Citation Nr: 20036461 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 11-26 728 DATE: May 28, 2020 ORDER Service connection for a back disability is denied. FINDING OF FACT Arthritis of the lumbar spine was not shown during active duty service or for many years thereafter, and the preponderance of the evidence is against a finding that a current back disability is related to service, a disease or injury incurred during a period of active duty for training (ACDUTRA), an injury incurred during a period of inactive duty for training (INACDUTRA), or a service-connected disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to October 1985, with additional Reserve and Air National Guard service through 2007, including several periods of ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2019, the Board denied the Veteran’s service connection claim for a back disability, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a November 2019 Joint Motion for Remand (Joint Motion), the parties agreed that the Board failed to adequately discuss whether certain lay statements of record corroborated the Veteran’s claimed in-service back injury. The parties moved the Court to vacate the Board’s March 2019 decision, and in a December 2019 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24) (2012); 38 C.F.R. § 3.6(a), (c), (d) (2018). ACDUTRA includes full-time duty performed for training purposes by Reserves and members of the National Guard, under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(c)(3). Service connection may be granted for injury or disease incurred while on ACDUTRA. 38 U.S.C. § 101(24). INACDUTRA is defined as duty (other than full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. 38 U.S.C. § 101(24). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest 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 in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply to periods of ACDUTRA or INACDUTRA service. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010). Additionally, service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability, which he asserts was incurred during service, or alternatively, is related to his service-connected posttraumatic stress disorder (PTSD). On his February 2009 application for benefits, the Veteran indicated that his back disability began in December 2000. In a November 2009 written statement, the Veteran asserted that his current back disability was caused by his work as an aircraft mechanic and munitions technician during his active duty and 24 years of Reserve service, which required him to bend, stoop, squat, and load heavy equipment. During a June 2011 hearing before a decision review officer, the Veteran testified that he injured his back lifting weights in 1994. He stated that he was on physical profile for that injury for two or three months and that his back was never the same after that. During the December 2017 Board hearing, the Veteran again testified that he severely injured his back during service in the early 1990’s. In support of his claim, the Veteran submitted written statements from his wife, daughter, a friend, and a fellow service member. The Veteran’s wife and daughter indicated that they observed the Veteran complain of worsening back pain over the years after the Veteran joined the military. In an August 2010 written statement, the Veteran’s wife noted that when preparing for duty in the morning, the Veteran could barely get out of bed and was unable to bend over to put on his socks and boots. In a December 2018 written statement, a fellow service member, G.C., indicated that he was aware of the “the incident with [the Veteran’s] lower back and hip in 1994 at military workouts for a ORI Air Force exercise” and of the Veteran’s complaints of chronic back pain from 1994 to 1999. In a January 2020 written statement, a friend of the Veteran, L.H., indicated that to his knowledge, the Veteran never complained of back problems before his military service, and he recalled the Veteran complaining about back pain and walking with a limp after an accident in 1994. Upon review of the record, the Board finds that the most probative evidence is against a finding that a current back disability manifested within a year of discharge from active duty or was incurred in or caused by service, including a period of ACDUTRA or INACDUTRA. Although the Veteran claims that he sustained an injury to his back during service and experienced continued back pain ever since, the Board finds that his assertions are not consistent with the probative evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Service treatment records show no complaints of or treatment for back problems during active duty or a period of ACDUTRA or INACDUTRA. The Veteran’s spine was found to be normal on medical examinations conducted in June 1984, August 1985, November 1988, and September 1992, and he denied any history of recurrent back pain on all accompanying reports of medical history. A May 1994 treatment record shows that the Veteran reported right leg pain for the past two weeks after lifting weights. A physical examination revealed tenderness over the right hamstring muscle, and x-rays were normal. The Veteran was placed on physical profile of no running or physical testing. A June 1994 treatment record notes that the Veteran was placed on physical profile for a right hip injury secondary to weight lifting. An August 1994 follow-up treatment record shows that the Veteran reported that his right hip pain had resolved, and he returned to full duty. Although the record shows complaints of right hip and leg pain between May 1994 and August 1994, there was no mention of back pain or a back injury or any findings related to a back condition. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Furthermore, a November 2018 private treatment record notes that the Veteran “report[ed] chronic back pain dating back to an incident in the military in 1994,” but “[t]he provided medical records in 1994 do not clearly indicate a spine related condition at that time.” This further undermines the Veteran’s assertion that he sustained an injury to his back during the 1994 weightlifting injury. Subsequent Reserve and National Guard treatment records likewise show no complaints of back pain or diagnosis of a back condition. Moreover, the Veteran’s spine was found to be normal on medical examinations conducted in December 1997 and September 2001, and he specifically denied any history of recurrent back pain on accompanying reports of medical history, and he denied any history of back injury in September 2001. The earliest record showing a complaint of back pain is dated January 2006, when the Veteran reported back pain after returning from Iraq as a civilian government contractor. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than testimony and statements submitted to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). The Board has reviewed the written statements from the Veteran’s wife, daughter, friend, and fellow service member and considered whether they corroborate the Veteran’s assertion that he experienced continued back pain since his claimed in-service back injury. However, their assertions are inconsistent with the contemporaneous medical evidence and contradicted by the Veteran’s own statements denying recurrent back pain in December 1997 and September 2001 and denying any history of back injury in September 2001. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements provided over 15 years after the alleged in-service injury and for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan, 451 F.3d at 1337. The Veteran underwent a VA examination in August 2018, during which he reported gradual onset of chronic low back pain while working as an aircraft mechanic and reported sustaining a back injury while lifting weights during physical training in 1994. The examiner diagnosed the Veteran with lumbar degenerative disc disease with interverbal disc syndrome (IVDS) and L5 radiculopathy and opined that it was less likely than not incurred in or caused by service, including a period of ACDUTRA or INACDUTRA. In support of this, the examiner explained that there was no objective evidence of a significant lumbar spine injury, a chronic recurrent back problem, or residual lumbar spine pathology during service, and the Veteran’s present conditions occur as a chronic process from wear and tear, genetics, and senescence. The examiner further noted that the earliest record showing a complaint of back pain was in January 2006, when the Veteran reported back pain after returning from Iraq as a civilian government contractor. In September 2018, the Veteran submitted a disability benefits questionnaire (DBQ) completed by a private chiropractor. The private chiropractor indicated that the Veteran injured his back during physical training while on duty and opined that the Veteran’s current back disability was more likely than not due to the injury he sustained during service. However, the Board finds the opinion of the private chiropractor to be of significantly less probative value than the VA examiner’s opinion, as it is conclusory in nature and not supported by adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Moreover, it is based on the Veteran’s assertion that he sustained a back injury during service, which the Board has already found lacks credibility. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). The Veteran also submitted an August 2010 opinion from his wife, who has education and experience in occupational health and safety. The Veteran’s wife opined that the Veteran’s current back disability is directly related to his military service because he did not complain of back pain until after he joined the military. While the Veteran’s wife is competent to report her observations of the Veteran’s back pain, she has not shown that he has specialized training sufficient to render a medical opinion on the etiology of the Veteran’s current back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1) (2018). The Veteran’s wife indicated that her experience includes auditing companies for unsafe work conditions during an internship with the Department of Labor. As the Veteran’s wife does not have education, training, or experience offering medical diagnoses, statements, or opinions, the Board finds that her opinion as to the etiology of the Veteran’s current back disability is not competent medical evidence. Regardless, the Board finds the VA examiner’s opinion to be more probative, as the examiner has greater education and skill in addressing medical matters. The Board has reviewed and considered a May 2017 opinion from the Veteran’s daughter, who has education and experience in exercise science and athletic training. The Veteran’s daughter opined that the Veteran’s current back disability is directly related to his military service. In support of this, she explained that the Veteran injured his back and hip while lifting weights during a period of active duty or ACDUTRA in 1994 and that severe back problems were noted in his 1994 medical records. She also cited to medical literature indicating that an injury precipitates and accelerates the onset of the degenerative process of the spine. She explained that tearing of ligaments and subluxation manifest in the form of low back pain, and eventually that soft tissue injury can mature into degenerative disc disease due to destabilization. Even assuming that the Veteran’s daughter has the requisite education and training to offer medical opinions, the Board assigns less probative value to this opinion, as it is not supported by the contemporaneous evidence of record. As noted above, the medical evidence of record does not show that the Veteran sustained a back injury in 1994, and he expressly denied any history of recurrent back pain in December 1997 and September 2001 and denied any history of back injury in September 2001. See Reonal, 5 Vet. App. at 461. The Board has also reviewed and considered an article submitted by the Veteran, which indicates that occupational exposure to physically strenuous work increases the risk of low back pain. However, the Board assigns little probative value to this article, as it does not address the particular facts of the Veteran’s case. See, e.g. Sacks v. West, 11 Vet. App. 314, 316-17 (1998). In a September 2018 written statement, the Veteran appears to suggest that his current back disability may be related to his service-connected PTSD. However, there is no competent evidence of record suggesting a possible association between the Veteran’s PTSD and his back disability. Therefore, a VA medical opinion is not required with respect to secondary service connection, and service connection on a secondary basis is not warranted. See 38 C.F.R. §§ 3.159(c), 3.310; see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case”). In his September 2018 written statement, the Veteran also challenged the competency of the VA examiner who provided an opinion in this case. As previously noted, competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). In this case, the VA examination report identifies the VA examiner as a physician assistant. A physician assistant has medical education and training. Accordingly, the Board finds that the August 2018 VA examiner has the requisite education, training, or experience to offer medical diagnoses, statements, or opinions. Therefore, her opinion is competent medical evidence. See id.; see also Francway v. Wilkie, 930 F.3d 1377, 1379-81 (2019). Although the Veteran believes that a current back disability is related to service or his service-connected PTSD, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of spine disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current back disability is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a back disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 53. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.