Citation Nr: 21005096 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-20 333 DATE: January 29, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease, is denied. FINDING OF FACT A chronic lumbar spine disability did not have its onset during active service, was not manifested by arthritis within one year of service discharge, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to February 1988. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2019 Central Office hearing and a transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in June 2019 in order to obtain an adequate VA medical opinion. Although the Veteran’s representative has asserted within a December 2020 brief that the most recent September 2020 VA opinion is inadequate, for the reasons discussed further herein, the Board finds that there has been substantial compliance with the requested development, such that the matter is ripe for adjudication. Entitlement to service connection for a lumbar spine disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. For certain chronic diseases, including arthritis, which is also known as degenerative joint disease, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The Veteran claims that his current lumbar spine disability is related to his active service. Specifically, in March 2012 and April 2016 statements, the Veteran reported that he injured his back from a fall during active service and that the injury got progressively worse over the years. At the January 2019 Central Office hearing, the Veteran testified that he had experienced episodic lower back pain since 1974, when he injured his back due to a fall down the basement stairs. He stated that he did not seek medical treatment right away but noted that within a couple of days, he sought treatment and was given muscle relaxers. He testified that he continued to experience pain and discomfort intermittently throughout the remainder of his active service, for which he mostly self-medicated. He acknowledged his post-service employment history with the U.S. Postal Service but denied any additional back injuries and felt that his back condition had its onset during active service, though his post-service job may have exacerbated his existing back symptoms. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease. The reasons follow. As to evidence of a current disability, post-service VA and private treatment records document the Veteran’s diagnoses of lumbar spine degenerative joint disease and degenerative disc disease beginning in June 1999, with related follow up and treatment thereafter. Thus, this first criterion is met. Regarding evidence of an in-service disease or injury, service treatment records show the Veteran had back pain during service. For example, in May 1974, the Veteran complained of intermittent back pain for six years; however, a physical examination of his back was normal and no back disability was assessed. In November 1974, the Veteran complained of a pulled muscle in his back from changing a tire on his truck the day before. He was assessed with a pulled muscle and discharged to light duty. In May 1975, the Veteran complained of a possible pulled muscle in his right shoulder and was assessed with a neck strain. In January 1977, the Veteran reported low back pain for two days after lifting objects. A physical examination revealed a straight spinal column with some tenderness, and the etiology was noted to be unknown. In July 1977, the Veteran complained of upper right quadrant back pain after he lifted a man the day before. Upon examination, there was no rigidity and slight tenderness noted, and the condition was assessed as a possible pulled muscle. In October 1981, the Veteran complained of pain to the medial left scapula (shoulder) for one week. In July 1983, the Veteran reported a fall during physical training which resulted in an injury to his back. Upon examination, he displayed full range of motion, with tenderness to the left rib area, and the condition was assessed as a possible kidney contusion. Upon follow up in August 1983, he was noted to have pain with trunk rotation due to the contusion seven days before. Significantly, the Veteran’s January 1988 separation Report of Medical Examination documents a normal clinical evaluation of the Veteran’s spine and other musculoskeletal systems, without a notation of a lumbar spine defect or diagnosis. The Veteran’s concurrent January 1988 Report of Medical History documents his report of a positive history of recurrent back pain, and he stated that at times it becomes difficult to breathe, lift, or assume certain positions “due to falling down a flight of stairs resulting in an injury.” The accompanying explanatory note by the examining physician documents that the Veteran reported a fall down the stairs in 1974 with recurrent low back pain. Given the above, the Board acknowledges that service treatment records document multiple reports of low back pain and/or injury, and as such, the in-service element of the Veteran’s direct service connection claim is also met. While an in-service disease or injury is shown in the service treatment records, there is no probative evidence that arthritis of the lumbar spine manifested during active service or within one year of the Veteran’s service discharge so as to warrant a grant of presumptive service connection for arthritis as a chronic disease. The first