Citation Nr: 20046426 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 20-11 715 DATE: July 10, 2020 ORDER Entitlement to service connection for back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s back disability is related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1962 to March 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Board decisions shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake, supra. In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Entitlement to service connection for back disability The Veteran contends his current back disability is related to his military service. The Veteran alleges the February 2020 VA examiner did not consider his medical history to establish continuity of symptomatology. The Veteran seeks a new VA examination. In February 2020, the Veteran underwent a VA examination. The examiner diagnosed the Veteran as having thoracolumbar spine conditions of degenerative arthritis of the spine. The Veteran’s current back disability is a form of arthritis. VA considers arthritis a chronic disease subject to presumptive service connection. 38 C.F.R. § 3.309(a). Service connection can be established through application of statutory presumptions, including for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Moreover, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s thoracolumbar spine conditions of degenerative arthritis of the spine did not manifest to a compensable degree within one year of separation from service. The Veteran’s December 1965 service treatment records show the Veteran as having a back strain because he tripped. At the Veteran’s separation examination in February 1966, the examiner noted that the Veteran had strained his back in December 1965 with occasional aches, but was not disabling. The December 1965 examiner also stated that there were no complications and no residuals. The claims file indicates the Veteran did not make any complaints or seek treatment relating to his back for more than 30 years after leaving military service. Consequently, establishing service connection on the basis of continuity of symptomatology does not apply. However, service connection can still be established if the Veteran can show competent evidence of three things, i.e., a current disability, an in-service event, and a causal relationship between the current disability and the in-service event. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The question for the Board is whether the Veteran’s current back disability is at least as likely as not related to an in-service injury, event, or disease. During the February 2020 VA examination, the Veteran reported that his low back condition began in the military in 1962 when he experienced back pain while loading a truck, but the pain subsided after taking medication. The Veteran also reported, in 1972, he had muscle spasms in which the back pain subsequently resolved. The Veteran reported that he experienced severe low back pain in 1979 and was hospitalized for muscle spasm by being put in traction for 10 days. The Veteran also reported that in 1984, while walking upstairs, he slipped and fell and injured his back resulting in the Veteran being put on bed rest and receiving short-term disability for six weeks. The Veteran reported that he “has chronic low back pain since that last injury.” The examiner also noted that the Veteran was a truck driver for 32 years prior to his retirement. The February 2020 VA examiner’s report included a detailed history of the Veteran’s back conditions while in-service and post-service including an incident not disclosed by the Veteran during the examination. According to April 2003 private treatment records, the Veteran was involved in a motor vehicle accident in April 2003 in which he complained of cervical and interscapular pain. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s back disability was “less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” The examiner supported his conclusions by stating: Simple back strain without complications typically resolve without permanent residual which is consistent with the veteran’s self-reported history today and over 3 decades absence of documentation of complaints and or treatment for the back condition. Furthermore, there is no known causal relationship between the back strain and the veteran’s current[ly] diagnosed thoracolumbar spine conditions of Degenerative arthritis of the spine, Lumbar spondylosis and Diffuse idiopathic skeletal hyperostosis (DISH) and are unlikely to be caused by a specific event. . . . Degenerative arthritis (or osteoarthritis) of the spine . . . and . . . Lumbar spondylosis . . . have multifactorial etiology and are typically due to a lifetime of wear and tear. Advanced age is one of the strongest risk factors associated with these condition[s]. A clinical study found OA [osteoarthritis] in 83 and 87 percent of males and females aged 55 to 64 years old, respectively. As for diffuse idiopathic skeletal hyperostosis (DISH), is a condition that causes bone to form in abnormal places and the exact cause of DISH is not known. A variety of factors are thought to contribute to its development, such as metabolic conditions. Considering the examiner’s report included a thorough and detailed medical history of the Veteran’s back conditions, an in-person examination, reports made by the Veteran during the examination and provided fully articulated sound reasons explaining how the examiner reached his conclusions, the Board finds the February 2020 examination as adequate. Thus, the examiner’s negative nexus opinion is assigned significant probative weight. Prejean v. West, 13 Vet. App. 444, 448-449 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, private treatment records fail to provide any evidence that the Veteran’s current disability is causally related to his military service. One of the Veteran’s contentions is that the Veteran is competent to report his recurring symptoms. In an April 2018 lay statement, the Veteran states that his back condition occurred when he ruptured a lumbar disc while on active duty. There is no indication in the Veteran’s service treatment records that the Veteran ruptured a lumbar disc while in military service. While the Veteran is competent to report his past recollections, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), his lay statements are inconsistent with the current record. The Veteran’s statements are internally inconsistent as to the in-service event causing his back injury as well as the type of back injury he incurred while in service, both of which are inconsistent with the Veteran’s service treatment records. The Veteran stated in his April 2018 lay statement that he ruptured a lumbar disc while in the service, but at the February 2020 VA examination, the Veteran reported he injured his back while loading a truck in 1962. The Veteran’s service treatment records indicate the Veteran tripped over something he failed to notice resulting in having a back strain in December 1965. In addition, the Veteran’s reports to the VA examiner of the 1972 and 1979 back disability incidents are not corroborated by any records associated with the claims file. If the Veteran was hospitalized and put in traction for 10 days, then medical treatment records for such an incident would exist. The Board affords more evidentiary weight to the contemporaneous statements of the Veteran rendered during his military service, than statements to the contrary made more than 50 years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran’s health and medical treatment after military service. Maxson v. Gober, 230 F.3d 1330, 1333 (2000). Accordingly, the Veteran’s lay statements are entitled to diminished evidentiary weight. In adjudicating this claim, the Board considered the entire record. In light of the foregoing, the doctrine of the benefit of the doubt is not for application. Accordingly, the preponderance of the evidence is against finding that the Veteran’s back disability is causally related to an in-service event, injury or disease. Therefore, the Veteran’s claim for entitlement to service connection for back disability is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.