Citation Nr: 21005212 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 10-37 758 DATE: January 29, 2021 ORDER Entitlement to service connection for a low back condition is denied. FINDINGS OF FACT 1. The Veteran's current back condition did not manifest in service or within a year following separation from active duty, and the preponderance of the evidence is against finding that the claimed lower back condition is related to an event or injury in service. 2. The Veteran’s lower back condition did not clearly and unmistakably preexist active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to July 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2013. The Board issued a decision denying this claim in November 2017. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). The Veteran and the Secretary of Veterans Affairs (collectively, the Parties) filed a Joint Motion for Remand (Joint Motion) with the Court in November 2018. In that Joint Motion, they asked the Court to remand the appeal back to the Board for a new VA medical opinion that provides an opinion and supporting rationale as to whether the Veteran’s currently claimed back conditions clearly and unmistakably preexisted service. In addition, the Joint Motion also pointed out that a remand was required because the Board erred by not addressing the Veteran’s wife’s statement from April 2011. In November 2018, the Court issued an Order granting the Parties' Joint Motion and remanded the claim to the Board for action consistent with the Joint Motion. This case was remanded by the Board in June 2019 for a VA medical opinion that complied with the Joint Remand. The June 2019 remand requested that the examiner to opine as to whether any diagnosed low back condition clearly and unmistakably preexisted service, and clearly and unmistakably did not worsen beyond natural progression during service. The June 2019 remand also included directives for the examiner to render an opinion as to whether the low back condition is at least as likely as not etiologically related to service. In addition, the June 2019 remand instructed the examiner to comment on the April 2011 letter from the Veteran’s wife. The VA medical opinion was issued in December 2019. In November 2020 the Board remanded the case again because the Board’s review of the claims file did not show any objective medical evidence supporting the factual assertion that the ankylosing spondylitis the Veteran is currently diagnosed with was present at the time of his entrance to service. The subsequent VA examination took place in November 2020. The RO denied the claim and issued a Supplemental Statement of the Case (SSOC) in November 2020 and the case is now before the Board. The Board will first address the question of soundness at entry into service. Every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Once the presumption of soundness applies, the burden of proof shifts to and remains with the VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). Both prongs must be proven in order to rebut the presumption. The presumption of soundness relates to the second requirement the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a veteran must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. In other words, if a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. In this case, a lower back condition was not "noted" upon service entrance. Thus, the presumption of soundness applies. If the government rebuts the presumption of soundness, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. The Veteran has been afforded multiple examinations for his lower back condition. In the December 2019 opinion, the VA examiner concurred with the August 2017 examiner that the Veteran had a preexisting low back condition that clearly and unmistakably was not worsened beyond natural progression during service. In support thereof, the December 2019 examiner stated that the Veteran’s ankylosing spondylitis was diagnosed prior to service. In the November 2020 remand, the Board’s review of the claims file did not find any objective medical evidence supporting the factual assertion that the ankylosing spondylitis the Veteran was currently diagnosed with was present at the time of his entrance to service; therefore, the Board found that the December 2019 examiner’s opinion lacked any probative value based as it is on this inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The Veteran was afforded another VA opinion in November 2020. The examiner opined that the Veteran was 20 years old at the preinduction examination and did not mention any back issues. The examiner went on to state that the Veteran’s separation exam in May 1967, at age 20, noted no further details about the Veteran’s back except that it was "asymptomatic in service." The examiner opined that the one statement regarding the Veteran’s back being “asymptomatic in service” did not constitute "clearly and unmistakably." The Board finds that the November 2020 opinion is the most probative examination regarding the Veteran’s lower back condition for determining the presumption of soundness. The Board also finds that the Veteran did not have a lower back condition that clearly and unmistakably preexisted service. Thus, the Veteran is to be considered sound at the entry to active service, and his claim is one of direct service connection. To that end, the Veteran contends he is entitled to service connection for a lower back condition due to carrying heavy packs while on active duty. 