showing of degenerative changes was in 1999, which is more than 10 years following service discharge. Additionally, the Board finds that the preponderance of evidence weighs against a nexus between the current lumbar spine disability and the Veteran’s active service. Following his discharge from active service in February 1988, the Veteran first submitted a claim of entitlement to service connection for a back injury in March 1988. At that time, he claimed that he fell down some basement stairs and strained his back, with related dates of in-service treatment in May 1974, November 1974, January 1977, and August 1983. Private treatment records from March 1994 first document the Veteran’s report of recurrent back pain following service discharge during a review of systems. He reported that he injured his back in 1976 when he fell down some steps. In July 1997, the Veteran presented with recurring back pain and stated that he had been working on his patio, shoveling some sand, and working as a truck driver. He described his pain as being in the left mid-upper back area, increased with stooping or bending or getting into certain positions while sleeping. He reported that he suffered a back injury in 1975 and wondered if his current pain was “part” of that, and his condition was assessed as left upper back muscle strain. In June 1999, he presented with recurrent low back lumbar pain, “most likely secondary to degenerative changes” and was noted to have degenerative disc disease (DDD) at L5-S1 on diagnostic x-ray. In July 1999, his lumbar strain was noted to be improving. In September 2000, he again complained of low back pain since an injury in 1974 after a fall down some stairs. He stated that his symptoms act up approximately every six months and last two to three days. His condition was assessed as low back strain and right-side lumbar radiculopathy/sciatica of “questionable etiology.” It was also noted that he had been having symptoms since early September [2000]. In October 2000, the Veteran again reported that he fell down a flight of stairs in the Army and thought it may be related to his back complaints. Upon diagnostic MRI that same month, he was assessed with advanced DDD, moderate sized right paramedian protrusion, moderate canal compromise secondary to disc protrusion, and foraminal narrowing bilaterally secondary to degenerative changes. In November 2000, the Veteran reported no pain in his back or legs after a third epidural injection, and the physician noted that due to the patient being asymptomatic, no further treatment was indicated. Thereafter, in January 2003, the Veteran was again assessed with lumbar spine DDD, but it was noted that he was currently doing well after his last epidural injection. In October 2005, he again complained of recurrent back pain that began one to two weeks before and was assessed with lumbalgia, sciatica, and DDD. An October 2005 physical therapy initial evaluation documents the Veteran’s report of an onset of symptoms twenty-four weeks before for no apparent reason. He reported that he worked in motor vehicle service and did a lot of loading and unloading of mail and equipment, involving primarily pushing and twisting, and stated he also drove a tractor trailer. He denied participation in regular sports or exercise outside of work, although he reported that he played basketball with his grandson a few weeks ago, and thought that may have been a contributing factor. It was noted that he had no significant medical history except for a left-hand fracture with surgery several years ago, though he also reported episodic back pain since 1974. In June 2006, the Veteran again reported back pain that began three days before, with a history of recurrent low back pain and DDD; he stated that his low back pain was a chronic condition that occurred two to three times per year. In September 2010, he reported a history of back pain since early September, with a past medical history of back pain off and on, one to two times per year, since 1974, when he injured his back while he was with the armed forces and they could not find a reason for the back pain. Upon VA examination in July 2013, a VA examiner diagnosed DDD of the lumbar spine. The Veteran reported an onset of symptoms when he fell down the stairs at home in 1973. Following the examination, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran was seen on “one singular occasion” for a pulled muscle while he was in the service in 1974 and was given medication for this condition and was since relieved. The examiner stated that the Veteran complained of back pain again in 1999, 25 years after the initial complaint of back pain. Finally, the examiner stated that although the Veteran worked as a truck driver during active service, he also worked as a U.S. Postal Truck driver from 1988 until January 2013, which frequently required lifting of heavy objects, and the examiner believed that this work activity may have been the cause of the Veteran’s current DDD. The December 2019 Board remand found that the July 2013 VA examination/medical opinion was inadequate to adjudicate the Veteran’s claim. Significantly, the examiner inaccurately stated that the Veteran was seen on one occasion during active service for relevant low back complaints. In fact, as noted above, service treatment records document that the Veteran first reported low back pain in May 1974, when he