Citation Nr: 20042453 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 14-25 148 DATE: June 23, 2020 ORDER Service connection for a low back disability is denied. REMANDED Service connection for hypertension, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT No low back injury or disease was manifested during service; the current low back disability was manifested many years after service and is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection of a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 1988 to February 1994. This matter is on appeal from a March 2013 rating decision. In September 2017, the Veteran testified at a videoconference Board hearing before the undersigned. In March 2018, the Board denied service connection for a low back disability and hypertension and remanded service connection for migraines. In a September 2019 Memorandum Decision, the Court vacated the Board's decision on the basis that the Board did not address favorable hearing testimony regarding the reason why the Veteran did not seek lower back treatment during service. The Court also found that the Board provided an inadequate statement of reasons or bases for finding that a medical examination with a medical opinion for hypertension when the Veteran testified that handling top secret matters in a stressful environment was the catalyst for hypertension. The Court further found that a medical opinion on hypertension should include consideration of whether secondary service connection due to service-connected PTSD is warranted. The issue of service connection for migraines remains in remand status; therefore, its adjudication will be addressed in a future Board decision. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because recurrent lumbosacral strain is not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. Service Connection Analysis for a Low Back Disability At September 2017 Board hearing, the Veteran testified that she believed that the current low back disability was related to an epidural received during childbirth in April 1989. She testified that she has had intermittent back pain since the in-service epidural when the needle broke while being injected into her back, took over-the-counter medication to treat back symptoms, and received medical treatment for back problems shortly after service separation. On the October 2014 NOD, the Veteran alternatively alleged that she sustained a back injury during an in-service MVA and believed that she had a current low back disability related to the alleged in-service back injury. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of a back injury or back disease during service or involvement in a MVA. With the exception of one complaint of back pain accompanied by upper respiratory symptoms of sore throat, stuffy nose, and headache of two day duration in September 1993, the service treatment records, which are complete, are absent of any other report, complaint, diagnosis, or treatment for any back problems or a MVA. No back problems related to the1989 childbirth during service are shown, including the purported incident where a needle broke during administration of the epidural. See also August 1993 service health questionnaire for dental treatment (noting a prior cesarean section in 1993 with no mention of any back problems). Because the service treatment records are complete, show treatment during and after two pregnancies (i.e., in 1989 and 1993) to include reported pain associated with the incision site in October 1989 with no mention of a back injury or back problems related to the 1989 childbirth, and the one-time in-service back complaint in 1993 was accompanied by upper respiratory complaints with no mention of a back injury or MVA, the Board finds that a back injury or a back disease are conditions that would have ordinarily been recorded during service had they occurred; therefore, the lay and medical evidence generated contemporaneous to service, which shows no back injury or disease is likely to reflect accurately the Veteran’s physical condition, so is of significant probative value and provides evidence against a finding of back injury or back disease during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board finds that the weight of evidence is against finding that the current low back disability is causally or etiologically related to service. After the one-time in-service complaint of back pain in 1993, the earliest evidence of back symptoms is in November 2005, approximately 12 years after the in-service complaint of back pain and 11years after service separation. At that time, the Veteran reported low back pain following a post-service motor vehicular accident that had occurred three hours earlier. Post-service treatment records show multiple subsequent back injuries, including due to other post-service MVAs, during the period from May 2007 to November 2009. Considered together with the absence of any evidence of an in-service back injury or MVA, no in-service back symptoms other than a one-time complain of back pain in September 1993, and the earliest evidence of post-service back symptoms in 2005 following a post-service MVA, the gap of approximately 11 years between service and the onset of low back symptoms related to lumbosacral strain is another factor that tends to weigh against a finding of service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and evidence of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board has considered the Veteran’s competent lay account of recurrent low back pain during and since service; however, the Veteran’s lay account is inconsistent with, and outweighed by, other lay and medical evidence more contemporaneous to service showing no back injury or disease in service, and no back symptoms other than a one-time complaint of back pain with accompanying upper respiratory symptoms in 1993 rather