehicle accident injury. Further, a subsequent June 1979 private examination, obtained in conjunction with the Veteran’s employment, noted, in part, that the Veteran had had a fracture to his lower spine as result of automobile accident 1977, was in the hospital for seven days, and discharged from service (non-medical) but also noted the current movement of his spine was good, he had no limitations and was approved for work per Dr. Kalla. A June 1985 private medical record noted, in part, the Veteran enjoyed relative good health and noted that earlier in 1985 he had a strained back which responded to therapy, but during 1984 and 1983 he recalled no illnesses or physician visits. The June 1985 private medical record provided an impression a post status compression fracture in the back in 1977 but also stated no pathology was found. Subsequently, June 1991 imaging provided an impression of left lateral herniated nucleus pulposus L-4, 5, and degenerative discs at L-3, 4, L-4, 5 and L-5 S-1 Further, as noted above, March 1985 imaging the first post-service clinical evidence indicative of a low back disability. Thus, while not dispositive, the passage of so many years between the Veteran’s discharge from active service and a clinical record reflecting a low back pain in March 1985, many years after the Veteran’s separation from service, is a factor that weighs against a finding of service incurrence and continuity. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, in weighing the evidence, the Board finds the Veteran’s service medical records, which are contemporaneous to his active service, and his post service medical records, are more probative than the argument from the Veteran, that he experienced low back symptoms, including pain, during and since service, made many years after service for compensation purposes. See Curry v. Brown, 7 Vet 59 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant’s lay testimony). The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as applicable precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one factor the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, to the extent the Veteran contends he had chronic symptoms of degenerative arthritis of the lumbar spine in service, or shortly after service, and ever since, the medical and lay evidence of record does not support this contention. For these reasons, the criteria for presumptive service connection based on chronic symptoms in service, continuous symptoms since service, or that degenerative arthritis of the lumbar spine manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation, have not been met. Service connection for a low back disability may still be granted on a nonpresumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between any current low back disability and an in-service injury, event or disease, including as due to an in-service motor vehicle accident. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, a June 2016 VA examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The June 2016 VA examiner explained it was less likely than not that the Veteran’s current lumbar spine degenerative joint disease was due only to remote strains he incurred in military service years ago as those strains would have resolved years ago. The June 2016 VA examiner found it was more likely as not that his lumbar spinal degenerative joint disease had gradually occurred down through the years as repetitive stresses impacted his back as he had aged, as he became more and more physically deconditioned, and as he gained weight, and that all of these factors contributed to his bony degenerative changes. The Board recognizes the June 2016 VA examiner did not specifically address degenerative disc disease and herniated nucleus pulposus of the lumbar spine. However, this does not change the June 2016 VA examiner’s primary findings in any meaningful way, namely the opinion is based on a finding that the Veteran’s back disabilities had gradually occurred down through the years as repetitive stresses impacted his back as he had aged, as he became more and more physically deconditioned, and as he gained weight. Moreover, the June 2016 VA examiner’s findings are consistent with other evidence of record. Thus, in weighing the evidence, the Board finds the June 2016 VA opinion to have significant probative value. This opinion is probative because it is based on a review of the evidence, including the Veteran’s subjective complaints, and provided explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives significant probative weight to the June 2016 VA opinion. There is no contrary opinion of record. Moreover, the May 2018 JMR did not find the June 2016 VA opinion was inadequate. The Board also recognizes that the Veteran’s private medical treatment records variously documented the Veteran’s reported history of pain since his 1977 motor vehicle accident. For example a May 2010 SSA medical record noted, in part, that the Veteran reported he was involved in a motor vehicle accident in 1997, which the Board recognizes was a typographical error and likely meant 1977, that he was reportedly ejected from the car and stated his back hurt at that time. However, the recitation of the Veteran’s reported history of pain since the March 1977 car accident does not transform these statements into competent medical evidence as they documented the Veteran’s own reports as to the etiology of his low back disability rather than providing independent findings. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Further, no rationale was provided nor is there any indication that the Veteran’s service treatment records were reviewed or that the claims file was reviewed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran believes he has low back disability that is related to an in-service injury, he has not been shown to have the requisite medical knowledge to be deemed competent to provide a nexus opinion on this basis. This issue is medically complex, as it requires medical knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show he has the medical training or credentials to make this determination. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, the Board gives more probative weight to the June 2016 VA opinion. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a low back disability. 2. Entitlement to service connection for a chronic disability manifested by nerve pain in both legs, to include as secondary to a low back disability The Veteran contends he has chronic disability manifested by nerve pain in both legs that is due to his low back disability. In this regard, in October 2016 testimony, he reported the nerve pain in his legs began about 1985, when the first herniation appeared. The initial question for the Board is whether the Veteran has a chronic disability manifested by nerve pain in both legs that began during service or is at least as likely as not related to an in-service injury, event, or disease, as such is a greater benefit than secondary service connection. In this regard, the June 2016 VA examiner did not endorse a diagnosis but found, in part, that for each lower extremity there was no diagnosis, as to nerve pain, because there was no pathology to render a diagnosis. However, the Veteran’s private medical records, including those dated proximate to the appeal period, reflect a consistent diagnosis of herniated nucleus pulposus of a lumbar disc with radiculopathy. Romanowsky, 26 Vet. App. at 294. Thus, the Board will resolve reasonable doubt in the Veteran’s favor and find that the Veteran does have a current diagnosis of bilateral lower extremity radiculopathy. However, review of the Veteran’s service treatment records does not reflect any documentation of complaints related to lower extremity radiculopathy or nerve pain. Indeed, an April 1979 in-service examination, conducted in conjunction with the Veteran’s separation from service, found, in pertinent part, the Veteran’s lower extremities, as relevant to lower extremity radiculopathy or nerve pain, were clinically normal upon examination, which weighs against a finding an in-service injury, event or disease. Thus, for the reasons discussed above, the element of in-service disease or injury is not met. As the second element for a claim of direct-incurrence service connection is not met, the third requirement for direct-incurrence service connection, competent evidence of a nexus between this disability, and an in-service disease or injury, need not be discussed. Additionally, while the June 2016 VA examiner addressed the Veteran’s claim for a chronic disability manifested by nerve pain in both legs as secondary to a low back disability, but did not provide an opinion on a direct-incurrence basis, the standard for VA to provide an examination for this claim was not satisfied. In this instance, as discussed above, the most probative evidence weighs against any evidence of an in-service chronic disability manifested by nerve pain in both legs. Moreover, the Board reiterates that in October 2016 testimony, the Veteran reported the nerve pain in his legs began about 1985, when the first herniation appeared. Thus, a VA examination or a medical opinion for this claim on a direct-incurrence basis is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As entitlement to service connection for a low back disability was denied in the above decision, service connection as secondary to a low disability cannot serve as a basis for the grant of benefits sought here. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C.   § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Accordingly, service connection is not warranted for a chronic disability manifested by nerve pain in both legs, to include as secondary to a low back disability. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.