Citation Nr: 21000141 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-16 249 DATE: January 4, 2021 ORDER Service connection for a low back disability is denied. REMANDED Service connection for a right leg disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from November 1963 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2019. The matter was then remanded for additional development in May 2019 and August 2020. Service connection for a low back disability The Veteran contends that he incurred a low back disability during service. Specifically, in his March 2019 hearing testimony, he reported that he injured his back as a result of heavy lifting. He reported seeking treatment, getting x-rays, and being put on light duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has diagnoses of lumbar spine degenerative disc disease and thoracic spine compression fractures, the preponderance of the evidence is against finding that either condition began during active service, or is otherwise related to an in-service injury, event, or disease. While the Veteran is competent to report injuring his back during service, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Specifically, in his May 2013 service connection claim and March 2019 hearing testimony, he reported that his back disability had its onset during service. However, in his August 2007 claim for a nonservice-connected pension, he reported the onset of his back disability as April 1999. In addition, while the Veteran reported injuring his back during service and receiving treatment, his service treatment records are negative for any complaints, treatment or diagnoses related to a back injury. Notably, these records do show a variety of other documented conditions, including decreased hearing, a sinus infection, folliculitis, and a foot injury. In other words, the Veteran was actively reporting a variety of health concerns, including a musculoskeletal injury, without documentation of a back injury. This strongly suggests that no such disability was present in service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Post-service treatment records include VA records from 1992, when the Veteran was treated for laryngeal polyps. However, the first documentation for a back disability was in October 1999, when a VA examination noted complaints of low back pain and findings of mild degenerative disc disease. This is generally consistent with the Veteran’s report regarding the onset of his condition in April 1999. For these reasons, the preponderance of the evidence weighs against findings that a relevant back injury occurred during service, and service connection is therefore not warranted. REASONS FOR REMAND Service connection for a right leg disability Unfortunately, additional development is required in order to fully and fairly adjudicate this claim. The Board previously remanded the claim for a medical opinion as to whether the Veteran’s diagnosed right ankle and right knee disabilities are secondary to his service-connected right foot contusion. In a September 2020 opinion, a VA physician stated that these ankle and knee disabilities were not caused or aggravated by the service-connected foot contusion. The rationale for this opinion was that there were no current medical records on the right knee or ankle, and therefore nothing connecting them to the right foot. The Board finds this opinion to be inadequate. The lack of existing medical records connecting the claimed disabilities to the service-connected disabilities is not a sufficient reason to conclude that no connection exists. Therefore, a supplemental opinion is required. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right ankle sprain and right knee strain are at least as likely as not 1) proximately due to his service-connected right foot contusion, or 2) aggravated beyond their natural progression by the service-connected right foot contusion. The clinician is advised that the lack of any existing records connecting the right ankle sprain and/or right knee strain to the right foot contusion, alone, is not an adequate basis to conclude that no link between the disabilities exists. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.