Citation Nr: 20032897 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-12 633 DATE: May 12, 2020 ORDER Entitlement to service connection of a lumbar spine disability, to include degenerative arthritis of the spine and intervertebral disc syndrome, is denied. FINDING OF FACT The Veteran’s lumbar spine disability did not have its onset in service, degenerative arthritis was not manifested to a compensable degree within one year of service discharge, and a lumbar spine disability is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability, to include degenerative arthritis of the spine and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for 26 years from November 1959 to November 1985. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2020. The Veteran is represented by the Military Order of the Purple Heart, who was not present at the hearing, and the Veteran was willing to testify without his representative present. A transcript of the hearing was prepared and has been associated with the Veteran’s claims file. During the Board of Veterans’ Appeals (Board) hearing, the Veteran had mentioned treatment in the early 1990s at the Randolph clinic and Fort Sam Houston. The undersigned thought that these records were not in the file and agreed to leave the record open for 30 days in order to allow the Veteran to submit additional evidence in support of the appeal, which included the treatment records from the 1990s. Within the 30 days, the Veteran submitted additional evidence comprised of statements from his wife and daughter. He also wrote a note to the undersigned explaining that he was unable to find the medical records that were discussed at the hearing. The Board very much appreciates the Veteran’s efforts. In reviewing the record again, the undersigned found the records that were discussed at the hearing. The undersigned apologizes for the oversight. Thus, these records are in the file and have been reviewed in connection with the appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of active service, certain chronic diseases, such as arthritis, that become manifest to a degree of 10 percent or more within one year after the date of separation from such service, shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Veteran stated that in 1966, while he was stationed in Spain, he hurt his back while he was working on a staff car. He then went to a two-man clinic, as there was not a hospital where he was stationed. He stated he was bedridden for two weeks after that. He reported that, subsequently, he had a vehicle accident while stationed in Vietnam. He stated that he was sore all over after the accident and went back to the hospital with pain in his lower back two days later. However, he was told to “go back to work,” and noted there was no mention of this in his records. During the Board hearing, the Veteran testified that he worked on snowplows and had to change the cutting blade on the plow, and over a couple of years, his back started hurting, but he never went to sick call because that was taboo. After he got married in 1967, he was working on a staff car and something popped. He went to the clinic, but they did not do an examination or x-rays. He stated that, instead, they sent him home for a week or two. He said his back still hurt but he never went back to sick call. The second incident occurred in Vietnam. He explained that he had a jeep rollover accident and his entire body ached, but when he went to the hospital, the only thing that really hurt was his shoulder where the seatbelt was. He also said that he had a cut on his neck. Then the next day, his back started hurting again and he went back to the hospital and that doctor told him, “Go back to work.” The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a lumbar spine disability. The reasons follow. As to evidence of a current disability, a May 2018 VA examination report shows that the Veteran was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. Therefore, the Veteran meets first element of a service-connection claim. As to an in-service disease or injury, service treatment records show that the Veteran experienced pain in the lumbar spine during service. For example, an October 1966 record shows the Veteran complained of cramping pain in his right mid-back. He described that the condition started while he was sitting in a staff car. Thus, to the extent that the Veteran complained of pain in his mid-back, the in-service disease or injury element is found to be met. However, the Board has gone through all the service treatment records and finds that the preponderance of the evidence is against a subsequent disease or injury involving the low back/lumbar spine and/or a lumbar spine disability having its onset during service. For example, after the October 1966 report of pain in the mid-back, the Veteran did not seek treatment or complain of a back injury, disease, or pain for the remainder of his service, which was 19 years. A May 1967 Report of Medical Examination shows that clinical evaluation of the spine was normal. In the May 1967 Report of Medical History, the Veteran wrote, “as far as I know, [I am in] good health.” He specifically denied ever having or having then arthritis or rheumatism; bone, joint, or other deformity; and lameness. He also denied having an illness or injury other than those noted in the document. Thus, less than one year after the October 1966 report of mid-back pain, the Veteran was not reporting pain in his lumbar spine. The service treatment records show that, in March 1971, the Veteran was involved in a vehicle accident. Within this treatment record, the examiner documented that the Veteran complained of soreness in his left shoulder and right thigh. The examiner wrote that the Veteran had a three-centimeter laceration on his neck that received a suture. This treatment record does not support the Veteran having sustained an injury to his low back or that he had low back pain at that time; otherwise, it would have been documented in this record, as the examiner provided specific reports from the Veteran regarding soreness in the left shoulder and right thigh. Thus, when the Veteran had the opportunity to report low back pain in March 1971, he did not to do so. The Board finds that this record is highly probative to the extent