Citation Nr: 21001587 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-16 953 DATE: January 11, 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 has a low back disability that was incurred in service or within one year of separation from service, that is related to his active duty service, or that has been caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office. In October 2011, the Veteran provided testimony at a Board hearing before a Veterans Law Judge who has since retired. The Board sent a letter in October 2020 offering the opportunity for a new hearing and the Veteran did not respond. The transcript of that hearing is included in the claims file and has been considered in this decision. The case was remanded for further development in January 2012, November 2013, and May 2018. In April 2020, the Veteran submitted a VA Form 10182 Notice of Disagreement to appeal the issue of entitlement to a total disability rating based on individual unemployability with a hearing before a Veterans Law Judge. This hearing is still pending and will be addressed at a later date. Service Connection for a Low Back Disability The Veteran contends that he has a low back disability that was caused by working as a heavy vehicle mechanic in Vietnam or, in the alternative, that has been caused or aggravated by his service-connected left knee slight subluxation and chondromalacia with osteoarthritis and patellar tilt. The Veteran wrote in June 2009 that he had to use a “lift and jerk” motion to clear the spindle under the trucks in service, and this caused damage to his back and knees. He wrote that after he reenlisted in 1971, he began having problems with his back, and that after the service, he knew that he could not be a mechanic because of his problems with his back. In August 2010, he wrote that in February 1971, he hurt his back in service, but was told not to report the injury at the time because it would show weakness. He wrote that he has had continuous, worsening back pain since that time. At an October 2011 Board hearing, the Veteran stated that he had treatment for low back pain in service for four weeks which prevented him from being able to bend over and change tires. He stated that he has had back pain ever since that time, but that he did not see a doctor for his back pain because he did not want to hurt his chances of being hired because of having back problems. He also discussed how his gait is impaired due to his left knee disability, putting extra strain on his back. He stated that three orthopedic surgeons had told him that his left knee disability chronically aggravated his back disability, but that they would not put that into writing. At an October 2011 Board hearing, the Veteran and his representative discussed how the Veteran’s car accident in 1979 was for a neck injury and not the back. The Veteran also stated that in 1995, he had bent over at work and could not stand up due to back pain. He said that he did file a Workman’s Compensation claim at that time stating that his back went out at work. He was unclear about whether that claim was granted, because he was told at the time that his injury was actually related to his military service. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of that disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, including arthritis (degenerative joint disease) will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101 , 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran’s service treatment records show that in February 1971, he reported lower back pain. He was found to have probable muscle ligament pain. On the Veteran’s November 1973 and October 1974 Reports of Medical History, he checked “yes” for arthritis, rheumatism or bursitis, but checked “no” for recurrent back pain. The Veteran’s October 1974 separation examination found his back to be normal. The Veteran has a current low back disability, which is shown by his VA treatment records, which include multiple complaints of low back pain, and was diagnosed by the March 2010 VA examiner as lumbar spine mild degenerative disk disease. While the Veteran did report having back pain on one instance in service, and he has a current back disability, the Board finds that the preponderance of the evidence is against finding that the Veteran’s current disability is related to any event or injury in service or that it has been caused or aggravated by his service-connected left knee disability. There are no medical treatment records available from 1974 to 2002, and the Veteran and his spouse testified that he generally did not go to the doctor for medical care during that time. The Veteran established care with VA in February 2002. At his initial evaluation, he reported that several years ago he had been working as a plater and developed some back pain and was told he had a herniated disk. The Veteran attended a VA examination in March 2010. The Veteran reported that he might have injured his back while working as a mechanic in service, but he could not remember when. He also stated that he had injured his back in a car accident after service in 1979 and that he had a work-related back injury in 1995. The examiner diagnosed him with lumbar spine mild degenerative disk disease. He found, however, that the condition was not likely related to incidents in military service and it was not likely that the condition was related to or aggravated by a left knee disability. The examiner wrote that it was more likely related to incidents and activities which occurred after service, such as the 1995 work injury, and to aging. Because the Board found that the March 2010 medical opinion did not contain sufficient rationale, and it did not address the relationship of the Veteran’s back to his left knee disability, a new VA medical opinion was obtained in December 2018. The examiner reviewed all available records, including lay statements, and found that the low back disability was less likely than not incurred in or caused by service. She explained that because the Veteran’s 1974 separation examination found no back condition and there was no evidence of continuous symptoms or continuous medical treatment since military discharge, it was more likely that the disorder was due to a significant intervening, interceding event, and less likely related to a musculoskeletal condition documented during military service. She wrote that in the Veteran’s post-service period, the Veteran worked many jobs that involved prolonged repetitive bending and heavy lifting (working in shipping, driving a forklift or truck, and working as a plater), all of which were risk factors for a low back injury, as well as working as a bar owner from 1996, which required occasional heavy lifting. She wrote that the Veteran developed degenerative disc disease as a result of wear and tear as part of the normal aging process. The Board finds the December 2018 opinion to be highly probative evidence which weighs against the claim. It was written by a competent physician who had reviewed all of the medical records, including consideration of the Veteran’s lay assertions. She provided extensive, adequate rationale, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore finds that the most probative medical evidence of record indicates that the Veteran’s low back disability is not related to his service. The Board has also considered the September and November 2012 VA treatment records from the Veteran’s physician, C.M., which state that the Veteran had a long history of back pain dating to a documented back injury in the military in February 1971. The physician wrote that he could not find the record for the Veteran’s Compensation and Pension examination and that he had not reviewed his military records. He wrote that the Veteran’s pain was worsening and was interfering with his ability to work, and that the chronic low back pain was as likely as not due to a back injury in the military in 1971. C.M. also completed a November 2012 Disability Benefits Questionnaire. He wrote that the Veteran had a history of a back injury in February 1971 and had back pain since his injury in the military. The Board is unable to afford significant probative