Citation Nr: 20034071 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 18-40 381 DATE: May 15, 2020 ORDER Service connection for a low back disorder is denied. FINDING OF FACT The Veteran’s low back disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection – Low back disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran asserts that he has a low back disorder due to an in-service injury. Service treatment records show that in August 1996 he complained of pain in the middle of his back after carrying a tarp down a three-foot drop. Examination revealed paraspinal tenderness at T5-T6 but normal strength, sensation and reflexes in the lower extremities and a negative straight leg raising test. He was diagnosed with an acute hyperextension. Three days later, he noted that the pain medication helped relieve some of the back pain and requested a refill. He was diagnosed with mechanical low back pain and referred to physical therapy. The record indicates that he did not report to physical therapy. Then, in June 1998, he complained of pain in the lower back after slipping and striking his back on the stairs. He denied numbness and tingling in the lower extremities. Examination revealed an abrasion and contusion as well as paraspinal tenderness and questionable spasm in the right middle back. He was diagnosed with a soft tissue contusion. He reported feeling a little better the next day and was told to return if symptoms or pain increased. He did not return for any follow-up treatment. He denied recurrent back pain at his June 1999 separation examination, and evaluation of the spine was normal. VA medical records starting in August 2007 show that the Veteran reported injuring his back at work the prior year and being off work for five months. He complained of spasms and a burning sensation in the right lower back radiating to the right leg. A June 2009 record indicates that he was receiving workers’ compensation for that injury. He complained of spasms and bilateral lower back pain at that time. Later records show complaints of low back pain, worse on the left, and a diagnosis of degenerative disc disease of the lumbar spine. A, and continue to reflect the history of having low back pain since the 2006 injury. Then, a March 2017 record, for the first time, reflects his report of having had recurrent low back pain since an in-service injury in 1998. At a February 2016 VA examination, the Veteran reported that his back problems started in service in 2001 when he slipped and fell while carrying a box. He noted increasing back pain over the years. He reported having constant lower back pain and that he sought private medical care in 2006 when it got worse. He stated that he could not get out of bed for six months and could not work. He stated that he is still on restrictions from the 2006 injury. He complained of constant pain in the lower back that sometimes goes down to the legs and numbness in both legs, left more than right. The examiner noted that a November 2013 MRI of the lumbar spine showed minimal diffuse disc bulge at L3-L4 and L4-L5, mild right neural foraminal narrowing, minimal central disc bulge at L5-S1, right neural foraminal narrowing, and mild narrowing of the spinal canal. In a separate report, the examiner opined that the Veteran’s low back disorder was not incurred in, or caused by, the claimed in-service injury. The examiner explained that the type of low back pain the Veteran is now having is not supportive of the symptoms he had in service. The examiner noted that the Veteran was seen in August 1996 for middle back pain and found to have tenderness in the right T5-T6 area. The examiner further noted that the Veteran was then seen in June 1998 for an abrasion on the right middle back with tenderness. The examiner noted that the Veteran was seen the next day but there are no back symptoms for remainder of his service, and the separation examination did not mention any back symptoms. The examiner stated that the Veteran’s symptoms in service were in the thoracic spine, right paraspinal area, and his symptoms now are in the lumbar spine, more on the left. The examiner observed that it appears that the Veteran had additional injuries following service. The examiner noted that review of the Veteran’s private medical records from 2006 would provide additional information. On his July 2016 notice of disagreement, the Veteran asserted that he has had recurring back pain since the in-service injury. On his August 2018 substantive appeal, he questioned the accuracy of the examination report and opinion as they were written three months after the examination and at 12:30 in the morning. Initially, while the Board appreciates the Veteran’s concern about the accuracy of the examination report and opinion, the Board observes that they are based upon notes recorded by the examiner at, or shortly after, the examination. Thus, despite the length of time that has passed, or the time of day they were written, the report and opinion remain accurate. Moreover, the Veteran did not identify any specific error, and the medical history as transcribed by the examiner is supported by the history contained in the VA medical records contemporaneous to the 2006 work-related injury. Without objective evidence of any particular error, the examination report and opinion are deemed to be accurate. The Board also notes the examiner’s comment that private medical records from the Veteran’s initial work-related injury in 2006 would provide additional information. The Veteran has not submitted those records or asked VA to obtain them. In any event, the history of the work-related injury he reported at the examination mirrors that provided to VA providers during the receipt of medical care. Thus, the Board finds that the lack of those private medical records does not reduce the probative value of the examiner’s opinion. Hayes v. Brown, 9 Vet. App. 67 (1996). Turning to the merits of the claim, while the evidence shows that the Veteran injured the middle area of his back on two occasions during service, the evidence indicates that both injuries resolved prior to discharge from service and did not result in any chronic disability. While the June 1998 injury was described by the Veteran has being in the lower back, examination revealed that the injury involved the right middle back. Regardless, he did not return for any follow-up treatment and denied having a back problem at his June 1999 separation examination. After service, there is no evidence of a low back problem until a work-related injury in 2006, or eight years after the Veteran’s discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As noted above, the evidence also indicates that the Veteran’s current low back disorder relates to a post-service injury. VA medical records since August 2007 and prior to March 2017 reflect the Veteran’s history of having low back problems since a 2006 work-related injury. He filed his current claim in December 2015. After due consideration, the Board finds that the Veteran’s history of having low back pain since 2006 as reported in August 2007, which is more contemporaneous to the time of the injury and dated prior to his December 2015 claim, outweighs his later history provided in March 2017 of having had low back pain since a 1998 injury in service. Hayes, 9 Vet. App. 67. Thus, the evidence indicates that the Veteran’s low back disorder is attributable to an intercurrent cause. Moreover, a VA examiner has opined that the Veteran’s low back disorder is not related to his active service, to include the two in-service injuries, but rather to post-service injuries. As the opinion was based on a sound rationale and the Veteran’s own history, as reflected in the earlier VA medical records, the Board finds it to be of great probative value. Hayes, 9 Vet. App. 67. It is the only competent medical opinion of record and, unfortunately, it is against the claim. Given the above, the Board finds that the Veteran’s low back disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. The record also indicates that his current low back disorder is attributable to an intercurrent cause—the 2006 injury. A lay person is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, the record dates the onset of symptoms to eight years after separation from active service, and the question of causation extends beyond an immediately observable cause-and-effect relationship. Moreover, the evidence indicates that the Veteran’s current low back disorder is attributable to a post-service injury. As such, the Veteran is not competent to address the etiology of his low back disability. Accordingly, the Board concludes that service connection for a low back disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.