that the Veteran’s injuries at the time of the March 1971 vehicle accident involved the left shoulder and right thigh with a laceration on the superior/anterior neck and did not involve the low back/lumbar spine. This conclusion is supported by November 1976 and July 1981 Reports of Medical Examination, which showed normal clinical evaluations of the Veteran’s spine. These examinations were performed approximately five years and 10 years after the 1971 vehicle accident. Further, in June 2000, when the Veteran was seen for low back pain, he specifically denied a history of trauma, which would further support the finding that the Veteran did not injure his low back at the time of the March 1971 vehicle accident. (He also denied low back trauma in the past in 2005.) Therefore, the Board finds as fact that there was no low back/lumbar spine injury from the 1971 vehicle accident, and the Veteran’s allegation of having sustained an injury to his low back/lumbar spine at that time is not credible. The Board is aware that there are other complaints of pain in the service treatment records that involve the back; however, from reading these treatment records, they are not about the lumbar spine but rather non-musculoskeletal symptoms and appear to be associated with drinking. For example, in December 1975, the Veteran reported that he had abdomen pain for the past three days that radiated through to the back following a holiday party in which he ingested “considerable amounts of alcohol.” The examiner noted that the Veteran had similar pain in the past and had been hospitalized with acute pancreatitis that was attributed to alcohol ingestion. The December 1975 doctor diagnosed the Veteran with acute pancreatitis that was “presumed to be [due to] alcohol.” In January 1985, the Veteran was seen with a complaint of mid-epigastric pain associated “with mid[-]lumbar pain.” The examiner documented that the Veteran reported drinking multiple beers in the afternoon and again in the evening. The clinical findings from the physical examination were about the abdominal pain, and the Veteran was diagnosed with chronic relapsing pancreatitis. Thus, while the evidence demonstrates that the Veteran experienced pain in the lumbar region associated with his pancreatitis, it was not documented to be lumbar spine musculoskeletal pain that would be associated with a disease or injury involving the lumbar spine. To reiterate, the Board finds that there was a one-time complaint of pain in the mid-back in October 1966. However, to the extent that the Veteran has reported an injury to his lumbar spine in March 1971, the Board finds that the preponderance of the evidence is against a lumbar spine disease or injury after the October 1966 complaint. While the Veteran has reported he did not go to sick call because that was taboo, the service treatment records show that the Veteran was seen on a regular basis for multiple medical complaints throughout his period of active duty. Thus, the Board finds that allegation not credible since the Veteran was seen regularly for various medical concerns and complaints throughout service. As the Veteran complained of pain in his lumbar spine in October 1966, the Veteran meets the second element of a service-connection claim of evidence of a disease or injury during service. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against such a nexus. The evidence of record does not demonstrate that the Veteran’s symptoms have been continuous since separation from service in November 1985. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). For example, from 1989 to 1996, the Veteran was seen and treated for multiple medical complaints, such as ear, nose, and throat, pain with deep breaths, eye complaints, rash on the left elbow, left arm numbness, neck pain, and other medical complaints. During this timeframe, the Veteran did not complain of lower back pain. The Board is aware that the Veteran reported “back pain” within some of these records, but it is clear that the Veteran is talking about his cervical spine. For example, the examiner wrote that the Veteran was complaining of a pinched nerve “in back” and that the Veteran had pain in the “back & [right] arm.” The examiner noted that the Veteran had been seen previously for radicular pain in the right upper extremity and that “c-spine” x-rays showed degenerative disc disease at C6-C7. The clinical findings within this treatment record relate to the cervical spine. The treatment records from 1989 to 1996 showing treatment for multiple medical complaints but not low back/lumbar spine complaints tends to show that the Veteran was not having ongoing low back pain in the years following service discharge. Additionally, there is a June 2000 record that shows the Veteran complaining of back pain for one year and pain in his legs for three months. The examiner documented that there was no history of trauma, and that the Veteran reported this pain was worse with working. Thus, this shows the Veteran reporting an onset of low back pain starting in 1999, which is approximately 14 years following service discharge and does not support a nexus to service. The Board finds this document particularly probative, as a medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). This shows that the Veteran did not report the onset of his lumbar spine pain as occurring during service, but the onset occurring approximately 14 years after service, which is evidence against a nexus to service. The Veteran’s report that the onset of his low back pain began one year prior is reliable for three reasons. One, as stated above, he reported it while seeking treatment. Two, it is consistent with what the evidence shows, which is that the Veteran was not reporting low back pain in service after the 1966 incident. Three, it is consistent with the post-service treatment records, which show that the Veteran was not seeking treatment for low back pain in the years following service. Of record are treatment records beginning in 1989, and the Veteran was seen for neck pain, a mole, numbness in his left arm, neck pain, rash on the left elbow, otitis externa, eye complaints, pain in the rib cage, and other medical complaints, and the first time he sought treatment for his low back was in 2000 and reported an onset of such pain for one year. These facts show that the Veteran was not having ongoing low back pain until approximately 14 years following service discharge. