Citation Nr: 21061547 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-22 151 DATE: October 4, 2021 ORDER Entitlement to service connection for residuals of a back injury is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's back disability had its onset during service or is otherwise related to it. CONCLUSION OF LAW The criteria to establish service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1978 to December 1981, with subsequent service in the Army Reserves. This appeal stems from a February 2009 rating decision. In November 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In April 2018, the Board remanded the appeal for further development, to include providing the Veteran with a new VA examination. In May 2020, the Board again remanded the appeal for an additional time to ensure compliance with its April 2018 remand directives. In November 2020, the Board again remanded the claim to ensure compliance with its May 2020 remand directives, and in April 2021, the Board remanded the case again to ensure compliance with its November 2020 remand directives. The case has since returned to the Board for further appellate review. Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis According to service treatment notes dated in February 1979, he reported intermittent lumbar pain since he was 15 years old due to a motor vehicle accident. in March 1979, it was noted that the Veteran had persistent low back pain, normal range of motion, no spasm, increased pain on limitation, and a negative neurological examination. X-rays of the lumbar spine showed ununited ossification of the inferior facet. In April 1979, the medical professional noted that the Veteran fell off the top bunk in March 1979 and noted that this was a recent trauma to a recurrent resolved low back pain. During a 1983 Reserves induction examination, the Veteran denied recurrent back pain and noted that he was in good health. According to February 2004 VA treatment records, the Veteran complained of low back pain and left leg pain for six days. He indicated that he was helping someone move a week earlier and although he had sustained no injury, the next day he began experiencing low back pain and tingling, pain, and pressure in his left leg. The medical professional noted that the Veteran had a history of L1-L2 injury years ago. The diagnosis of acute back strain with subluxed disc. In October 2007, the Veteran filed claims for skin disorder, loss of vision, lung condition, and ear conditions. He did not mention a back disability or any residuals thereof. According to February 2008 VA treatment records, the Veteran indicated that he was stabbed in the left thoracic back in 1985. The treatment at the time was not for a back problem and the Veteran did not complain of any back problems. In May 2008, the Veteran denied having back pain. Past medical history noted a back surgery in 1992, which was described as L1-L2 fusion; stab wound repair with exploratory surgery. In July 2008, the Veteran requested to add a back injury to his pending service connection claims. Later that month, the Veteran received treatment for urinary urgency, at which time he reported having left lower back pain. The medical professional noted some tenderness at the left sacral paraspinous muscle. No back diagnosis of treatment was noted. In September 2008, the Veteran underwent a VA back examination, at which time the Veteran reported that he worked as a long-haul truck driver after discharge from service. He added that he injured his back at age 15 in a motor vehicle accident but that he was "ok" after a few days. He noted that his back did not bother him after that point until service when he suffered injuries in recruit training and in advanced infantry training. He indicated that he was thrown out of his upper bunk bed in the barracks during boot camp and landed on a footlocker, injuring his back. The Veteran further described injuring his back in 1988 using a jackhammer but that this was his upper back and shoulders. In 1992, while working as a long-haul truck driver, he was unloading a truck of sides of beef when the rail holding the hanging beef broke and he was buried under several hundred pounds of beef. He suffered a hyperextension injury (his back was hyperextended over equipment in the van with the beef on top of him. After this injury, he was diagnosed with ruptured disc. As a result of a back fusion, he developed a nerve damage in the left lower extremity. No treatment helped, to include medication, physical therapy, chiropractor treatment, and acupuncture. X-rays of the back showed generalized osteopenia. There were no hardware complications as a result of the previous surgery. There were degenerative changes with mild sclerosis. The examiner rendered diagnoses of status post L3-L4 laminectomy with retained hardware, lumbar osteopenia, degenerative disc disease of the lumbar spine, and degenerative joint disease of the bilateral SI joints. The examiner noted that the issue could not be resolved since the Veteran had injuries to his back in 1975, 1979, 1988, and 1992, and it would be mere speculation to determine which one of these injuries caused the current back condition. In an April 2010 statement in support of claim, the Veteran indicated that in two different occasions he was pushed off his bunk bed and fell on a footlocker. He indicated that after the first