Citation Nr: 20032382 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 17-49 755 DATE: May 7, 2020 ORDER The issue of entitlement to service connection for a low back disability is denied. FINDING OF FACTS 1. Service treatment records (STRs) do not show the presence of a continuing low back disorder during service, and such disorder is not demonstrated in the years following service. 2. Back pain was first objectively shown in 2003; at that time a history relating it to service was not shown. Complaints of back pain were noted in 2012, and after a motor vehicle accident in 2013. Arthritis was first shown many years after service separation. 3. The Veteran failed to report for an examination, has not reported good cause for failure to report, and has not indicated a willingness to report should an examination be rescheduled. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1953 to June 1956. The Veteran testified at a Board hearing in June 2019. A transcript is on file. The Board remanded the issue for further development in October 2019. The case has now been returned to the Board for appellate review. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012). Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a) (2019). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2019). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within 1 year after separation from qualifying service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for a low back disability. Review of the Veteran’s STRs reveals he was treated for injuries to his ribs, shoulder, and left wrist following a fall in March of 1955. X-rays were interpreted as negative. He was provided with an ace bandage. He was found “okay” for duty about a week after the fall, and continued to be evaluated, with some treatment provided, through the end of the month. No treatment for the back was reported and a history of back problems was denied at separation examination. Examination of the back revealed no abnormality at separation. The record shows no complaints or back problems for many years after service. The Veteran has testified that he started getting some treatment about a year after he left service, but most of those physicians are dead or retired and records would not be available. He testified that he did not know in those years that he could seek VA treatment. During the hearing it was requested that a new, more complete examination be conducted. The Board reviewed the record, including the May 2017 examination, and concluded that the exam might not be fully adequate for rating purposes as the Veteran’s report of back problems since service was not fully discussed by the examiner. Arthritis was found, but not attributed to service, as there was no reported evidence of back pathology until 2003. Chronic back impairment was noted following a 2013 motor vehicle accident. As such, and in view of the request at the hearing, it was concluded that additional examination might be to the Veteran’s advantage. It was also determined that there might be records available. Since the October 2019 Board remand, VA treatment records dating back to 2001 were obtained. A review of these records indicate that the Veteran first complained about chronic back pain in June 2012. This shows that the Veteran had chronic low back pain prior to a motor vehicle accident in February 2013. Interestingly, the Veteran did not mention any back pain to VA clinicians prior to 2012, though the private treatment records submitted by him indicate that he was diagnosed with and treated for lumbar disc syndrome with lumbar neuralgia/neuritis and lumbar sprain/strain with lumbar joint dysfunction and subluxations by a private clinician in 2003. Significantly, at no time, either at the time of the private treatment in 2003, or at any time during the period prior to the accident in 2013, did the Veteran provide a clinical history of back pain related to service. As noted, it was concluded after the hearing, that additional examination and opinion might be in order, so such was scheduled pursuant to remand. The Veteran failed to report for the examination. He was notified of the failure to report in the supplemental statement of the case. He has not contacted the VA providing good cause for the failure to report, and has not indicated a willingness to report. As such, the Board will have to make its decision on the evidence of record. 38 C.F.R. § 3.655. An August 2019 VA treatment record indicates that the Veteran stated to the treating clinician that he had longstanding, intermittent back pain since the injury in service, where he slipped on oil and fell off the wing of a plane from a height of 7 feet and injured his wrist and back. At a June 2019 Board hearing, the Veteran testified that he fell and landed on the back, which separated his ribcage and severely hurt wrists. He also testified that he had a treatment a year or so after getting out of service at a private facility for his back and the back started bothering since then. The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is noted, however, that while the Veteran may report symptoms, he is not competent to make a nexus opinion as to current back pathology and the in-service incident. Further there is no competent medical opinion that makes that connection. While the Veteran now reports a long history of back pain since approximately 1 year after service, this is not otherwise supported or confirmed by the other evidence of record. The STRs contemporaneous with the fall do not show there were complaints or treatment for back problems. At examination for separation, no pertinent complaints were made and all physical findings were reported as normal. The first clinical evidence of back pain is reported in private treatment records in 2003. At that time there is no history provided that this had been a continuing problem dating back years to service, nor is there history of years and years’ worth of other treatment. Thereafter, the VA records from 2001 to 2012 make virtually no reference to a continuing back problem. Repeatedly in those records, showing treatment for multiple other complaints and disorders, the review of symptoms fails to report back problems. It is not until after the motor vehicle accident in 2013 that there are frequent and continuing complaints of back problems. Finally, arthritis was first found in the low back many years after separation from service, and it is not otherwise shown to have been related to service. Overall, the Board concludes that a preponderance of the evidence is against the claim. As such there is no reasonable doubt raised and the claim is denied. 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, Associate 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.