complained of a history of intermittent low back pain for six years. Thereafter, in November 1974, the Veteran reported a pulled muscle in his back after changing a truck tire. In January 1977, the Veteran reported low back pain for two days after lifting heavy objects, with unknown etiology. Later, in July 1977, the Veteran complained of upper back pain, which was assessed as a possible pulled muscle. Upon physical examination at retirement in January 1988, the Veteran’s spine was normal; however, within a concurrent report of medical history, the Veteran reported that he experienced recurrent back pain resulting in an inability to assume certain positions due to falling down a flight of stairs and injuring his back during service. The accompanying physician’s note further documents the Veteran’s report of a 1974 fall down some stairs, with resulting recurrent low back pain. The July 2013 VA examiner did not discuss or otherwise consider the Veteran’s lay statements, which assert that he injured his back during active service and that his back pain had worsened over the years and progressed to include arthritis and degenerative joint disease. As such, the Board, within the December 2019 remand, directed that VA obtain an adequate addendum opinion that properly accounted for the relevant evidence of record, including service treatment records and the Veteran’s lay statements. Thereafter, in December 2019, a VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that during service, the Veteran’s condition was acute only, and that there was no evidence of chronicity of care, and, as such, a nexus had not been established. The examiner reviewed the Veteran’s service treatment records and stated that the record did not show chronicity of back care while on active duty; therefore, it was less likely that the Veteran’s low back strain, DDD, stiffness, etc., were caused by, secondary to, or related to any incident in service. Rather, the examiner stated that the Veteran’s back conditions are common in the general public, and mostly develop over many years. VA obtained an addendum medical opinion in September 2020, after the Regional Office (RO) noted that it was unclear whether the December 2019 VA examiner had considered all relevant service treatment records and did not discuss the Veteran’s lay reports of back pain during the January 2019 Board hearing. Following a thorough review of all of the evidence in the claims file, including eight hours of research, the September 2020 VA examiner opined that it is less likely as not that the Veteran’s current lumbar spine disability had its onset during the Veteran’s active service or was otherwise related to active service. As a rationale to support the negative nexus opinion, the VA examiner conducted a review of each of the Veteran’s various in-service complaints. Regarding the Veteran’s May 1974 report of subjective back pain for six years off and on, the VA examiner noted that the evaluating physician of record documented an objectively normal clinical examination of the Veteran’s back and released the Veteran back to duty without restrictions; thus, the examiner stated that the May 1974 in-service examination does not support that the Veteran incurred a chronic and disabling back condition as a result of the claimed “back pain x 6 years off and on,” as supported by the evidence of record and the weight of medical literature. Regarding the November 1974 complaint of a pulled muscle in the back after changing a truck tire, the VA examiner stated that this represents an injury to a muscle of the back and does not represent an injury to the spine bones and discs of the back, and an acute and transitory condition that resolved without residuals and does not represent a chronic and disabling condition, as supported by the evidence of record and the weight of medical literature. Regarding the January 1977 complaints of low back pain for two days from lifting objects, the examiner stated that this represents an acute and transitory condition that resolved without residuals and does not represent a chronic and disabling condition, as supported by the evidence of record and the weight of medical literature. Finally, regarding the July 1977 complaint of right upper quadrant back pain, the examiner stated that this was inconsistent with the Veteran’s current claims of a low back condition and it represents an injury to a muscle of the back rather than an injury to the spine bones and discs of the back, to include the Veteran’s claimed lower spine condition; thus, it represents an acute and transitory condition that resolved without residuals and did not represent a chronic and disabling condition of the back, to include the Veteran’s claimed lower spine condition, as supported by the evidence of record and the weight of medical literature. Thus, the VA examiner stated that the Veteran’s subjective reports are inconsistent with a thoracolumbar spine condition with an onset during service. The examiner concluded that the Veteran’s various reported in-service back conditions represented acute and transitory conditions that resolved without residuals and do not represent chronic and disabling conditions, as supported by the evidence of record. The examiner added that the weight of medical literature, including service treatment records which are silent for the objective clinical diagnoses of a chronic and disabling