Citation Nr: 21004092 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-46 309 DATE: January 26, 2021 ORDER Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for an upper back disability is denied. FINDINGS OF FACT 1. The Veteran’s lower back disability is not directly related to service, or secondary to service-connected right shoulder condition. 2. The Veteran’s upper back disability is not directly related to service, or secondary to service-connected right shoulder condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 4.14. 2. The criteria for entitlement to service connection for an upper back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to February 1995, and on active duty for training (ACDUTRA) in the U.S. Army Reserves in February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal 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. See Timberlake, supra. Service Connection Generally, to establish service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The law allows service connection for certain chronic diseases enumerated in 38 C.F.R. § 3.309(a) on a presumptive basis, so long as certain regulatory criteria are satisfied. When applicable, the presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [38 C.F.R. § 3.303(b)] is to relax the requirements of [38 C.F.R. § 3.303(a)] for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in 38 C.F.R. § 3.309(a)). Specifically, 38 C.F.R. § 3.303(b) provides that when a chronic disease is shown as such in service (or within a presumptive period under 38 C.F.R. § 3.307), then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). 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 distinguished from merely isolated findings or a diagnosis including the word “Chronic.” If the evidence is not sufficient to show that a disease noted in service was chronic at that time, then the claim may be established with evidence of continuity of symptoms after service discharge, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. See Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Walker, 708 F.3d at 1336. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a lower back disability The Veteran seeks entitlement to service connection for a lower back disability that she contends was suffered during an annual training and continues through the present day. Specifically, she contends that she fell and injured her back, shoulder, and neck at the same time during an annual training at Ft. Polk, LA in February 2004. See April 2017 NOD. The record contains a diagnosis of lumbar degenerative arthritis. See January 2020 VA examination. Thus, the first element of service connection has been satisfied. Second, with regard to the in-service element, it is not disputed whether the Veteran experienced a fall during her ACDUTRA period in February 2004. The question remains as to what body parts were injured and to what degree. Insofar as a fall occurred, the second element of service connection has been satisfied. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed back condition and her military service, or whether her back condition may be secondary to her service-connected shoulder disability. Pursuant to the September 2018 Board Remand, a clarifying medical opinion was obtained because the previous medical opinion may not have considered the lay reports of observable symptomatology from the Veteran and her supervisor. The January 2020 examiner specifically noted that the lay statements were considered in forming its medical opinion. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale is that the first time the Veteran received treatment for back pain was in May 2012, which was many years after the claimed injury. It was mentioned that there is no evidence of continuity of treatment for the condition claimed for at least 5 years after being released from service. The examiner explained that the Veteran’s back condition is a long-standing process, that gets progressively worse over time. The examiner opined that the condition is “more likely than not caused by age, obesity and occupational history, all of which predispose to developed lumbar spine degenerative osteoarthritis. There is significant evidence on medical literature that support the fact that actual lumbar condition is considered part of normal aging process in patients older than 40 years old.” The record supports the examiner’s opinion, and refutes the Veteran’s claim that she has been continuously treated for back problems since 2004. The Veteran stated, “I did not have the opportunity to talk about my lumbar spine nor cervical condition.” May 2018 Statement in Support. However, the Veteran had access to the San Juan VA medical center. A December 2010 VA emergency treatment note lists a past medical history of asthma and right shoulder pain. There is no mention of upper or lower back pain. The July 2011 VA treatment note states the Veteran “reported a fall during basic training which caused a trauma to right shoulder.” This date in July 2011 was noted as her first visit to primary care. This evidence clearly indicates that the Veteran was not suffering with, or was treated for back pain from her time in service through at least 2011. The absence of post-service complaints or diagnosis is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The record shows the Veteran presented with lower back pain of several days in January 2012. There is no listed cause, or followup treatment notes. However, in May 2012, the Veteran presented with a pain level of 10 after falling from her stairs. The Veteran subsequently was seen in the emergency department, and was followed by radiologists and orthopedists. The January 2020 examiner’s opinion that this fall, in 2012, was the precipitating factor, in addition to the natural aging process is afforded great weight because it is based upon a thorough review of the claims file, medical literature, and a well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has also considered whether service connection can be granted on a secondary basis. Secondary service connection Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). As noted above, the first element of service connection, a current disability is met. Next, the Veteran is service connected for right shoulder bursitis. The second element of service connection on a secondary basis is also met. However, the third element, a medical nexus, must be resolved. As directed by the September 2018 Board remand, the VA examiner was asked to opine whether it is at least as likely as not (50 percent or greater probability), that the Veteran’s low back disability was caused, or aggravated beyond its natural progression by the service-connected right shoulder disability. The examiner opined that the claimed condition is less likely than not caused or aggravated by the service-connected right shoulder. The rationale was that lumbar and shoulder conditions are not related pathophysiologically or anatomically to each other. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for a lower back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for an upper back disability The theory of entitlement to service connection for an upper back disability is identical to the theory of entitlement to service connection for a lower back disability. The Veteran contends that she fell and injured her back, shoulder, and neck at the same time during an annual training at Ft. Polk, LA in February 2004. See April 2017 NOD. The presence of post-service complaints or diagnosis of an upper back disability is even more scant than lower back complaints. For example, August 2015 lists a complaint of low back pain with no mention of the upper back. January 2012 lists lower back pain of several days. However, the June 2018 medical record notes acute exacerbation of low and upper back pain after receiving an MRI. The conclusion of the January 2020 examiner is the same, that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, as the claimed injuries allegedly stemmed from the same fall in February 2004. Given the lack of a nexus between the disorder on appeal and the Veteran’s active duty service, the Board concludes that service connection for her upper back disorder is not warranted. (Continued on the next page)   Likewise, secondary service connection cannot be granted. The examiner opined that the claimed condition is less likely than not caused or aggravated by the service-connected right shoulder. The rationale was that lumbar and shoulder conditions are not related pathophysiologically or anatomically to each other. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for an upper back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.