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. There are subsequent records in the file showing various onset dates of the lumbar spine symptoms. For example, in June 2002, the Veteran reported a 20-year history of back pain, which would place the onset in approximately 1982, which is while the Veteran was still in service. In August 2005, he reported lower back pain for 15 years, which would place the onset in approximately 1990. At that time (August 2005), when the examiner addressed “physical trauma,” the examiner wrote, “No lower back trauma.” As laid out above, the Board finds that the onset of the Veteran’s lumbar spine symptoms occurred in approximately 1999, as stated by the Veteran at the time he was treated for such symptoms in June 2000. Again, such report is consistent with the service treatment records and the post-service treatment records, which show multiple medical complaints for decades after 1966 without complaints involving lumbar spine musculoskeletal pain. In an October 2014 letter from Donald P. Atkins, M.D., he wrote he believed that the Veteran’s low back condition was service connected. He stated that the Veteran’s low back pain started after a jeep rollover accident in Vietnam. Dr. Atkins added that the degenerative pattern to the Veteran’s low back and ultimately the development of spinal stenosis resulting in surgery and his current disability typically stems from various accidents and the manual labor and physicality that is typically seen over a career of military service. Dr. Atkins noted that it is often very difficult to find other supportive documentation in the service person’s military record at the Veteran’s age. A September 2015 statement from Joel W. Jenne, M.D., shows he attributed the Veteran’s back symptoms to the motor vehicle accident while in Vietnam and the manual labor associated with the Veteran’s duties throughout his service. Dr. Jenne wrote that it sounded like the Veteran was still in the appeal process trying to get this condition service connected. The Board finds that the submissions from Dr. Atkins and Dr. Jenne are not probative. They are both based on an inaccurate factual premise, which is that the Veteran’s low back was injured in the 1971 vehicle accident, which the Board has explained above is not credible. Medical opinions based on an inaccurate factual history have no probative value. Additionally, Dr. Jenne did not provide a medical opinion as to the Veteran’s lumbar spine disability. Instead, Dr. Jenne wrote that the Veteran attributed his back symptoms to service. Therefore, these statements by medical professionals do not assist the Veteran in his claim for service connection for a lumbar spine disability. The Veteran was afforded a VA examination in May 2018. The examiner concluded that the Veteran’s lumbar spine disability was less likely than not incurred in or caused by the motor vehicle accident or an event in service. The examiner reviewed the Veteran’s service treatment records and saw there were no records in service that show a history of chronic lower back pain. Specifically, he noted an October 1966 medical record showed a complaint of cramping right mid-back pain that started while sitting in staff car. Additionally, the examiner noted a May 1971 medical record that showed no complaint of back pain but only the left shoulder, right thigh, and laceration to superior anterior neck. The examiner also noted that Reports of Medical Examination after the accident showed no complaint of lower back pain or any visit for lower back pain. The examiner also noted that post-service records from 2002 show intermittent back pain with radiologic evidence of degenerative disc disease and arthritis consistent with the normal aging process of the spine. The Board finds the medical opinion from the May 2018 VA examiner both competent and credible. Therefore, the Board finds the medical opinion by the VA examiner to be highly probative. The examiner clearly reviewed the record and explained his conclusions by citing to the evidence in the record. As the conclusion reached by the VA examiner is the same conclusion the undersigned reached when reviewing the record, which was that the Veteran was not having lumbar spine problems during service after the 1966 incident and was not having lumbar spine problems in the years following service discharge to establish chronicity. The May 2018 medical opinion is evidence against a nexus between the current lumbar spine disability and service. To the extent that the Veteran’s wife has stated that the Veteran has had low back problems since she met him in 1963, the Board finds that what is documented in the service treatment records and post-service treatment records is more probative as to the symptoms the Veteran was experiencing contemporaneously with the time period in question. The Veteran was seen regularly during service and in the years following service for multiple medical complaints, and treatment for lumbar spine complaints was not documented, and when it was first documented, the Veteran reported the onset of such pain as starting in 1999. The Board is aware of the Veteran’s contentions, as well as those contentions written by his wife and daughter, that the Veteran’s current lumbar spine disability is a result of his time in service. However, the Veteran, his wife, and daughter are not competent to offer opinions as to the etiology of his current lumbar spine disability. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran, his wife, and daughter’s opinions are nonprobative evidence. At the present time, there is no competent and credible evidence that the Veteran’s lumbar spine disability had its onset in service, manifested within one year following service discharge, or is otherwise related to service. The undersigned truly searched through the claims file to see what the evidence showed and did not find that the evidence supported a finding that a lumbar spine disability was related to service. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include degenerative arthritis of the spine and intervertebral disc syndrome. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.