Citation Nr: 21061663 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-11 541 DATE: October 4, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A chronic low back disability was not manifested in service; arthritis of the low back was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current low back disability is etiologically related to his service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1981 to November 1993. This case is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 Department of Veterans Affairs (VA) rating decision. In March 2015, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In October 2015, the Board remanded the case for additional development. A February 2018 Board decision denied service connection for a low back disability, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2018 Order, the CAVC granted an October 2018 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board's decision and remanding the matter to the Board for action consistent with the terms of the JMR. In April 2019, July 2020, December 2020, and May 2021 the Board remanded the case for additional development. Entitlement to service connection for a low back disability is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis regarding his back. On January 1989 MFO examination, his spine was normal on clinical evaluation. In August 2011, the Veteran established care with VA. He reported 10 medical conditions/complaints (such as diabetes, hypertension, and frequent mild headaches), but did not report back problems. On physical examination, he denied back pain or problems. In September 2012, he transferred care to a new VA primary care provider. He reported pain in his knees and ankles that he related to being a paratrooper in service; he did not report back pain. In an August 2013 statement, the Veteran reported that he experienced back pain in service when carrying mortars (and other heavy gear), marching, and doing physical training. He acknowledged that he "was not treated for this condition in service" but explained that he "never complained about back pain because I was a soldier and we pressed through the pain in order to get the mission done. I have suffered from back pain since I left the military. Again I did not seek treatment because I found a job and pressed on with life." A September 2013 VA treatment record notes there is no lumbar spine degenerative disc disease (DDD). A May 2014 VA treatment record notes the Veteran denied having low back pain. At the March 2015 Board hearing, the Veteran testified that he injured his back in service carrying heavy rucksacks and jumping from vehicles and helicopters. He testified that he did not seek treatment early after separation from service because he had a young family and was focused on obtaining employment to support them. He denied having a diagnosis of a current back disability. A May 2015 VA treatment record notes the Veteran's report of chronic lower back pain that has been present for 20 years "but learned to deal with it and never complained about it before." He reported that 3 weeks earlier he began to experience right hip and leg radiating pain. He denied any known injury, push/pulling trauma, or recent heavy lifting. X-rays showed "minimal degenerative change to the lumbar spine." A July 8, 2015 VA treatment record notes the Veteran's report of "Off and on back pain" and "having right hip pain lately without any acute injury known." A July 15, 2015 VA treatment record notes the Veteran's report of chronic low back pain for about 20 years. He associated the "onset to the rigors of military activities. He reported pain has been more-or-less constant unrelenting for the past 10 years." He denied prior treatment, such as chiropractic or acupuncture. On March 2016 VA examination (pursuant to the Board's October 2015 remand), the Veteran related that he fell from a rope bridge in January 1989, sustaining a back injury, which he self-treated with Motrin and ice packs. The examiner noted that the Veteran's STRs show he was seen for his right thumb which was injured in the fall and was casted. The Veteran reported that he continued to have intermittent low back pain in service related to his activity level; he was in the infantry and frequently had to participate in forced marches, carry heavy mortars, and jump from trucks, and following such activities would have low back pain which he self-treated. He reported that, after service, he continued to have intermittent low back pain, but it was not as bad because he was no longer engaging in strenuous activities such as those in the infantry. The examiner noted that the Veteran's STRs are silent for back complaints on active duty, and VA treatment records are silent for back complaints prior to 2015 (22 years following the Veteran's release from active duty). The Veteran reported that, in the last 5 years, he had been having chronic low back pain most days, and it would flare up with excessive activity. He developed right sciatica in April 2015. May 2015 X-rays showed mild degenerative change to the lumbar spine. He was referred to physical therapy which provided temporary benefit. He reported constant pain into the right buttock and posterior thigh, down to the knee, and that sciatic pain could flare up with excessive activity or even with prolonged sitting or standing. Following a physical examination, the diagnoses were lumbar spine osteoarthritis and lumbar intervertebral disc syndrome (IVDS). The examiner opined that the claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's STRs are silent for complaints, diagnosis or treatment of low back pain, and VA records are silent for complaints of back pain until 2015. The examiner opined that, while the Veteran does have lumbosacral strain, minimal degenerative osteoarthritis, and lumbar strain, he found "no evidence that these are service related." The examiner stated that he could only speculate as to the etiology of the Veteran's low back pain as it is unknown; however, as there is no record of the Veteran complaining of low back pain until 2015, and opined that it is less than 50% likely that the Veteran's current low back pain is related to his active-duty service. The examiner cited to medical literature in explaining that low back pain is a ubiquitous health problem which represents