Citation Nr: 20053376 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 13-21 753A DATE: August 12, 2020 ORDER Entitlement to service connection for a lumbar spine disability (claimed as lower back condition) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s back disability is causally related to service or any incident of service. 2. The preponderance of the evidence is against a finding that the Veteran’s arthritis of his lumbar spine manifested within one year of service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability (claimed as lower back condition) are not met. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1980 to April 1983. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran requested a Board hearing in his Form 9 substantive appeal; however, he withdrew the request in February 2017. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704 (e) (2019) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). The Veteran’s appeal was remanded in July 2017 and in January 2020. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from 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. See 38 U.S.C. §§ 1112 and 1113; 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). Arthritis qualifies as a chronic disease. See 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of service connection can arise from demonstrating continuity of symptomatology, if the disability claimed qualifies as a chronic disease under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a qualifying chronic disease. See 38 C.F.R. § 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303 (d). 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the Veteran’s claim and what the evidence in the claims file shows, or fails to show, with respect to the Veteran’s claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by the VA. The VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current lumbar spine disability is attributable to a motor vehicle accident that occurred while in service. In statements dated August 2018, November 2018, January 2020 and March 2020, the Veteran details a motor vehicle accident that occurred while he was on active duty between 1981 and 1982. The Veteran contends that the accident resulted in injuries to his lower back/lumbar spine (as well as his right clavicle) and rendered him unable to lift heavy objects. In the Veteran’s VA Form 9 dated August 2013, he also contends that the only time his back has been injured was during the accident while he was on active duty. The Veteran’s service treatment records demonstrate that the Veteran injured his right clavicle and continued to be treated for the injury from 1981 to 1982. However, the Veteran’s records provide neither the details surrounding the injury nor additional evidence concerning an injury to his lower back or lumbar spine. On the VA Form 9 dated August 2013, the Veteran contends that he does not remember declining his separation examination, indicating that he believed that he received dental work resulting from his separation physical. However, the Veteran’s service record contains a Statement of Option dated April 1983, which appears to be signed by the Veteran, indicating that he did not desire a separation medical examination. Thus, the Board finds that is appears the service treatment records are complete in that the lack of a separation examination is explained by other documentation of record. Post-service treatment records indicate that he underwent some trauma in 2005 after being stabbed, his records first address his lower back/lumbar issues in August 2009, over twenty years after separation from service. At that time, the Veteran claimed that his back had “bothered him for several months, but [was] getting worse.” The Veteran noted that his pain was daily and located in his lower back. The VA provider noted that the Veteran “sleeps curled up and it takes over an hour for the pain to subside when he wakes up, back also feels stiff. Pain doesn’t radiate. Had xrays in the past.” Medical imaging from September 2009 showed that the Veteran “had multilevel bone spurring of the vertebral bodies. Disc space narrowing of L4-L5.” The Veteran was diagnosed with osteoarthritis of the lumbar spine, anterior bony bridging of the T12 and L1, and degenerative disc disease of the L4 and L5 by radiographic evidence in September 2009. The Veteran was afforded a VA examination in August 2017; however, the Board found that the VA examination was insufficient because the VA examiner failed to consider the Veteran’s lay statements. The Veteran was afforded a VA examination in March 2020. After reviewing the record, the VA examiner opined that the Veteran’s current back disabilities are less likely than not due to an automobile accident that occurred while in service. The examiner reasoned that any automobile accident occurring in service would have resulted in acute symptoms. If the accident was responsible for the current diagnoses, the Veteran would have had symptoms significant enough to aggressively seek medical care prior to 2009. The Veteran stated that he could not identify a specific time that his symptoms began, but rather that his back symptoms onset has been gradual. Where it specifically pertains to the Veteran’s lay statements, the physician noted that, “[w]hile the veteran’s description of his accident does describe a significant event, it is noted he was taken to Madigan hospital and received medical care (and was diagnosed with a clavicle fracture). An assessment at a hospital would more likely than not have included a ‘trauma assessment,’ thus any back injury from the accident would have been more likely than not identified at that time.” Additional rationale provided was that the findings on the examination and the 2009 x-ray are consistent with age-related degeneration of the lumbar spine and less likely than not due to an acute injury while in service. The VA examiner’s opinion is afforded significant probative weight, as it is based on accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his lower back disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2020 negative nexus opinion which was provided by a medical professional who reviewed and considered the entirety of the record rather than the Veteran’s lay statements regarding nexus. The Board additionally finds that the Veteran’s statements as to continuity of symptoms since service lacks credibility. The Board finds that the Veteran’s statements made while receiving treatment approximately thirty years post-service (i.e., onset of back symptoms in 2009 which he indicated he had for several months) and for initial treatment purposes are more probative than those made years later and for compensation purposes (his 2013 statements which attributed his lumbar spine disability to an in-service motor vehicle accident). Additionally, the Veteran indicated at his in-person 2020 VA examination that the onset of his back problems were gradual, rather than due to an acute injury. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran’s testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In this regard, the Board notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, and importantly, when seeking treatment the Veteran did not initially report symptoms continuously since service. 38 C.F.R. § 3.303 (b). The Board finds that his statements to clinicians for purposes of treatment are the most probative. It was in his best medical interest to provide as accurate a history as possible to, in turn, receive the best and most appropriate course of care. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. To summarize, the most probative evidence of record is the opinion of the VA examiner. This medical opinion is uncontradicted elsewhere in the record except by the Veteran who is not competent to provide an opinion regarding medical nexus. Regarding chronicity and the onset of the Veteran’s back disability, the Board has found the Veteran’s statements indicating an onset of symptomatology in-service which continued to the current time to be not credible; taking into account the lapse of time between the in-service incident and service, the inconsistency of his statements with regard to his lumbar spine disability, and the lack of objective evidence with regards to the onset of his osteoarthritis of the lumbar spine which was first documented approximately thirty years post-service. (Continued on the next page)   Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim for service connection for a lower back/lumbar disability. As the preponderance of the evidence is against the claim for service connection for a back disability, the benefit of the doubt rule does not apply. See 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.R. Reid-McIntosh, 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.