incident x-rays showed a hairline fracture. After the second incident, he was sent back to duty after being told he was okay. He concluded that he continued to have severe back pain. During a September 2012 DRO hearing, the Veteran testified that he was pushed off his bunk causing him to land on a footlocker. He indicated that x-rays showed a hairline fracture. He added that since that time he complained of back pain on and off. He again described the post-service 1992 injury. In a November 2017 statement, the Veteran's brother indicated that he could not remember the exact years, but sometimes between 1980 and 1984, the Veteran worked for the same company, at which time he described an injury he sustained during service. The brother noted that the Veteran complained of back pain at the time. During the November 2017 Board hearing, the Veteran testified that his pre-service injury as a result of a MVA was not serious and despite the military being aware of the previous injury, he was allowed into service. He described the 1979 injury and noted that after receiving treatment he went back to duty. He added that he was able to remain in the Reserves for seven years without significant problems but that he would barely pass physicals after end of the month training. He testified that he continued to have back pain, and in 1988, he could no longer take it. He stated that this was during hard work using a jackhammer and after hurting his back again during that time. In October 2019, the Veteran underwent a VA back examination, at which time the examiner rendered a diagnosis of degenerative arthritis of the spine since 2008, status post laminectomy since 1992, and right lumbar radiculopathy since 2017. During the examination, the Veteran reported that the date of onset of the disability was in 1978 when he was pulled from his bunk by a drill sergeant and was told that he had a hairline fracture. He added that he got out of service and during his job as a truck driver, in 1992, he was crushed by a rack and could not move. As a result, he was told he had a ruptured disc. The examiner opined that the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner reasoned that per the available treatment records, there was no objective evidence to support the Veteran's reported history of a hairline fracture related to an injury during active duty from 1978 to 1981. The examiner added that there was history of a back injury subsequent to service as reported by the Veteran today and such a nexus could not be established. In a May 2020 addendum opinion, a VA examiner opined that there was no evidence of any pre-existing back injury. The examiner noted that the in-service incidents were diagnosed as muscular strain and the Veteran returned to duty immediately after. The x-rays during service only showed developmental minor changes and no hairline fracture as reported by the Veteran. A 1983 Reserve entrance examination noted only a minor back problem that occurred as a result of a civilian incident 30 days prior, which was resolving. The examiner added, "I do not find compelling evidence that any pre-existing back [was] active at the time of enlistment," and as such, no aggravation occurred during service. The examiner concluded that it was less likely than not that the current back disability was related to the incidents in service but rather to post-service injuries, use, weight gain, and surgery that caused the traumatic arthritis. In a November 2020 letter from a private physician, it was note that the Veteran had low back pain and the x-ray evidence could be associated with osteoarthritis, previous lumbar spine surgery, or by trauma. In an additional December 2020 addendum, an examiner opined that the Veteran did not have a preexisting injury and that the current back disability was less likely than not related to service since there was no evidence of chronicity. In May 2021, the Veteran underwent an additional back compensation examination, at which time the examiner rendered diagnoses of degenerative arthritis, degenerative disc disease other than IVDS, lumbar strain, spondylolisthesis, ununited ossification center of inferior facet, herniated disc status-post laminectomy and posterior fusion, and right lumbar radiculopathy. The Veteran again reported the in-service incident and that he was told he had a hairline fracture but denied having any treatment other than x-rays. He had other accidents subsequent to service leading to 1992 surgery. After a review of the record and examination of the Veteran, the examiner opined that the current back disabilities were less likely than not as a result of the fall injury or carrying heavy equipment in service. The examiner explained that congenital defects, by definition, exist at birth and whether or not they become symptomatic or contribute to symptoms in the future is dependent on each individual circumstance. This Veteran's congenital defect or ununited ossification center of inferior facet was discovered on x-rays during service as an incidental asymptomatic finding. The examiner added that although the treatment notes did not completely describe this finding, the available documentation appeared to describe an Oppenheimer nodule, and this was evident by subsequent x-rays (after 1979) that did not show this finding. This was not to say that it resolved but rather that it was not described or diagnosed