Citation Nr: 21001036 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-14 252 DATE: January 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s low back disability began during active service or is otherwise related to an in-service injury or disease, or is proximately due to or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May to September 2002, and from January 2003 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As briefly addressed in the most recent Board remand (October 2018), the Board denied this claim in a July 2017 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court), which issued an order in June 2018, granting a joint motion for remand (JMR) filed by both parties, and vacating and remanding the July 2017 Board decision. Specifically, the parties agreed that the Board failed to fulfill its duty to assist as the Board relied on two inadequate VA medical examinations and opinions (January 2010 and July 2014), in addition to providing an inadequate analysis regarding continuity of symptomatology. The Board remanded the claim in October 2018 for obtaining outstanding VA treatment records and a VA examination/medical nexus opinion. As those records have been obtained, the Board finds that there has been a substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative raised any issues with the duty to notify or 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”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is caused by or aggravated by a service-connected disability, commonly referred to as secondary service connection. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439, 448 (1995) (“... when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability...over and above the degree of disability existing prior to the aggravation”). In deciding the Veteran’s claim, 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, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence 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 herein. The Veteran contends her low back disability, which is “chronic” in nature, is related to her service in Iraq, where she had to carry heavy gear. The representative suggests that considering she underwent a VA examination just approximately a year-and-half after separation from service (January 2010), during which time the Veteran complained of pain, it is arguable that the Veteran warrants service connection for her claimed back disability. It is not in question that the Veteran has a current disability concerning the low back, as she has been diagnosed with lumbosacral strain and degenerative arthritis of the spine during the appeal period. The Veteran’s service treatment records include a one-time complaint of back pain in February 2003, with no indication of any back related diagnosis. While there are multiple post-deployment health assessments of record (October 2006, November 2006, and June 2007), all of which document the Veteran’s complaint of back pain during deployment and thereafter, none of the voluminous military clinic outpatient records dating from the Veteran’s return from deployment until the October 2007 Medical Board reveal any treatment or complaints relating to her back. An October 2007 Medical Evaluation Board Narrative Summary completed by an orthopedic physician documented only the Veteran’s complaint of unrelated orthopedic conditions and her being given a permanent L3 profile for those conditions, and she presented full and painless spine range of motion on physical examination. The October 2007 Medical Evaluation Board records also include an orthopedic note that the Veteran had a history of low back pain that was no longer present. In a January 2008 discharge physical examination medical history questionnaire, the Veteran explicitly denied any recurrent back pain or back problems, and only reported various non-back related medical problems. The Veteran was not found to have any spinal abnormalities at that time. Ultimately, she was discharged for disabilities unrelated to a back condition—left shoulder, left knee, plantar fasciitis, and pes planus. Her February 2008 Report of Medical Examination shows complaints and diagnoses concerning other unrelated orthopedic conditions, but none relating to her back. While the Veteran underwent a VA orthopedic examination in April 2008 for various joint disorders, she only reported unrelated orthopedic conditions, and was ultimately diagnosed with only bilateral flat feet and plantar fascitis. There was no indication of any back related symptoms or abnormalities at that time. Although the Board acknowledges that the Veteran’s claimed low back condition is a chronic disease under 38 C.F.R. § 3.309(a) subject to presumptive service connection consideration, the Veteran is not entitled to service connection under this presumption. In doing so, the Board finds that there is no probative evidence that provides that this condition manifested to a compensable degree within one year of the Veteran’s military discharge. Notably, despite complaints of back pain in service, the Veteran’s discharge physical examination/MEB reports show no indication of any back related condition, but only other unrelated orthopedic conditions. In fact, she expressly denied any back pain at separation, and the MEB indicated she had a history of back pain that was no longer present. The Veteran never claimed that she was diagnosed with any back condition within one year of separation from service. In fact, it appears that she was first diagnosed with paraspinal muscle strain/acute lumbar strain in 2010 and back arthralgia in November 2011 (see November 2011 VA treatment records; January and July 2010 private treatment records). The VA examination done within one year of her separation showed no back-related complaints, so not only were there no manifestations of a back condition at the time of separation, there were similarly none within one year of service. Thus, her disability did not manifest to a compensable degree within a presumptive period. As for the application of continuity of symptomatology, the Board is cognizant of the Veteran’s claim that her condition is “chronic.” Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Here, as discussed above, there is no persuasive evidence of a chronic back-related condition during service, considering the explicit denial of back-related symptoms at separation, the express notation in the MEB that her history of back pain was no longer present, and her failure to raise any concerns concerning her back at the VA examination done within a year of service despite having the opportunity to do so and despite raising other orthopedic type complaints. Therefore, continuity of symptoms after service are needed to support her claim, and the probative value to be assigned that type of evidence must be weighed just like any other evidence. Here, the Board expressly rejects the Veteran’s allegations of continuity as not credible. While she is competent to report a subjective symptom such as back pain, that does not automatically mean her allegations are accepted as credible. During the January 2010 VA examination—which was conducted only a year and a half since separation—she stated that she began experiencing lumbar pain in 2007/2008. Any allegation that she had experienced back pain continuously since that time is, however, inconsistent with and outweighed by evidence dated prior to that VA examination. First, the service records themselves refute any allegation she had chronic back pain at the time of her separation from service. She had an opportunity during her MEB to discuss her back pain during an orthopedic evaluation, and it was noted her HISTORY of back pain had resolved. She again had an opportunity at the time of her separation to report such, but she denied it. Considering she took the time to complete her medical history and detail other medical problems she was having, it is perfectly reasonable to assume she would have also complained of back pain if that were the case. Second, as for after service, she had a VA examination a few months afterwards, where she reported numerous other orthopedic problems, but did not report any back-related issues. Again, the fact she had an opportunity to do so, but did not, weighs heavily against any allegation she makes now she had continuous back symptoms after service. Even assuming perhaps she wasn’t having back pain at that particular moment in time, so she didn’t report it, she then established care with VA in January 2009, during which time she sought treatment for and complained of various orthopedic conditions, to include shoulder and plantar fasciitis pain, yet reported none relating to her back. Furthermore, evaluation of her back was normal on physical examinations done by VA in January and February 2009. Therefore, there are medical records conclusively showing treatment for other orthopedic disabilities within one year of service, during which the Veteran could have complained of back pain, yet did not. Combined with her explicit denials of such at separation from service, all this evidence, in totality, outweighs her statements made in connection with a claim for compensation that she had continuous back-related symptoms after service. Again, the Board expressly rejects that evidence as not credible and finds there is no persuasive evidence of continuity of symptoms. The JMR indicated that the Board’s prior analysis was incorrect as records from 2008/2009 showed “back issues.” The Board disagrees with the JMR’s characterization of the March 12, 2008 note from Darnall Medical Center as showing a back-related problem. This note showed a complaint of joint pain, localized in the shoulder, and the lengthy list of “problems” did not mention the back or spine at all. The entire chief complaint section of the report discusses her shoulder. The only possible back reference is that her pain was located in the posterior left shoulder and upper back. It is clear from a reading of the context of the entire report that this “upper back” reference was indicating the posterior shoulder area, and in no way implicates any lumbar spine or lower back issues, which is the claim here. The JMR also referenced February and March 2009 notes from Darnall Medical Center, which noted a complaint of back pain. Both of these records concerned routine prenatal examinations. The Board does not find these notations persuasive evidence of continuity, considering the evidence dated prior to and after these notes, which refute such a finding. First, the evidence discussed above dated contemporaneously with separation from October 2007 to February 2008 and the evidence after service from the VA exam in April 2008 through her establishing care with VA in January/February 2009, all showed a lack of any complaint despite the fact she was receiving treatment for other orthopedic conditions and reporting her medical history. During prenatal evaluations on July 15, 2008, August 12, 2008 and November 5, 2008, she expressly denied experiencing any upper or lower back pain. Furthermore, although she raised a complaint of back pain on February 19, 2009, just 10 days earlier, she expressly denied experiencing any upper or lower back pain during a prenatal examination. Therefore, evidence prior to the February 19, 2009 and March 2009 complaints refute there had been continuous symptoms prior to that time. Moreover, evidence