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 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 (Fed. Cir. 2007). The record shows that the Veteran has diagnosed lower back conditions. Thus, the question before the Board is whether the Veteran’s has a lower back condition that is a result of a causal relationship between the current disability and the in-service disease or injury. The Veteran’s service treatment records are silent for any diagnosis or treatment for a lower back condition. As mentioned above, the Veteran reported a back strain in his May 1967 separation examination that was asymptomatic in service. He submitted private treatment records from 1972 where he underwent imaging that revealed intervertebral space narrowing and encroachment upon space of the intervertebral foramina with nerve roots with osteoarthritic changes. In private treatment records from January 2004, the Veteran presented with a two-week history of right-side low back pain. The Veteran reported he did a lot of lifting while at work as a florist. The Veteran also reported that the pain began after putting some heavy boxes in his attic. The private physician noted that the Veteran reported intermittent mild low back pain since age 25, and he was told in the past that he had osteoarthritis and ankylosing spondylitis. Later in January 2004, the private physician reviewed the Veteran’s MRI and diagnosed the Veteran with herniated nucleus pulposus at L4-L5, with degenerative disc disease and lumbar radiculopathy. The Veteran subsequently underwent transforaminal epidural steroid injections at L4 and L5 on the right side. The Veteran filed his Notice of Disagreement (NOD) in December 2009. The NOD also contained a statement made by the Veteran. The Veteran stated that he had been seeing a private physician, Dr. H.S., since 1968. The Veteran stated that Dr. H.S. first diagnosed him with osteoarthritis and that the records from Dr. H.S. should be obtained. The Veteran went on to state that he did have back problems before service and that carrying a 40-pound pack on the back of a 130-pound soldier during long marches and physical training can compound the problem The RO attempted to obtain the records from 1968 that the Veteran mentioned in his NOD. In January 2011, the RO sent a letter and a VA Form 21-4142 Authorization and Consent to Release Information to the Department of Veterans Affairs. In March 2011, the RO sent another letter and VA Form 21-4142 to obtain the Veteran’s records from 1968. The RO also sent a letter to the Veteran in March 2011 informing him that they had sent two letters to Dr. H.S. for records and that they have not received a response. The March 2011 letter also encouraged the Veteran to send the information requested. In April 2011, the VA received a lay statement from M.P., the Veteran’s wife. M.P. stated that she met the Veteran in 1968 and that that time he walked with a limp due to back pain. M.P. stated that the Veteran told her that he started having back pain when he was in the Army and that a family doctor told the Veteran that his pain was service-related. The family doctor, according to M.P., told the Veteran that the constant pressure of a backpack combined with basic training and physical exercise caused the pain. Additionally, M.P. stated that over the years, the Veteran’s back condition greatly depreciated to the point that the Veteran often had to use a cane while walking. The Veteran and his wife testified at a hearing in August 2013. The Veteran testified that he had pains in his back at 20 years old. The Veteran also said that he was in pain during basic training but would never show it. The Veteran’s military occupational specialty was 13E20, fire direction control, option intelligence, and forward observer. He would routinely be in the field doing repetitive tasks. The Veteran testified that he took aspirin on active duty. His wife testified that she met the Veteran in 1968 and that he had been complaining of back pain ever since. The Veteran said that his wife forced him to go to the doctor for his back. The Veteran stated that he had not had surgery on his back, but has had an epidural. The Veteran stated that the physical training with a heavy pack while also carrying a rifle made his back worse. In a July 2014 Board remand, one of the directives was to obtain the Veteran’s medical records from Dr. H.S. that started in or about 1968 and records from Dr. W.S. starting in or around 1980. In August 2014, the RO sent a letter to the Veteran with a request to complete and return a VA Form 21-4142, Authorization and Consent to Release Information for both Dr. H.S. and Dr. W.S. The Veteran responded in August 2014 but did not provide additional evidence from or information about the two cited medical providers. The Veteran was afforded a VA examination in August 2014 and an addendum opinion to that examination in January 2017. The examiner stated the examination was normal except for a mild decrease in forward flexion. Imaging (MRI and x-ray) showed a mild disc bulge and mild osteoarthritis. The examiner stated that neither of those findings would likely cause back pain. The examiner opined that it was less likely than not that the Veteran’s lower back condition was incurred in or caused by the claimed in service injury. The examiner’s rationale was that the diagnosis of ankylosing spondylitis clearly and unmistakably existed before service. In the January 2017 addendum opinion, the examiner stated that there was absolutely no evidence that the Veteran had arthritis of the spine in service and there is no evidence that he had arthritic of the spine prior to service. The examiner also stated that arthritis of the spine by itself does not cause pain. The Veteran submitted a statement in April 2017, where he claimed that all of the physicians he talked to had said he had ankylosing spondylitis before he was drafted and that he should not have been drafted. The Veteran stated that he had been living with constant pain throughout his life. The Veteran also claimed weighing 125 pounds and having to carry a 50-pound pack and a rifle added to the problems he already had. The Veteran also claimed he listed his back and leg problems on his enlistment physical. The Veteran reported for another VA examination in August 2017. The examiner noted diagnoses for ankylosing spondylitis and degenerative arthritis of the spine. The Veteran reported that he was diagnosed with ankylosing spondylitis prior to service. The examiner also stated