than the back, and more contemporaneous post-service lay and medical evidence showing an onset of back problems approximately 11 years after service following a post-service MVA-related back injury. For this reason, the Veteran’s testimony and assertion put forth during the current claim is not deemed credible, so is of no probative value. To comply fully with orders of the September 2019 Memorandum Decision, the Board has specifically considered the Veteran’s hearing testimony that she self-treated low back symptoms with over-the-counter medication during service because she did not want to go to sick call too often, as well as the undated letter from her superior stating that the Veteran’s fear for her career may have prevented her from expressing how severely she may have been suffering; however, the Board does not find the account to be credible because the Veteran’s own in-service dental history reporting 1993 events did not mention a back injury, and this testimony made recently for compensation purposes does not account for the 11-year period without post-service back complaints until the occurrence of a post-service (i.e., November 2005) MVA-related back injury. In November 2005, the Veteran presented for treatment of acute low back pain and specifically reported that she had recently sustained back injury in a post-service November 2005 MVA. She made no mention of service, of back injury or disease in service, or even of having experienced back symptoms in service. The Veteran was making this history in November 2005 contemporaneous with the post-service MVA, so she had a chance to report any back problems that were present immediately prior to the post-service MVA, but did not so report. The history of post-service back injury and onset of back symptoms was made for treatment purposes, so is highly probative because one would be expected to present an accurate medical history to receive good treatment for that injury. If the Veteran had been experiencing back symptoms during and since service, as she now alleges, it is likely that she would have mentioned that history during the course of treatment for the back in November 2005. Instead, she specifically linked the low back pain to the November 2005 post-service MVA back injury at that time, which is consistent with the other lay and medical evidence of record, as the Veteran reported the post-service MVA and back injury and symptoms in the context of not having mentioned back pain from service until this post-service accident. Similarly, in May 2007, the Veteran sustained another post-service MVA-related low back injury and then only reported the November 2005 post-service back injury when asked if she had a history of a similar injury or pain in the same area of the body. Again, she made no mention of back injury or symptoms during service or back symptoms any time prior to the post-service MVA in November 2005. Statements made for treatment purposes are deemed particularly trustworthy because an individual has an incentive to report accurately the history of symptoms, so the November 2005 and May 2007 accounts relating the onset of back symptoms to the November 2005 post-service MVA are credible, of significant probative value, and outweigh the more recent account of recurrent back symptoms during and since service, which is unsupported by the weight of the lay and medical evidence contemporaneous to service and since service so is not credible. Thus, while the Veteran is competent to relate symptoms of the low back that she experienced at any time, she is not competent to diagnose lumbosacral strain or link the diagnosis to service, particularly when there was no evidence of an in-service back injury or disease, no in-service back symptoms other than a one-time complaint of back pain accompanied by upper respiratory symptoms in 1993, and the back symptoms related to lumbosacral strain were first manifested many years after service after a post-service back injuries. Under these circumstances, diagnosis and nexus require specific medical knowledge and training under the facts presented in this case. Such diagnosis and nexus require specific medical knowledge and training the Veteran does not have. King v. Shinseki, 700 F.3d 1339, 1345(Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana, 24 Vet. App. at 438 (2011) (holding that ACL injury is "medically complex" for lay diagnosis); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury) For these reasons, the Veteran's purported opinion that she has a current back disability related to service is of no probative value. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a low back disability; therefore, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service Connection for Hypertension To comply with the orders of the September 2019 Memorandum Decision, a remand of the issue of service connection for hypertension for a VA examination with a medical opinion is needed. The matters are REMANDED for the following actions: Schedule an examination by an appropriate examiner to help determine the nature and etiology of hypertension. The examiner should offer the following opinions: 1) Is the current hypertension as likely as not related to an in-service event of stress while handling top secret matters? Note the Veteran’s report of self-treating symptoms by taking her mother’s high blood pressure medication during service. 2) Is the current hypertension as likely as not caused by the service-connected PTSD? 3) Is the current hypertension as likely as not aggravated by (worsened in severity beyond its natural progression by) the service-connected PTSD? If the Veteran is either unable or unwilling to undergo examination, the examiner should provide the above opinions without examination based on review of the record. 2. Thereafter, readjudicate the appeal. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.