Citation Nr: 21002675 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 11-14 744 DATE: January 14, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability did not manifest in service or within one year from service, and is not otherwise shown to be related to service. 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 December 1970 to April 1974. In May 2018, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The Veteran’s claim was previously before the Board in August 2018. At that time, the Board determined that while the Veteran’s service treatment records were unavailable, it was not clear whether the Veteran had outstanding hospital records which could be obtained by the RO. As the medical records had not been obtained, the Board found a remand was necessary. In addition, the Board found that the Veteran should be provided a VA examination for his currently diagnosed back disability. The Veteran’s claim was also before the Board in September 2020. The Board determined that the Veteran should be provided a new, adequate VA examination. That development having been completed, the Veteran’s claim will be adjudicated below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for a low back disability The Veteran contends that his back disability is due to his period of service. Specifically, the Veteran has provided that in 1972 while on active duty he fell and was hit directly in the back and was required to go to the hospital. See Hearing Transcript at 3. The Veteran testified that he was seen at Eglin Air Force Base main hospital. Id. Unfortunately, neither the Veteran’s service treatment records nor his hospital records are available. The Veteran has provided that it is his understanding that records are deleted from the hospital he attended if a veteran does not visit for more than one year. See January 2020 Correspondence. Nonetheless, he maintains he was seen at the hospital for his in-service back injury and would like his credible lay statements to be considered. Id. The Board is aware that when the service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist, as well as an obligation to search alternative form of medical evidence which may support the Veteran’s claims. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3Vet. App.542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App.365, 367 (1991). In January 2020, the Veteran underwent a VA examination. The examiner determined that the Veteran’s back condition was less likely than not incurred in or caused by the Veteran’s active service. The examiner reasoned that based on the currently available documents, the Veteran’s back problems could be dated back to a work injury in 2000. The examiner noted that there were no service treatment records available, nor objective evidence of any symptoms or medical attention for back pain between separation from service in 1974 and the work-related back injury in 2000. The Board has previously determined the January 2020 VA examiner’s opinion to be inadequate because it did not consider lay statements. In September 2020, the Veteran was afforded an additional VA examination. The examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claim in-service injury, event, or illness. The examiner reasoned that following a review of the Veteran’s records, his statements, the statement of the Veteran’s military service reference, and current caring medical provider, the Veteran’s back condition began in 2000. The examiner explained that though the Veteran had no records to support his story, the report of having a door fall onto his back and requiring physical therapy did not equate to supporting the claim that he developed a chronic or reoccurring low back pain or condition. The examiner noted the Veteran’s active service, his discharge with no indication of any medical discharge or severance pay, and the Veteran’s doctor’s note that showed that he had a professional relationship with the Veteran since 2000 and indicated that he had suffered from pain since then. The Veteran’s history, though, supported by the notes, showed that he had suffered an injury to his back and was involved in a workman’s compensation case. Notes from 2004 show that he had continued pain in the lower back. The only reference to an in-service or military-related injury was in the form of a doctor’s indirect reference to the Veteran’s statement. Notes from 2000 and 2004 both note new injuries to the Veteran’s lower back; the examiner determined that even if the Veteran had notes showing he had lower back pain in the service and had treatment, more recent notes were very specific to new injuries and a new onset of pain. In addition, the examiner noted that the Veteran’s fellow servicemember gave an account of the Veteran’s injury in service; however, this statement also did not show any indication of an ominous prognostic indication. The examiner explained that military life in and of itself is difficult and can be hard on the spine. However, the great part of injuries to the lower back are self-limiting and do not require a long history of medical attention. The examiner concluded that in the case of the Veteran, the available evidence supported the history that the Veteran injured his back in the service, but that said injury was a self-limited injury that was healed in time with minimal intervention. He found no indication that the Veteran separated from service with a significant low back pain or condition, and records after separation showed that the Veteran’s current back pain was more likely than not due to one of the two injuries mentioned in 2000 or 2004. As such, it was less likely than not that the Veteran’s current back conditions are due to his in-service injury in 1972. The Board finds that the September 2020 VA opinion is competent and credible as the examiner considered all relevant evidence in the claims file, and provided a thorough rationale. The examiner carefully considered the record and drew conclusions despite the Veteran’s missing service treatment records, ultimately finding that the Veteran’s injury in service did occur due to the Veteran’s lay statements and a lay statement from a fellow servicemember. Nonetheless, the examiner determined that the injury the Veteran suffered from in service was likely self-limited and healed, and later injuries the Veteran suffered more probably led to his current back injury. As the examiner provided an adequate, detailed opinion and rationale, the opinion is afforded high probative weight regarding the issue of a direct nexus between the Veteran’s low back disability and active duty service. With respect to the Veteran’s contention that his low back disability was caused by service, the preponderance of the evidence is against that claim. The September 2020 VA examiner opined that the Veteran’s low back disability was less likely than not related to service. There is no other medical evidence in the Veteran’s file to the contrary. The Board has considered the Veteran’s lay statements asserting a nexus between his low back disability and service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorders of the back. Further, the etiology of the Veteran’s low back disability is a question involving internal and unseen system processes unobservable by the Veteran. As the record does not reflect that the Veteran has such understanding or ability to relate a low back disability to his active service, any contention regarding the etiology of his back disability does not have probative value. The Board instead places great weight upon the September 2020 VA examiner’s opinion. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309 (a) for arthritis and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303 (b); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Unfortunately, as has been noted, the Veteran’s service treatment records are not available. The earliest report of low back pain by the Veteran on record is from 2000 due to a work injury. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. The medical evidence of record indicates that the Veteran’s low back disability is less likely than not due to service. As such, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s low back disability was due to his period of service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.