during later years. The examiner further noted that this, perhaps, represented the "old raptured disc" the Veteran referred to when discussing the 1992 surgeon comments. He further stated that there was no evidence that the falls or carrying heavy equipment regularly caused this radiographic finding during service because reading the treatment note suggested that the finding was incidental and was not used in the assessment of a diagnosis. The examiner concluded that based on literature and a review of the notes, that diagnosis was not the kind that developed in the first three months of active duty or prior to active duty as a result of the MVA, but rather, it was a congenital defect or variation. The examiner explained that the congenital back defect was not aggravated or subjected to a superimposed injury as a result of service because it was asymptomatic during service and was only an incidental finding unrelated to the in-service injury. The examiner further opined that there was no evidence in the record to support that the Veteran had any change to his back pain. The original back injury was in 1975 and was described as causing intermittent pain since then. The in-service records then showed back pain within the first three months of service with one note mentioning a fall as well as pain since he was 15 years old. However, no new symptoms or increase in severity of the previous pain were noted. The examiner further opined that the Veteran's non-congenital defect was less likely than not related to service. The examiner explained that the records identified a MVA injury in 1975 and although the Veteran reported that he had no problems at induction, the record specifically showed that he reported intermittent pain since the accident. In service, the Veteran's treatment record showed that he had pain in 1979, this date would support the time he was in basic training, which was all very non-concerning with no ominous signs, suggestion of radiculopathy, or need for further care. There were no additional treatment records showing continued care for a back problem, continued pain, or limitation throughout active duty until 1981. The next noted complaint of back pain was in 1983, which was specifically associated with a civilian injury 30 days prior and did not show any in-service injury (active or reserve). The Veteran's treatment records showed that he again injured his back in 2004 with first mentioning of the 1992 surgery and left lumbar radiculopathy. All other references of the 1988 and/or 1992 injuries were retrospective in character. In 2009, the Veteran first mentioned right lumbar radiculopathy. The examiner further noted that the service treatment records do not show any chronic pain or escalation of the previous intermittent pain. In addition, examination of the back at the time found no significant pathology. The examiner noted that back pain in the early days of military was common, and in the absence of significant pathology and/or continuity of care from 1979 to 1981, this in-service back pain would be considered transient or self-limiting. The Veteran himself did not report having pain after the incident and throughout active duty. The next formal care was not until 1993 as a result of a civilian injury and again in 1992 as a result of a work-related injury. The 1992 injury was significant and required surgery. Additionally, while the examiner acknowledged the Veteran's lay assertions of pain since service, it was noted that the available records and current examination suggested that he developed chronic pain only after the 1992 injury, but not prior. The examiner concluded that based on a thorough review of the record and clinical findings during examination of the Veteran, the current complaints were at least as likely as not related to the significant back injury in 1992. In this regard, the examiner again noted that a 1983 Reserves entrance examination noted that the back pain at the time was as a result of a civilian work injury 30 days earlier, namely, suggesting that the 1979 incident resolved. Moreover, the Veteran sustained a very significant injury in 1992, which required surgery, and again injured his back in 2004 helping a friend move. In statements received by VA in August 2021, the Veteran and his family members asserted that he had no symptoms subsequent to the 1975 MVA and until entrance to service. On review of all the evidence, lay and medical, the Board finds that service connection for a back disability is not warranted. The Veteran's entrance examination is not available, and as such, the presumption of soundness is not rebutted. Nevertheless, no medical professional concluded that any of the Veteran's back disabilities clearly and unmistakably preexisted service. In this regard, the evidence showed that the Veteran only had intermittent back pain, which was not aggravated during service. Moreover, by the Veteran's own statements, he did not have any back disability at the time of entrance to active-duty service. Furthermore, regarding the congenital defect, as noted by the 2021 examiner, such was only an incidental finding unrelated to any in-service injury, was not subjected to a superimposed injury, and remained asymptomatic throughout service and after discharge from service. As noted, the Veteran does not assert, and the evidence does not show that he had a preexisting back disability