dated after the March 2009 notation of back pain, but prior to her filing her claim for VA compensation, also refute she experienced continuous symptoms. After giving birth in mid-March 2009, she had several follow-up appointments at Darnell, none of which reflected any complaint of continuing back pain. It was not until after her claim in late 2009 that she began to complain of back issues in 2010. Therefore, although the Board has considered the records identified in the JMR, it still concludes there is no persuasive evidence of continuity of symptoms. Accordingly, there must be competent evidence establishing a relationship between the back condition diagnosed after service and military service. Turning to the medical etiology opinions of record, the Board notes that the Veteran underwent multiple VA examinations for her lumbar condition throughout the appeal period. Pursuant to the January 2010 VA examination, the Veteran was diagnosed with recurrent bilateral lumbar paraspinal muscle strain, and the examiner provided a negative direct service connection opinion, explaining that there was no particular incident of trauma nor pathology to support her reports of pain (ie. no radiographic indications to indicate anatomic derangement as an etiology of the pain). In August 2014, although the examiner noted that she was “unable to solve without resorting to mere speculation,” the VA examiner then thoroughly examined and enumerated medical documentation/evidence showing a lack of chronicity and/or continuity since separation, and stated that there is no medical documentation that the Veteran reported any incidences of back injury or trauma after her discharge from service. Since the examiner found an opinion could not be reached without speculation, the Board assigns no probative value for or against the claim, since no opinion was reached. Finally, pursuant to the most recent Board remand, in June 2019 (during which time the Veteran was diagnosed with degenerative arthritis and lumbar strain), the VA examiner furnished a negative direct service connection opinion. Even after acknowledging the Veteran’s in-service back complaint, the examiner highlighted the fact that there is no documentation of any specific lumbar back injury in service, that the Veteran was found to have low back pain that was no longer present, with full painless range of motion, during the Medical Board evaluation, as well as the Veteran’s denial of any back problems during the separation examination. There are no medical opinions to the contrary. The 2010 and 2019 VA opinions were provided after extensive review of all pertinent records, to include the Veteran’s reports/statements, and service records, and supported by a rationale that accurately cited to concrete factual findings. Thus, the Board finds that the Veteran is not warranted direct service connection. The Board acknowledges lay statements submitted by the Veteran’s acquaintances, in which they reported witnessing the Veteran complaining about her back pain/muscle spasms and recalling many occasions in which the Veteran was unable to come to work or was late due to back pain. See December 2009 and October 2010 lay statements. The Veteran herself also submitted a statement that she complained of her back several times in service, that her pain affects her ability to bend/pick things up, and that she experiences muscle spasms. See December 2009 Statement in Support of Claim. While a veteran is competent to report any symptoms and although the statements are competent as they are based on recollections of the professing witnesses, to the extent that furnishing a medical etiology opinion requires complex medical knowledges, they are not competent to provide a medical opinion linking her back condition to service. Thus, to that extent, the Board assigns more probative value to the medical evidence of record. With regards to secondary service connection, the August 2014 VA examiner opined the current back condition is less likely than not related to, caused by, or secondary to the Veteran’s service-connected bilateral foot condition and knee condition. The examiner noted she could find no medical documentation or medical research to support finding that Plantar Fasciitis or limited flexion of the knee causes back conditions. In July 2018, the VA examiner also provided a negative opinion, stating that medical science does not support that plantar fasciitis, flat feet, or degenerative arthritis of the knee and shoulder causes degenerative disease of the lumbar spine. Although the JMR found these opinions inadequate because they did not address whether the service-connected conditions aggravated the back condition, there were no indications that the causation opinions from those examinations were inadequate in any way. Finally, the June 2019 VA examiner furnished a negative nexus opinion, noting that the medical evidence does not support any of the service-connected conditions (left shoulder strain, left patellofemoral pain syndrome, and pes planus with plantar fasciitis) cause or aggravate bilateral lumbar paraspinal muscle strain or degenerative disc disease of the lumbar spine. Therefore, three VA examiners concluded causation was not shown, and one VA examiner found no aggravation. There are no medical opinions to the contrary, and each VA examiner provided the opinions after reviewing all pertinent records, to include the Veteran’s reports and treatment records, and also researched medical literature. Thus, the Board finds that the Veteran is not warranted service connection even under the theory of secondary service connection. (Continued on the next page)   Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.