Citation Nr: 21003543 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-16 753 DATE: January 21, 2021 THE ISSUE Entitlement to service connection for a back disability. ORDER Entitlement to service connection for a back disability is denied. FINDINGS OF FACT The Veteran's current back disability did not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1978 to October 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2015, the Veteran testified before a Decision Review Officer in a hearing located at the RO in Houston, Texas. A copy of the transcript has been associated with the claims file Additionally, in January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Videoconference Board hearing with the RO in Houston, Texas. A copy of that transcript has also been associated with the claims file. This matter was last before the Board in May 2019 and July 2020, at which time it remanded for further development. For the reasons detailed below, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back disability is denied. 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2020). This case turns on whether there is a causal relationship or "nexus" between the Veteran's current disability and his active duty military service. The Veteran asserts that he experienced back pain after lifting objects while on active duty service. The Veteran states that he has current back pain as a result of heavy lifting during service. See January 2019 Hearing Transcript. The Veteran also stated he reinjured his back in a motor vehicle accident and underwent surgery. The Board finds that the Veteran has a current diagnosis of degenerative arthritis of the spine and lumbosacral strain. See October 2018 VA examination. Additionally, the Veteran has credibly testified to the effect that he suffered a back injury in service while lifting weight. Therefore, the Board finds that the first two elements of Shedden, a current disability and an in-service injury, are met. The Veteran was afforded a VA examination in October 2018. The VA examiner diagnosed the Veteran with degenerative arthritis of the spine and lumbosacral strain. However, the examiner opined that the Veteran’s back disability was “less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner supported his opinion by stating “during service [the] condition was acute only.” The examiner further stated that there was “no evidence of chronicity of care,” and that therefore a “nexus has not been established.” In a May 2019 decision, Board remanded the matter and requested an addendum opinion regarding the etiology of the Veteran’s back disability that specifically addressed the Veteran’s assertions of lifting heavy objects during service and assertions of continuing symptoms of back pain since service. The Veteran was afforded a VA addendum opinion in May 2020. The VA examiner opined that it was less likely than not that “the Veteran’s thoracolumbar conditions [were] due to or incurred in the strenuous labor while in service.” In support of his opinion, the examiner offered the following rationale: “There is no evidence of a back condition while in service. Separation is negative for back complaints. Any condition arising due to duties while in service would almost certainly manifest during service or proximate to the events occurring in service, including strenuous labor. The Social Security documents confirm back complaints, including a T8 fracture with surgical rod placement in 2006 due to a [motor vehicle accident]. This is the more likely cause of the veteran’s back conditions, to include L/S strain, DJD and DDD. This is almost certainly the cause of the T8 fracture. Simple labor would not cause a fracture in an otherwise healthy individual.” In the July 2020 Board remand, the Board found that the examiner did not explicitly acknowledge or address the Veteran’s reports of continuing pain since service as required by the May 2019 Board remand directives. Therefore, the Board remanded the issue in order to obtain an additional addendum opinion which considered the Veteran’s reported continuing pain since service. See Stegall, 11 Vet. App. 268 (1998). The Veteran was afforded such an addendum opinion in September 2020. The September 2020 VA examiner opined that the Veteran’s current back disability was less likely than not incurred in or caused by service. The examiner explained that the Separation examination was negative for back conditions, and that there was no evidence in the medical record of a back disability until 2006, many years after separation. The examiner went on to note that the Veteran’s current degenerative joint disease would not arise thirty years after separation from service and cited aging as the most likely cause of the disability. VA sought clarification of the September 2020 VA opinion, as the examiner failed to discuss and explain the Veteran’s claims of continued symptoms since service, as required by the July 2020 Board remand directives. In October 2020, the examiner amended his opinion with the following: “I feel the above response addressed the veteran’s reported symptoms, as opposed to the medical evidence, which did not support the veteran’s claim. The veteran had an event in 2006, making this the most likely cause of the veteran’s complaints. Therefore, despite the veteran’s claims to the contrary, medical evidence does not support the claimed chronic pain since service. Medical evidence clearly shows onset of pain occurring in 2006, with no evidence of continuous pain since service, other than the veteran’s claims. I particularly addressed the absence of symptoms at separation and the reasons why that is significant. There is a span of 24 years from service until a documented event, which is the most likely cause of the veteran’s currently diagnosed conditions. There was absolutely no medical evidence to suggest vertebral fracture or degenerative spine disease while in service, or proximate to service.” The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). More specifically, the Veteran is competent to report back pain. He is competent to report experiencing this lifting weight in service. The Veteran is competent to relate what he has been told by a professional. He is competent to report when he began receiving treatment for his back, and when his back disability was first identified by physicians. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's own lay opinions as to the diagnosis and cause of a back disability are not probative evidence, although the Veteran's observed symptoms described may be useful to an expert in evaluating whether the Veteran has a disability and in determining the etiology thereof. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran has medical expertise, the Veteran's lay opinion beyond a description of his symptoms is of limited probative value. The most probative evidence is the contemporaneous treatment records, including the STRs, and the opinion of the September 2020 and October 2020 VA examiner. First, the separation examination is clinically normal for the back. Nearly 24 years later, in 2006, the Veteran presented with complaints of back pain after a motor vehicle accident. Thus, the first documentation of the Veteran having a back condition was nearly a quarter of a century after separation from service. By way of the Veteran's lay history, in 2006, the Veteran was involved in a motor vehicle accident. He underwent treatment for his back injuries associated with this accident. The Board assigns significant probative weight to the contemporaneous treatment records. Second, the Board also assigns significant probative weight to the detailed opinion of the September 2020 VA examiner. The physician reviewed the entire claims file, and provide detailed reasons and bases. The physician opined, after consideration of the Veteran’s contentions that he suffered back pain since service, that the back disability was less likely than not related to his reported back injury in service. In a detailed rational for this opinion, the examiner explained that the Veteran’s separation examination was silent for back complaints and the medical record did not show complaints related to the back until a 2006 motor vehicle accident, which the examiner found was the likely cause of the Veteran’s current back disability. While the examiner indicated that he was using the “reasonable practitioner” standard, the Board will apply the benefit of the doubt to the Veteran’s contentions. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. We note that if the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board assigns significant probative weight to the findings of the March 2018 VA examiner. Here, regarding direct or presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service. A back disability was not manifest in service and is not attributable to service. There is no probative evidence to the contrary. In addition, the Board finds that while competent to report what he has been told by his physician and to report back pain, the Veteran's own lay opinion regarding identifying a potential chronic disease entity, such as arthritis, pales in probative weight when compared to the objective medical evidence of record. As noted by the examiner the exit examination disclosed a clinically normal examination of the back. Furthermore, we note that a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent that the Veteran has tried to argue that he suffered continuing symptomatology of back pain since service, the Board finds this to be inconsistent with the medical record and not credible. Consequently, the Board affords such contentions limited probative value. In short, the most probative evidence is the clinically normal STRs upon discharge and September 2020 and October 2020 VA examination with medical opinions. The most probative evidence establishes a remote onset of back pathology several years after discharge. Consequently, service connection for a back disability is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.