other than intermittent pain, and the congenital defect was asymptomatic and remained asymptomatic throughout service and to the present. As such, service connection a preexisting disability that was aggravated by service and/or a congenital defect subjected to a superimposed injury is not warranted. Next, the Board finds that service connection on a presumptive basis is also not warranted. As noted, arthritis is a "chronic disease" and as such is subject to consideration of presumptive service connection. Here, due to the lack of medical evidence, there is no competent objective evidence to show that the Veteran's back arthritis manifested to a degree of 10 percent within one year after separation from service. Specifically, arthritis was not shown until decades after separation from service. Moreover, to the extent the Veteran suggests that symptoms of the currently diagnosed back arthritis were continuous since service, such assertions are internally inconsistent and not credible. As discussed in detail above, the Veteran's service treatment records subsequent to the injury are silent for any complaints, treatment, or diagnoses of a back disability. The 1983 induction examination prior to service with the Reserves specifically noted a civilian job injury 30 days prior, unrelated to any incident during active-duty service. Subsequently, the Veteran reinjured his back at work multiple times after each time the pain was described as related to the correlating incident and not once to military service decades earlier. In the interim, medical records between those injuries showed no complaints or treatment for an ongoing back problem. The chronic care for the Veteran's back disability did not begin until after a major injury in 1992, which required a surgery. More importantly, the Veteran specifically told all medical professionals that he had injured his back at work and did not mention any incident in service. It was not until he filed a VA claim for compensation benefits that he reported the in-service pain. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran's more recent statement implying his back pain had its onset in service are contradicted by past medical records, to include during service in the Reserves, where back complaints were related to a civilian work injury, and post-service treatment, in which he never related the back problems to service but rather to a work related injuries as a civilian in 1992 and a reinjury after helping someone move in 2004. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). The approximate ten-year period without back problems until the work-related injury is one factor that weighs against the claim. The Veteran's failure to report any complaints of back pain prior to, at most, 1992 is persuasive evidence that he was not then experiencing any relevant problems and outweighs his more recent recollection to the contrary. The Board is not only relying on the absence of evidence, but also on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran in which he specifically reported in 1983, approximately 2 years after discharge from active duty, that his back complaints at the time were associated with a civilian work injury 30 days prior to his Reserves period. In 1992, the Veteran underwent a back surgery after a serious work-related back injury and in 2004 reported that he reinjured his back after helping someone move. Notably, the Veteran filed a claim for compensation for a skin disability, ear disability, loss of vision, and lung condition in 2007. If he had a back disability that is related to service at that time it follows that as he was demonstrably aware of the VA claim process, he would have filed a claim of entitlement to service connection for a back disability at that time. However, he did not file a claim for a back disability until almost 10 months later. The Board is not implying that the Veteran purposely gave contradictory statements; it may merely be that with the passage of time his recollections were not entirely accurate. For these reasons, service connection on presumptive basis is not warranted. The Board also finds that the claim is not warranted on a direct basis. While the Veteran asserted that his back disability is related to service, he is a lay person, and, while competent to relate observable symptoms such as pain, he is not competent to relate a medically complex spinal/musculoskeletal disorder to his military service, as he does not possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, all available medical evidence and the Veteran's own lay assertions prior to 2008 have attributed his back problems to post-service injuries. Even assuming arguendo, that the Veteran had back pain in 1983 prior to his reserve service and subsequent to active-duty service, by his own assertions prior to filing a claim for service connection, and to include during enlistment in the Reserves, such pain was related to a civilian work-related injury and not to active-duty service. There is no competent medical evidence linking any current back disability to the in-service fall injury. The weight of the competent and credible evidence demonstrates no relationship between the Veteran's diagnosed back disability and active-duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a back disability, on direct and presumptive bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.