thoracolumbar spine condition during active duty. Notably, the examiner pointed out that the January 1988 Retirement Report of Medical Examination resulted in an objectively normal clinical evaluation of the Veteran’s spine and other musculoskeletal systems and rendered no diagnosis of any thoracolumbar spine conditions. The examiner also acknowledged that the Veteran reported recurrent back pain in the January 1988 Retirement Report of Medical History, due to falling down a flight of stairs resulting in an injury, with a notation by the examiner of record regarding the Veteran’s reported history of “Fall down stairs 1974 – with recurrent low back pain.” However, the VA examiner stated that the available evidence of record does not support that the Veteran incurred a chronic and disabling back condition as a result of the Veteran’s claimed fall down the stairs in 1974, which finding was supported by the evidence of record and weight of medical literature. Given a review of the evidence discussed above, the Board that the preponderance of evidence weighs against a finding of a nexus between the Veteran’s current lumbar spine disability and his active service. Significantly, the Board affords the most probative value to the September 2020 VA examiner’s negative nexus opinion, as the examiner performed a careful review of the Veteran’s in-service complaints and lay history, and concluded that the Veteran’s in-service complaints represented acute conditions that resolved. The examiner also provided a detailed rationale for the conclusion reached, and performed research to assist with reaching the conclusion. The Veteran has not provided competent and probative evidence to weigh against the negative VA opinions of record. While the Veteran is competent as a layperson to report observable symptoms that he experienced in service and since service, he is not competent to directly link the current lumbar spine disability to active service, which requires medical and orthopedic expertise. In this regard, the question of causation in this case involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion regarding a nexus is nonprobative evidence. To the extent that the October 2020 representative’s brief asserts that the September 2020 VA opinion is inadequate because the VA examiner repeatedly noted that he had “thoroughly reviewed all the evidence in the Veteran’s electronic claims file” and focused “on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim” and stated that “[o]ne must not assume that the [examiner] overlooked pieces of evidence that are not explicitly cited in the pertinent record review section,” the Board finds that this repeated information does not render the opinion inadequate. Rather, the examiner proceeded to carefully review the Veteran’s service treatment records and provide a well-reasoned opinion with supporting rationale, and, as such, the Board has afforded the opinion due probative value. The representative further asserted that the Veteran’s various in-service complaints regarding the thoracolumbar spine, lumbar spine, and cervical spine are all connected to each other, based upon a reference to medical literature that states that continued injury to the spine increases the likelihood of developing post-traumatic arthritis and other conditions, the Board finds that the medical literature cited within the representative’s brief is of little probative value, as it is of a general nature and unrelated to the specific facts of the Veteran’s case. Moreover, the representative, as a layperson, also lacks the required expertise to opine regarding a nexus between a complex and internal orthopedic condition such as lumbar spine degenerative arthritis and degenerative disc disease. Finally, to the extent that the representative appears to rely on the precedential opinion of the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (wherein the Court held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity) to support the assertion that the Veteran’s reports of subjective back pain prior to his diagnosis of lumbar spine DDD or arthritis constitutes a disability, the Board notes that it has already conceded a current disability in connection with the Veteran’s claim. As discussed above, post-service private treatment records document a diagnosis of lumbar spine degenerative joint disease and DDD beginning in June 1999. Additionally, the Federal Circuit took care in Saunders to distinguish that a current disability cannot be shown by subjective pain alone, but there must be some functional impairment of earning capacity. Here, the probative evidence of record documents that following his release from active service, the Veteran worked as a U.S. Postal Truck driver from 1988 until January 2013. Therefore, the Board finds that he has not presented probative evidence to show that his subjective back pain resulted in functional impairment of earning capacity prior to his diagnosis of lumbar spine DDD in June 1999. The onset of his conceded current disability in June 1999, over 10 years following his release from active service, is also a factor which weighs against a finding of a nexus to active service based upon continuous and ongoing symptoms of back pain. In conclusion, for all the reasons discussed above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a lumbar spine disability. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.