weight to the statements made by C.M., as he did not review the Veteran’s medical records and therefore was not aware of the evidence which weighed against the Veteran’s lay assertions, such as his denials of having back pain in 1973 and 1974 or his report in 2002 that he had started experiencing back pain several years earlier while working as a plater. The physician appears to have relied entirely on the history provided by the Veteran at that time, which is incomplete and not consistent with the medical evidence overall. Because C.M. did not have access to the Veteran’s full records and was not aware of this additional evidence, including that he had experienced a significant back injury at work in 1995, the Board is unable to assign much probative value to his medical opinion regarding the cause or onset of the Veteran’s low back disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (An expert opinion is adequate only if it is based on a correct factual premise.). The statements provided by C.M. are therefore found to be outweighed by the highly probative December 2018 medical opinion. While the Veteran has alleged that he had continuing back pain from the time of service to the present, the Board does not find that his statements are sufficient to establish that he incurred a chronic back disability in service that continued to the present day. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to state that he had feelings of back pain during the years following service, but this does not establish that they were caused by working on trucks in service or that all instances of back pain were due to the same chronic etiology. There is also no evidence that the Veteran was diagnosed with arthritis/degenerative joint disease in service or within one year of separation from service. Furthermore, the Board finds that the Veteran’s assertions that his back disorder is related only to his injury in service and not to any subsequent, intervening cause not to be credible. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the Board as fact finder). The Veteran stated that he was told in service not to seek treatment for his back pain because it would appear weak, but this does not explain why he would specifically deny having chronic back pain in both 1973 and 1974 on his Reports of Medical History, while he did report numerous other symptoms, including shortness of breath, swollen or painful joints, pain or pressure in the chest, frequent or painful urination, eye trouble, dizziness or fainting spells, frequent indigestion, foot trouble, frequent trouble sleeping, and depression or excessive worry. The examinations the Veteran was given at that time found a normal spine. The Board therefore finds that the evidence in the service treatment records weighs against finding that the back pain reported by the Veteran in February 1971 continued as a chronic condition throughout the Veteran’s service, and the back pain noted in 1971 had resolved by the time of his 1973 and 1974 examinations. In reaching this conclusion, the Board considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the Federal Circuit determined that the Board had erred by finding that a claimant’s report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case is clearly distinguishable as the Board is not relying merely upon a general absence of complaints during service. Instead, the Board is relying on normal in-service examination findings and the Veteran’s specific in-service denials of relevant symptoms of chronic back pain in November 1973 and at the time of his separation from service. The Board finds that the most probative evidence therefore does not demonstrate that the Veteran had a chronic back disorder which began in service or had a continuity of symptomatology since that time. The Board finds that it would be highly unlikely that the Veteran would not be honest on his 1973 and 1974 Reports of Medical History or to his medical treatment provider when he was establishing medical care with VA in 2002. A history reported by the appellant for treatment and evaluation purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value, and statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cf. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran’s testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). The Board finds that the medical evidence therefore outweighs the much later assertions of the Veteran that his back problems occurred continuously since service and were not related to a work injury in 1995. The Board also finds that the preponderance of the most probative evidence is against finding that the Veteran’s low back disability has been caused or aggravated by his service-connected left knee disability. The December 2018 VA examiner found that it was not at least as likely as not that the Veteran’s disability was caused or aggravated beyond its natural progression by a service-connected condition. She explained that evidence suggested that an injury in one extremity rarely caused a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the center of gravity of the body while walking, significant shortening of the injured limb, and abnormal gait pattern has been present for an extended period of time. She wrote that the medical records showed no evidence of a gait disturbance secondary to the service-connected injury, and it was unlikely that injuries such as a meniscal tear, which caused a mild or moderate degree limping over a relative short period of time would have any major detrimental effects on the lumbar spine or opposite lower extremity. She cited articles to support this finding. The Board finds the December 2018 opinion to be highly probative evidence, as it was written after a competent medical professional reviewed all of the Veteran’s medical records, she provided an adequate rationale, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board therefore finds that the most probative medical evidence of record indicates that the Veteran’s low back disability was not caused or aggravated by his left knee disability. There is no other competent medical evidence indicating that the Veteran’s low back disability has been caused or aggravated by his service-connected left knee disability. While the Veteran testified at the October 2011 VA examination that he had been told by several different orthopedic surgeons that his knee problem had caused problems with his walking, his hips, and ultimately his back, the Board is not able to assign this assertion any probative weight towards the medical question at issue. The Veteran is competent to report what he was told by a medical professional, but it is not clear what these physician’s statements were based on or what their actual rationale was for making this statement. The Veteran was not able to provide the names of these doctors or to obtain any written medical evidence from them. The Board is therefore unable to determine whether any of these assertions could hold any probative weight. The only actual, written evidence from a medical professional who reviewed the claims file and provided rationale for her findings is that of the November 2018 VA examiner. The Board has considered all of the Veteran’s lay statements, and while he may sincerely believe that his back pain is due to the strain he underwent in service or due to gait problems caused by his left knee disability, lay assertions on the etiology of this condition are not competent medical evidence that can establish a claim, and they are less probative than the findings of the December 2018 medical expert and they are outweighed by this competent medical evidence. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). (Continued on the next page)   In sum, the most probative evidence preponderates against finding that the Veteran had a chronic low back disability was incurred in service or within one year of service, that his disability is related to any event or injury in service, or that a low back disability has been caused or aggravated by a service-connected disability. Entitlement to service connection for a low back disability is denied. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.