Citation Nr: 20037074 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 15-42 685A DATE: June 1, 2020 ORDER Service connection for a back disability is denied. FINDING OF FACT The Veteran’s back disability was not incurred in or caused by military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to September 1962. In an October 2017 decision, the Board of Veterans’ Appeals (Board) denied service connection for a back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Partial Remand (Joint Motion), the parties agreed that the Board failed to fulfill the duty to assist as required by 38 U.S.C. § 5103A by relying on an inadequate medical opinion. Specifically, that the April 2013 Department of Veterans Affairs (VA) medical examiner did not provide an adequate opinion and rationale addressing whether the Veteran’s current low back disorders are caused by or a result of an in-service injury. The parties agreed that the Board shall obtain a new VA medical opinion to address the etiology of the Veteran’s current back disability and whether it is related to the in-service injury. In a July 2018 Order the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In October 2018 the Board remanded the issue on appeal for additional development. The issue has now been returned to the Board for appellate review. The Veteran asserts that his current back disability is related to active service. He contends that he fell in-service aboard the U.S.S. Valley Forge in August 1961 and has had back pain since. He asserts that he fell twenty-five or thirty feet and was knocked unconscious when he struck another vessel. He asserts that he was sent to the ship sick bay and was released the next day and put on light duty work for a week. See February 2012 Statement. In lay statements the Veteran asserted that he worked in sales or management after service and has not done manual labor. See May 2013 Notice of Disagreement. The Veteran contends that doctors have told him that his back pain is due to a strain and that his back pain could have been due to a fall. See January 2012 Statement. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current back disability. For example, at his November 2019 VA examination he was diagnosed with degenerative arthritis of the spine, spinal fusion and degenerative joint and disc disease and fracture of the coccyx in 1967. Thus, the remaining question is whether the current back disability is related to service. Service records reflect that the Veteran was injured while serving aboard the U.S.S. Valley Forge. An August 1961 Deck Log reflects that the Veteran was wrapping line around mooring line when he slipped and fell from the line and struck the side of a whale boat in the water alongside the ship. The record reflects that the Veteran sustained abrasion and contusion of the gluteal fold and right thigh as a result and he was treated by the dispensary. During the August 1962 separation examination, evaluation of the spine was normal. In a corresponding report of medical history, the Veteran specifically denied having had any swollen or painful joints, arthritis and bone, joint or other deformity. If back pain was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had swollen or painful joints at separation because a reasonable person would have interpreted the question to include symptoms of back pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having back symptoms. The Veteran’s first documented treatment for the spine after separation from service was in 1990, when he had a spinal laminectomy. His back pain did not improve, and he continues to report ongoing pain with difficulty sitting for too long. As arthritis is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of arthritis is not shown, in-service incurrence of arthritis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied swollen or painful joints, or any other symptoms of a back disability. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. In June 1967 the Veteran underwent VA examination. The examiner recorded the Veteran’s history of falling overboard in service and complaints of back pain, and that he had broken his tail bone and continued to experience pain when sitting. The examiner stated that examination reveals no tenderness about the sacrum of coccyx and there is no gross deformity discernible. A June 1967 treatment report reflects that the Veteran had an old displaced fracture of the end of the coccyx. During an April 2013 VA examination, the examiner recorded the history of the Veteran’s back complaints and treatment and diagnosed degeneration of the lumbar or lumbosacral intervertebral disc without myelopathy. She opined that the Veteran’s current back disability is not related to the in-service fall. She explained that the deck log reveals the Veteran was wrapping line around a mooring line when he slipped and fell from the line and struck the side of a whale boat in the water alongside the ship. She stated the injuries from the fall were said to be an abrasion and contusion of the gluteal fold and the right thigh. She noted nothing follows until a partial note from a physician with a diagnosis for fracture of the coccyx without history and physical examination in June 1967. The examiner stated the Veteran’s separation physical is negative for back or buttock complaints or abnormal findings on physical examination. Private treatment reports reflect that the Veteran has been treated for back pain and radicular symptoms in his lower extremities. In December 1990 he underwent back surgery. After surgery he was diagnosed with L4-L5 spondylolisthesis and spinal stenosis, cholelithiasis. A May 2008 treatment report reflects that x-ray images showed post-surgical changes, bilateral posterior lateral fusion, and midline decompression, as well as L4-L5 spondylolisthesis. To support his claim the Veteran submitted articles about the symptoms and causes of spondylolisthesis, spinal stenosis, and gluteal sulcus, as well as a spine diagram; he asserts that his spinal disc problem is due to the fall during military service. The Veteran presented for a VA examination in November 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported he received no treatment for a back disability stating he was in sick bay for two days following the injury. He reported at the time of separation from service he had pain in the sacrum region. He stated symptoms would come and go brought about with sitting and standing. He reported he later had increased symptoms with his back in the middle 1980s and that he lived with the condition until the early 1990s leading to the surgery in 1990. The Veteran reported leaving the workplace in the middle 1990s and that he was placed on Social Security. He stated his back disability has progressed over the years and he currently has moderate back pain with flare-ups from prolonged sitting and standing. The examiner opined that the current back disability is less likely than not related to service. In support of this conclusion, the examiner explained that it is as likely as not that the Veteran did obtain a coccyx fracture in service given the history, service log review, and initial examination. However, he explained there were no symptoms of physical findings currently to attribute to the injury in service and therefore there are no functional restrictions from the remote injury, and no chronic disability related to the in-service coccyx injury. The examiner reported that tail bone injuries typically heal without residual symptoms or functional restrictions which is the case with the Veteran when taking the evidence into consideration. The examiner stated he found no evidence of chronic back problems during or shortly after separation from service. He stated he found no evidence of lumbar related complaints during active service to attribute his back problem to the injury or event in service. The examiner explained that if the Veteran had a significant lumbar injury from the in-service fall, he would expect evidence of clinical symptomatology during service or shortly following separation from service, which he noted is not found thereby negating the claimed lumbar spine condition to a service injury or in-service disease process. The examiner stated that the chronic back problem was diagnosed long after separation from service and is consistent with the development of degenerative joint disease/degenerative disc disease/stenosis/spondylolisthesis which can occur with aging and occupational stresses which the examiner thought to be the case here. He stated that the medical literature supports that most back injuries do clear and that if there was a significant lumbar injury at the time of his coccyx injury in-service, there would in general be ongoing symptoms with his back around the time of the injury, and such is not the case here. The Board finds the November 2019 VA examiner’s opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. For example, the examiner explained that tailbone injuries typically heal without residual symptoms as was the case with the Veteran as evidenced by the evidence of record. The examiner explained the medical significance with the absence of lumbar spine complaints during active service and that if the Veteran had a significant lumbar injury from the fall during service he would expect evidence of clinical symptomatology during military service or shortly after separation from service. The examiner explained that the development of the Veteran’s current back disability is consistent with the normal aging process and occupational stresses, and that per medical literature most back injuries do resolve. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that the disability is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Gonzalez, 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.