Citation Nr: 20046691 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-12 939 DATE: July 13, 2020 ORDER Service connection for a lower back disorder is denied. FINDINGS OF FACT 1. The Veteran has a current lower back disability, diagnosed as lumbosacral strain and intervertebral disc syndrome. 2. The Veteran did not sustain a low back injury during service, including during two in-service motor vehicle accidents in April 1997 and May 1999. 3. The current low back disability did not have its onset in service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1996 to January 2006. This matter is on appeal from a January 2013 rating decision issued by the Regional Office (RO) in Portland, Oregon. The Veteran testified in Portland, Oregon, at a Board videoconference hearing in June 2018 before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. This matter was previously before the Board in July 2018. The Board reopened the claim for service connection for the low back disorder and remanded the merits of the claim in order to obtain a VA examination. A VA examination was conducted in July 2019. A supplemental statement of the case denied the issue in March 2020. Service Connection for a Lower Back Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. See 38 C.F.R. § 3.303(d). The Veteran now contends that symptoms of the lower back disorder have been continuous since the two in-service motor vehicle accidents and since separation from service. See June 2018 Transcript. At the outset, the Board finds that the Veteran is not credible in reporting continuous symptoms since the in-service motor vehicle accidents in April 1997 and May 1999 because the more recent assertions are inconsistent with, and outweighed by, other more contemporaneous lay and medical evidence. After each of the two in-service motor vehicle accidents, the Veteran specifically reported other injuries and complaints, but did not report lower back symptoms or injuries when seeking treatment, did not report lower back symptoms or injuries during the follow up appointments, and the medical findings did not indicate any back abnormalities. The contemporaneous histories given by the Veteran when seeking treatment following the two accidents is highly probative evidence of what areas of the body had been injured or affected; and notably show no back injury or complaints. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). At the time of the April 1997 motor vehicle accident, the Veteran reported injuries to the nose, both knees, and left tibia, but did not report any lower back injuries. The military medical examiner assessed the Veteran and found that the lower back was negative for costovertebral angle tenderness (CVAT). See Healthline, “Costovertebral angle tenderness,” https://www.healthline.com/health/costovertebral-angle (“The costovertebral angle (CVA) is located on your back at the bottom of your ribcage at the 12th rib. It’s the 90-degree angle formed between the curve of that rib and your spine”). When the Veteran reported for follow up treatment, she described pain in the nose, on left side of the neck and shoulder with no reported pain in the lower back. In May 1999, the Veteran was involved in another motor vehicle accident and reported injuries to the left elbow, right knee, upper lip, and neck, but did not report any injuries to the lower back or report complaints regarding the low back. When the Veteran reported for follow up treatment, she described continued right knee pain but, again, did not report lower back symptoms. Subsequent service treatment records do not contain reports of low back symptoms, and even show the Veteran affirmatively denying back pain. See June 2002 Report of Medical History (The Veteran affirmatively reported that she did not have recurrent back pain); June 2002 Military Medical Examination (The spine was found to be in normal condition); January 2006 Report of Medical Assessment (The Veteran reported that she has not “suffered from any injury or illness while on active duty for which [she] did not seek medical care.”). The Board finds that the Veteran is not credible in reporting continuous symptoms since the in-service motor vehicle accidents because the more contemporaneous evidence, and histories made for treatment purposes so are more probative, as well as medical findings, are inconsistent with, and outweigh, the much later assertion of continuous symptoms. The contemporaneous service treatment records, which are complete and document the two injuries to parts of the body that do not include the back, and show specific medical histories including during follow up care, are silent for reports or indicia of low back injuries, complaints, symptoms, findings, or disorders. Because the service treatment records record specific complaints and findings and histories of injury contemporaneous to the two in-service accidents, any back injury, symptoms, findings, or treatment would, likewise, have been recorded in the service treatment records had it in fact occurred. The Veteran omitted complaints related to the low back when seeking treatment for both in-service motor vehicle accidents, and the Veteran’s own contemporaneous in-service statements contradict the recent claim of continuous symptomatology made pursuant to the claim to reopen service connection. Under these circumstances, the absence of any report of back injury, complaints, symptoms, findings, diagnosis, or treatment in the otherwise complete service treatment records is evidence that tends to prove the nonoccurrence of a back injury or disease, or even symptoms, during service. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); Cf. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board’s finding that a veteran was not credible because recent lay evidence about a wound in service was internally inconsistent with the veteran’s contemporaneous lay statements that he had not received any wounds in service). The Board finds that the Veteran is not credible in the more recent reporting continuous low back symptoms after service separation. In the context of there being no in-service low back injury or disease, or even symptoms, the credible evidence shows the first post-service report of low back symptoms in April 2010 VA treatment records, approximately three years after service separation. When the Veteran reported complaints of low back pain in April 2010 and again in May 2010, she did not report an in-service back injury or onset of back symptoms in service or since service. In a May 2010 women’s post deployment clinic consultation, the Veteran affirmatively reported neck pain related to an in-service motor vehicle accident but did not report having experienced any low back pain during service or prior to seeking treatment in 2010. When the low back was examined in June 2010, the VA medical examiner found that the Veteran was negative for CVAT, midline tenderness, and deformity of the back. The above contemporaneous post-service medical evidence and three-year absence contradict the Veteran’s recent assertion that she experienced continuous low back symptoms after service separation. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). After reviewing all the evidence, both lay and medical, the Board finds that the Veteran has a current lower back disability, diagnosed as lumbosacral strain and intervertebral disc syndrome. See July 2019 VA Examination. The weight of the lay and medical evidence shows that the current low back disability did not have its onset in service, and is not otherwise etiologically related to service. While the Veteran sustained neck injuries in two in-service motor vehicle accidents, one in April 1997 and the other in May 1999, the weight of the evidence shows no low back injury in service. Service treatment records show treatment for injuries or symptoms that do not include reports of lower back injury or symptoms. See April 1997 Service Treatment Records (The Veteran did not report any lower back symptoms associated with the April 1997 accident); May 1999 Service Treatment Records (The Veteran did not report any lower back symptoms associated with the May 1999 accident). The weight of the evidence shows no continuous low back symptoms since service, but shows post-service onset of low back symptoms three years after service. Upon review of the service treatment records, the Veteran sought follow up treatment from these in-service injuries but did not report any lower back symptoms. There are no complaints of or treatment for lower back injuries in the service treatment records. While there is no service separation examination of record, in January 2006, the same month and year of the Veteran’s service separation, the Veteran reported that she has not “suffered from any injury or illness while on active duty for which [she] did not seek medical care.” See January 2006 Report of Medical Assessment. As previously explained, the first report of post-service low back symptoms is in April 2010 VA treatment records, approximately three years after service separation. The Veteran also testified that she first sought treatment for the lower back disorder in 2010 during the June 2018 Board videoconference hearing. See June 2018 Transcript. (Continued on the next page)   On the question of relationship of a current back disorder to service, pursuant to the directives in the July 2018 Board Remand, a VA examination opinion was rendered in July 2019, which opined that the lower back disorder was less likely than not incurred in or caused by the in-service accidents in 1997 and 1999. The VA examiner reasoned that there were no back pain complaints, evaluation or treatment during service. The VA examiner noted this accurate history of there being no contemporaneous low back complaints following the in-service accidents. Based on the foregoing, the preponderance of the evidence is against finding service connection for the lower back disorder; thus, the claim must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.