Citation Nr: 21000923 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-32 647 DATE: January 6, 2021 ORDER Entitlement to service connection for a back disorder is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s back disorder did not have its onset in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in February 2015. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in June 2018 and July 2020, at which time it was remanded for a VA examination. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Among the diseases listed for which a nexus will be presumed, include arthritis. See 38 C.F.R. § 3.307, 3.309. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A Veteran may be competent in certain situations to provide a diagnosis of a simple condition; however, a Veteran generally is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for a back disorder The Veteran contends he had lower back pain due to lifting heavy sandbags for bunkers in service and his pain has continued since. The Veteran reported experiencing recurrent back pain on his pre-induction Report of Medical History examination in March 1968. However, the entrance examination itself did not reflect any notations of back disorders and the clinical evaluation of the spine was normal. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a diagnosis of degenerative arthritis of the spine, (see October 2019 VA examination), the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury or disease. The service treatment records (STRs) do not document any complaints, treatment or diagnosis for a back condition and the separation examination specifically noted the spine was normal. At the Board Hearing, the Veteran stated he began having problems while lifting sandbags in Vietnam, but he was unsure if he sought treatment for his back at the time. He also recalled he did not report his back condition at separation because he wanted to go home quickly. The Veteran recalls that in 1971, he had a very severe muscle spasm in his lower back and sought treatment with a private doctor. He was hospitalized for a week then had physical therapy for 3 to 4 months. After heat treatments, his spasms were “taken care of” but he recalls he had pain on and off ever since. On VA Form 21-4142, there was a notation from the Veteran that he had contacted the hospital and was informed that no records of this event were available as records are destroyed six years following a patient’s last date of service. Private treatment records show in February 1998, the Veteran complained of back spasms for the past twenty-five years, but it did not occur frequently. He was diagnosed with lumbar strains and spasms. In January 2000, records show the Veteran complained of minor back strains intermittently in the past, which always resolved with Ibuprofen and rest, but this time, he was working in an unusual position when he had pain in his back, which went to his hip and leg. An MRI revealed there were bulging discs and L4-5 and L5, S1 and degenerative changes. He was diagnosed with lumbar herniated disc with radiculopathy. On followup in August 2000, the Veteran stated his pain was almost completely resolved. In treatment records dated in March 2015, the Veteran’s private provider, Dr. K, remarked that the Veteran has had symptoms greater than forty years starting from when he was in service. The Veteran was afforded a VA examination in October 2019. The VA examiner noted that the Veteran had back pain in 2000 and a flare up again in 2015. The examiner considered Dr. K’s opinion, however, the VA examiner stated it was obviously purely based on the Veteran’s unofficial report to him, not on actual service records or facts. The VA examiner opined that with the lack of evidence of any in-service issues and the denial of back problems at separation, it is less likely than not that the Veteran’s degenerative disc disease was incurred during service. Another VA medical opinion was obtained in October 2020. The provider noted the absence of any complaints in the STRs and the negative findings of any back disability during the service separation examination. This was considered a valid history for the Veteran’s period of service. The examiner also noted the Veteran reported the onset of pain in 1971 or 1972, which veracity was accepted, but this was not considered a continuation of any in-service complaints given the absence of any complaints in the STRs. Further observing the absence of any notations until the late 1990’s when degenerative disc disease (DDD) and degenerative joint disease (DJD) were found, which are a consequence of the natural aging process and are unrelated to lumbar strain, the examiner considered the likelihood these were present at service separation in 1969 to be almost zero. The examiner also considered it unlikely that the Veteran could have gone a span of 27 years without seeking medical care if DDD and DJD were present since service, given the natural history and symptoms of degenerative spine disease or chronic strain, which is a progression. This also made it unlikely these conditions arose in service. With regard to the private opinion from Dr. K, the examiner stated a 40-year history would be consistent with the 1971 timeline, but would not confirm onset in service. The Board concludes while the Veteran has a current chronic back disability, the greater weight of the evidence is against the claim. The private provider’s remark that placed the onset of the Veteran’s disability in service is seen as is merely a restatement of what the Veteran reported to him. There is no indication that the provider reviewed service treatment records, and the opinion did not account for the lack of documentation of in-service back injuries. The Board finds this comment has little probative value. Since the purpose of STRs are to document in-service medical complaints and treatment, and are created contemporaneously with the complaints and treatment, they are accorded significant probative value. As these do not reflect any in-service back complaints, they weigh heavily against the claim. Although the Veteran now reports he did not provide an accurate history when examined in connection with his service discharge, this admission that there are circumstances when he would not provide an accurate medical history casts doubt on any medical history he provides and further serves to undermine the claim. Moreover, that he has reported his back discomfort was on and off or intermittent over the years demonstrates that a continuity of symptoms is not shown. Also weighing against the claim is that it was more than one year after service that the Veteran sought medical care for back complaints. As the Veteran does not have the medical expertise to link this episode to service, and no other evidence links these complaints to service, this would reflect an onset post service, which weighs against the claim. Likewise, the VA medical opinions weigh against the claim, the most probative of which is the October 2020 opinion. That individual performed a detailed review of the Veteran’s service and medical treatment records, and also referenced a medical treatise. He specifically opined the Veteran’s back disorder was not related to service, and as set out above, explained why that was the case. In these circumstances, the Board concludes that the preponderance of the evidence is against the claim for service connection for a back disorder. Therefore, the appeal is denied . MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.