that the Veteran developed a herniated lumbar disc about 15 years prior after lifting something heavy. The examiner opined that the claimed condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner did not opine on direct service connection. As a result of the Joint Remand and the June 2019 Board remand, the Veteran was afforded a VA opinion in December 2019. The examiner found the Veteran's ankylosing spondylitis was diagnosed prior to service, clearly and unmistakably preexisted service, and clearly and unmistakably did not worsen beyond natural progression during service. The examiner also stated that the Veteran’s low back condition was less likely than not etiologically related to service. The examiner stated that medical literature did not support that military training and duty in the Army causes or results in chronic musculoskeletal low back pain, degenerative joint disease, degenerative disc disease, and/or ankylosing spondylitis. The examiner stated that the diagnosis of ankylosing spondylitis and L5 spine degenerative joint disease and degenerative disc disease are concurrent with the natural history of age and disease. The examiner reviewed the statement from the Veteran’s wife and stated that the letter was consistent with the literature in that unspecified lower back pain during service predicts lower back pain later in life. The rationale also explains that individuals prone to have lower back pain have symptoms during physically demanding military service and also later in life. The examiner went on to cite more medical literature when he stated that lower back pain is subjective that may or may not correlate with a military occupational specialty, structural and/or functional abnormalities, and pathologic diagnoses of the lumbar spine. The examiner also cited medical literature when he reported that that lower back pain is likely influenced by multiple factors, and a series of recent review articles suggest that no single occupational exposure is a primary predictor of lower back pain. The examiner again found that the back condition preexisted service and was not aggravated by service. The examiner opined that lower back pain and right lower extremity sciatica at age 60 were associated with his age and occupational activities at that time, per the narrative of the history of present illness and the medical evidence of record. The Board remanded the case again in November 2020 to obtain an addendum opinion. As referenced above, the Board found that the claims file did not show any objective medical evidence supporting the factual assertion that the ankylosing spondylitis was present at the time of his entrance to service. The addendum opinion was obtained in November 2020. The examiner opined that the Veteran’s lower back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that the Veteran’s diagnosed back conditions were not shown during active service and that the closest record to active duty was in 1972, five years after separation. The examiner also reviewed the statement by the Veteran’s wife and stated that, even accounting for carrying heavy packs, it is speculative to presume that the Veteran’s lower back condition started on active duty. The examiner also pointed out the 2004 private records that revealed that the Veteran reported back pain due to lifting while at work as a florist. The examiner opined that low back conditions largely come from use and wear and tear on the back over life and over time. However, he went on to report that it would be speculative without contemporaneous evidence, of which there is none except for the statement on the separation exam, to attribute it to a sole cause such as carrying heavy packs during active duty. The examiner also opined that even if the Veteran’s lower back conditions preexisted service, it was clearly and unmistakably not aggravated by his service. The examiner’s opinion here is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The statements submitted by the Veteran and his wife (April 2011) explain how they believe the Veteran’s lower back condition is related to an in-service injury or event. In addition, the Veteran’s wife stated that the Veteran told her that the Veteran’s family doctor told the Veteran that his back pain was from service. The Veteran and his wife in this case are, however, not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of diagnostic testing. Therefore, it is outside the competence of the Veteran and his wife in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, service treatment records are negative for any indications of a low back condition, and no condition was ever diagnosed in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board can "weigh the absence of contemporaneous medical evidence against the lay evidence of record."). In addition to not being competent to provide a nexus opinion, the Veteran has not submitted any evidence to support that this etiological opinion was ever actually set forth by his family doctor or any of his treating medical providers and the Board's review of the record has not revealed any such etiological statement. Consequently, the Board gives more probative weight to the December 2019 and November 2020 opinions. Taken together, the VA opinions and examinations discussed above establish that the Veteran’s lower back condition is less likely than not related to an in-service injury, event, or disease. In addition, the record is absent evidence of any diagnoses for a low back condition during service or within one year of discharge from service that would allow for service connection under continuity of symptomatology. 38 C.F.R. § 3.303(b). While the Veteran has a current diagnosis of arthritis and ankylosing spondylitis, the preponderance of the evidence weighs against finding that the Veteran’s claimed lower back condition began during service or is otherwise related to an in-service injury, event, or disease. Accordingly, the Veteran’s claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.