Citation Nr: 21003521 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-02 024 DATE: January 21, 2021 ORDER Entitlement to service connection for a chronic back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a chronic 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 chronic back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to August 1984 and March 2003 to May 2003. The Veteran also had additional service in the Navy Reserve. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in October 2012. This matter was previously remanded by the Board for additional development in November 2017 and December 2019. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the appellant nor her representative has 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) (applying Scott to a duty to assist argument). In this case, the Veteran had active duty service in the United States Navy from May 1983 to August 1984 and from March 2003 to May 2003 with additional service in the Navy Reserve with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). For VA compensation purposes, a veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a chronic back disability. The evidence of record shows that the Veteran fell off a truck in March 2002. She reported that she was exiting the passenger side and missed the step and fell backwards onto her back, head, and left arm. A physical examination revealed left upper back/trapezius muscle tenderness and she was diagnosed with neck and back spasms, improving, status-post fall. She was prescribed Flexeril, Motrin, and instructed to return to the clinic as needed. There is no record of any follow-up treatment related to that incident. See March 2002 service treatment records. In May 2002, the Veteran was involved in a motor vehicle accident. She reported that she was stopped at a red light and was rear-ended. She was wearing her seat belt. She complained of neck and back pain. X-rays of the lumbar spine revealed mild scoliosis but were otherwise normal. There was no fracture, focal bony destruction or acute abnormality noted. She was treated for a neck/back strain with anti-inflammatories and pain medications, released on one day of bed rest and put on light duty for five days. See May 2002 service treatment records. There is no record of any follow-up treatment. The Veteran has a current diagnosis of mild degenerative changes in the lumbar spine and a chronic low back strain. See March 2011, February 2012 VA treatment records; February 2012 VA examination report. However, the evidence does not show that the current back disability is related to her military service or that she was diagnosed with arthritis of the lumbar spine within one year of discharge. Initially, the Board notes that it is still unclear whether the March 2002 and May 2002 incidents occurred during a period of ACDUTRA or INACDUTRA. Nor is there any formal line-of-duty determination. However, even giving the Veteran the benefit of the doubt that these incidents occurred during a period of ACDUTRA/INACDUTRA in the line of duty, the evidence is insufficient to establish a nexus between her current disability and the in-service injuries. As stated above, there is no record of any follow-up treatment during service and x-rays were negative except for mild scoliosis. In March 2003, she denied any past or present recurrent back pain or any back problems. It was specifically noted that there were no residual symptoms from the May 2002 motor vehicle accident. See March 2003 service treatment records; pre-deployment questionnaire. In May 2003, she again denied back pain and reported her health as good. See May 2003 post-deployment questionnaire. In May 2004, she again described her current health as good and denied any past or present recurrent back pain. A medical examination found mild scoliosis but was otherwise normal. There is no evidence of complaints, diagnosis or treatment of a chronic back condition until March 2011, when she complained of ongoing low back pain and x-rays revealed mild facet arthropathy at L4-5 and L5-S1. She was diagnosed with lumbar pain and prescribed heat, stretching, ibuprofen, and Flexeril. The Board notes that there is no evidence that the Veteran had arthritis at separation or within one year thereafter. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, the Veteran is not entitled to service connection for arthritis of the spine, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-7. The Board does acknowledge the Veteran’s statements that she has had back problems since the injuries in service. The Board notes that the Veteran is competent to report her experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or she has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report symptoms since the 2002 injuries in service, the Board finds that such statements are not reliable. The allegations are inconsistent with the contemporaneous record. As set forth above, the Veteran denied recurrent back pain in March 2003 and it was noted that she had no residual symptoms from the May 2002 motor vehicle accident. In addition, she did not seek follow-up treatment during her remaining time in service, and the May 2004 retention medical examination found her spine to be normal except for mild scoliosis. On the May 2004 report of medical history, she again denied past or present recurrent back pain. Furthermore, the Veteran sought medical treatment for various ailments after service, but there were no complaints of back pain until 2011. See November 2017 VA addendum medical opinion. The Board notes that the Veteran submitted a lay statement from J.B. (initials used to protect privacy), who stated that she has suffered from constant back pain and stiffness since the 2002 injuries. See April 2011 lay statement. However, J.B. has only known the Veteran since 2005, several years after the in-service injuries. Id. The Board also notes that the Veteran has alleged she fell off a truck in 2003, while stationed in Greece. See January 2014 VA Form 9 substantive appeal; March 2015 correspondence; December 2020 appellate brief. There is no evidence of any in-service event or injury in 2003, other than the Veteran’s allegations. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Based on the foregoing, the competent, credible, and most probative evidence does not show that the Veteran had a chronic back disability that manifested in service or within one year thereafter or that she had continuity of symptomatology. In addition to the lack of evidence showing that a back disability manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current back disability to the Veteran’s military service. The Veteran was afforded a VA examination in February 2012. The examiner noted the diagnosis of chronic low back strain and the reported history of injuries in-service following a motor vehicle accident and falling out of a truck. The Veteran stated that her back has gradually worsened over the years. The examiner noted that x-rays showed mild rightward convex curvature of the mid- to distal thoracic spine but there was no significant discogenic disease or evidence of previous injury. However, as the examiner did not have the opportunity to review the claims file, no nexus opinion was provided. See February 2012 VA examination report. An addendum opinion was obtained in April 2012. A different examiner reviewed the claims file and opined that the Veteran’s current back disability was at least as likely as not related to the injuries in service. She noted that the service treatment records document that in March 2002 she fell out of a truck and injured her neck and back, diagnosed as spasm and strain of the upper back/trapezius muscle. In May 2002, she was rear-ended in a motor vehicle accident. X-rays from February 2012 showed mild degenerative changes but no evidence of prior injury or malalignment. In support of her positive nexus opinion, the April 2012 examiner explained that the Veteran reports progressive and chronic neck and back pain since the 2002 injuries, and the injuries occurred within months of one another so they may have had a cumulative effect. See April 2012 VA addendum medical opinion. Following the November 2017 Board remand, another VA medical opinion was obtained. The November 2017 examiner noted that there was no injury documented in the service treatment records for the Veteran’s period of active service from March 2003 to May 2003. The November 2017 examiner opined that her current back disability is less likely than not related to military service, explaining that her 2002 injuries appeared to be self-limiting and resolved prior to separation. Treatment records from 2007-2008 indicate no chronic neck or back problems. There is no evidence of treatment for neck or back conditions until 2011. In addition, the record indicates that after service she was employed in pharmacies where she was on her feet for extended periods and also used poor ergonomics. See November 2017 VA medical opinion. The RO obtained an addendum medical opinion in March 2019. After reviewing additional medical records, the examiner stated that no change in his prior opinion was warranted. The examiner again opined that it was less likely than not that the Veteran’s current back disability was related to or incurred during military service, to include falling from a truck and being involved in a motor vehicle accident, nor were her current conditions aggravated by her period of active service in 2003. See March 2019 VA addendum medical opinion. The Board acknowledges that the April 2012 examiner opined that it was at least as likely as not that her current back disability was related to military service, explaining that because the 2002 injuries occurred close in time they “may have had a cumulative effect.” However, the examiner’s use of the word “may” is equivocal and speculative. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The use of the words “possible,” “may,” or “can be” make an examiner’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). As such, the April 2012 examiner’s opinion is entitled to little probative weight. In addition, the Veteran has made inconsistent statements regarding the onset of her back disability. For example, in March 2011 she complained of low back pain for a couple of years since falling out of a truck during service, with increasing pain the last six months. In June 2014, she complained of back pain with date of onset two years earlier. The Board acknowledges that post-service medical records document the reported history of ongoing back pain since the 2002 injuries. See, e.g., March 2011, June 2011 private treatment records. However, restating the reported history is not an independent assessment of a medical nexus. The notations in the Veteran’s medical records, which indicated that the Veteran had experienced back pain since service, were documentation of the Veteran’s own reported history and were not the opinion of a medical provider. It also appears that there may be an intercurrent injury due to her post-service occupation working as a pharmacy technician. In August 2011, it was noted that she is on her feet all day answering the phone and taking orders. She answers the phone with her right hand, then shoulders the phone and takes notes with her right hand. At that time she complained of neck pain and bilateral lower lumbar tenderness. She denied any recent trauma. She was diagnosed with a muscular strain from how she uses the phone at work and lower lumbar pain exacerbation from her neck and feet from how she walks. See August 2011 VA treatment records. The Board acknowledges the statements of the Veteran that her current low back disability is related to her military service. However, even assuming the lay assertions regarding etiology are competent, the Board nevertheless finds the November 2017 and March 2019 VA examiner’s opinion is more probative, as it is based on a thorough review of the record, as well as the examiner’s own medical knowledge, training, and expertise. The examiner also provided adequate rationale in support of his opinion. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a chronic back disability. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a chronic back disability is not warranted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.