the most frequent disorder of mankind after the common cold: between 65% and 80% of the world's population develop back pain at some point during their lives, and as many as 90% of patients with back pain have a mechanical reason for their pain, which implies that pain is secondary to overuse of a normal anatomic structure, trauma, or deformity of an anatomic structure; frequently, however, no such trauma or deformity can be identified with certainty. In a May 2016 statement, the Veteran reiterated that he injured his back in service when he fell off a rope bridge; he also reported that he carried heavy mortars in service. He reported that he has self-treated with ibuprofen and salonpas. A February 2018 Board decision denied the claim. In the October 2018 JMR, the parties agreed that remand was necessary to try and obtain any missing STRs and to obtain complete records of private treatment. The parties also agreed that the March 2016 examiner failed to consider the Veteran's lay statements (such as his reports of intermittent pain since service) and specifically address whether the Veteran's low back diagnoses could have been caused by falling from a rope bridge, participating in ruck marches, jumping out of vehicles/helicopters, and/or carrying heavy mortars. [November and December 2019 correspondence confirmed that all available STRs and service personnel records have been uploaded to the Veteran's electronic file.] In November 2019, VA received private chiropractic treatment records. An August 2017 record notes the Veteran's report that he fell from a rope bridge in 1992. A nexus/etiology opinion was not included. On December 2019 VA back examination, lumbar arthritis was diagnosed. The Veteran reported that his low back pain "comes and goes"; he related sciatica was diagnosed about four years prior. He related that he injured his back when he fell from a rope bridge (about 10 feet), and was treated for a hand injury sustained in that fall. He reported currently working at a hardware store as an installation coordinator, doing "some lifting tasks with his job and this impacts his back pain." The examiner reviewed the record and noted that the STRs are silent for evaluation, diagnosis, and treatment for a back condition. He noted that August 2011 and September 2012 treatment records do not show back complaints. He noted the May 2015 VA treatment record which noted a complaint of back pain for 20 years, and subsequent treatment records regarding back complaints/diagnoses. The examiner opined that the Veteran's low back disability is less likely than not related to service due to a lack of medical evidence for any back condition during military service. He noted that the Veteran was treated for a left-hand ganglion cyst and was treated with a cast upon breaking his finger playing football; there was no medical history of a traumatic fall. He noted that the Veteran was treated for ankle and knee pain on several occasions, but not back pain (in other words did report having pain in other anatomic areas). He was also treated for other complaints like blisters, groin pain, nose problems, flu-like symptoms, and a foot rash. The examiner noted that, following service, the Veteran had a carpentry business; he opined that "carpentry work after military service can be a contributing factor to his back pain." In August 2020, the December 2019 examiner re-reviewed the record and provided an addendum opinion. He reiterated his prior opinion and explained that a traumatic fall from a rope bridge, as described by the Veteran, "will definitely be assessed by medical for serious injuries. But, there is no such medical record..." He explained that if the Veteran had injured his back, he would expect to see a duty profile, particularly in an MOS carrying mortars. He again provided a negative nexus (to service) opinion based on findings that the Veteran "lacks evidence of a back condition that was incurred during military service" and the first postservice complaint of back pain was 22 years after separation from service. He also noted that the Veteran was involved in a personal business of selling cabinets and countertops until he lost the business and began working as an installation coordinator at a hardware store. He again wrote, "It is likely possible that after military service, his job as a cabinet and countertop maker/seller may be the contributing factor to his back pain." He also noted that a May 2015 x-ray showed minimal degenerative changes in the spine, and explained that a history of a traumatic fall "may show a compelling lumbar pathology other than the minimal rating." In December 2020, the Board remanded this matter for an advisory medical opinion (by a medical provider who had not previously opined in this matter) regarding the likely etiology of the Veteran's low back disability. The remand directed that the rationale for any opinion must address the Veteran's lay statements (for example, his August 2013 and May 2016 statements and his March 2015 hearing testimony) regarding injury to (and pain in) his low back in service and intermittent low back pain since then. The remand also advised the consulting provider that the absence of documentation during or after service cannot be the sole basis for rejecting a possible nexus to service. In January 2021, a (fee basis) family practice physician reviewed the record and provided a negative nexus (to service) opinion. He wrote that his medical record review revealed "records consistent only with" lumbar pain/strain and lumbar degenerative disc disease (DDD). He continued, "The [Veteran's] low back condition is independent and separate from active military service. It is less likely than not that it began in (or is otherwise etiologically related to) the Veteran's military service, to include as due to a fall from a rope bridge, participation in ruck marches, jumping from vehicles and helicopters, and carrying heavy mortars." In a March 2021 addendum, the same physician acknowledged lumbar spine diagnoses of osteoarthritis, IVDS, lumbar strain, lumbosacral strain, lumbar dysfunction syndrome, lumbar spondylosis, and chronic low back pain with bilateral sciatica symptoms. He again provided a negative nexus opinion and wrote, "The etiology of the multiple back conditions is secondary to joint aging and chronic over use (sic) of the spine and back over duration of many years and is independent from [the Veteran's] active military career." No additional rationale was provided. In May 2021, the Board again remanded the matter for an adequate advisory medical opinion that addresses the Veteran's lay statements and provides adequate rationale. Later in May 2021, another VA physician reviewed the record and opined that it is less likely than not (less than 50% probability) that the Veteran's present condition began in service or is etiologically related to service, to include fall from a rope bridge, ruck marches, jumping from vehicles and helicopters, and carrying heavy mortars. She noted that the Veteran's first documented postservice complaint of back pain is in 2015, 22 years after separation from service. [She noted that the Veteran denied back pain or problems in August 2011.] Imaging at that time showed minimal degenerative changes to the lumbar spine. She also acknowledged multiple other lumbar spine diagnoses including osteoarthritis, IVDS, lumbar strain, lumbosacral strain, lumbar dysfunction syndrome, lumbar spondylosis, and chronic low back pain with bilateral sciatica symptoms. The physician noted that the STRs are silent for complaints, diagnosis, or treatment for low back pain. She indicated that despite the silent STRs, "Strong consideration was given" to the Veteran's lay report of "intermittent low back pain since service" and that "due consideration was given" to his lay report of self-medicating in service to avoid being placed on medical profile. She noted that despite his reports, "the assumption of fitness applies when records show that after separating from military service [he] successfully held several very physically demanding jobs and that he owned and operated his own cabinet business (selling and installing cabinets and countertops). She further explained that the claim lacks two important elements of causality, namely continuity and a temporal association between the onset of symptoms and the activities in-service. She again cited to his August 2011 denial of back symptoms and his ability to successfully own and operate a postservice carpentry business. Analysis It is not in dispute that the Veteran now has a low back disability. VA examination reports show diagnoses of lumbar spine osteoarthritis, IVDS, lumbar strain, lumbosacral strain, lumbar dysfunction syndrome, lumbar spondylosis, and chronic low back pain with bilateral sciatica. What remains to be established is whether his current low back disability is related to an injury in service. The Veteran's STRs are silent for complaints or findings pertaining to his low back. His reports pertaining to an injury in service have been inconsistent. Initially, in August 2013, he reported that he experienced back pain in service due to physical training, marching, and carrying heavy mortars. In March 2015, he testified that he injured his back in service carrying heavy rucksacks and jumping from vehicles and helicopters. On March 2016 examination, he provided his first clinically documented report that he injured his back in January 1989 when he fell from a rope bridge. [The Board notes that STRs contain a January 5, 1989 report of medical examination which noted his spine was clinically normal. STRs also contain a January 17, 1989 record which notes that the Veteran's right hand was placed in a cast related to a December 1988 football injury (contrary to his report of requiring a hand cast after a fall from a rope bridge.] And in August 2017, he told a private chiropractor that he injured his back in 1992 when he fell from a rope bridge. Although the reports of back pain/injury in service are inconsistent, the Board will assume strictly for purpose of this decision that an unreported back injury [of insufficient gravity to require treatment] may have occurred in service. As noted by VA examiners, he sought treatment in service for complaints pertaining to his ankles, foot rash, left hand ganglion cyst, blisters, chest pain, right arm pain, stomach virus, knees, right shoulder, scalp laceration, groin, and nasal/breathing problems; treatment for a low back disability and reports of back pain are not documented. The Board observes that while absence of notation of a significant back injury in service may not be a sole basis for finding that such an injury did not occur (which is why for purposes of this appeal the Board is assuming that an injury did occur) the absence of any notation of such any injury or of back-related complaints in either 1989 or 1992 or at any time during service or prior to 2013 (or clinical documentation of such report in 2015) is strong evidence weighing against the credibility that he has had continuous back complaints since an injury in service. Considering the inconsistency of the Veteran's reports of when a back injury in service occurred and descriptions of how the injury was incurred, along with the absence of notations of related complaints in the face of numerous clinical notations of various other complaints during a long intervening period in service and following service during when the record is silent regarding back complaints, the Board finds the Veteran's more recent reports of continuous (self-treated and unreported) back complaints since an injury in service to be tailored to the compensation seeking process, inconsistent with contemporaneous clinical data, and not credible. As arthritis of the thoracolumbar spine was not manifested in service or in the first postservice year, presumptive service connection for such disability (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(a)) is not warranted. While service connection for the thoracolumbar spine arthritis may be established by showing continuity of symptomatology (see Walker v. Shinseki, 708 F 3d. 1331 (Fed. Cir. 2013)), the earliest clinical notation of back complaints in the record is in 2015 (more than two decades after the veteran's separation from service). While the Veteran is competent to report back pain, he is not competent to establish by his own observation he has had lumbar spine arthritis since service. The diagnosis of arthritis requires medical expertise (informed by diagnostic studies, such as X-rays). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that lay evidence of continuing symptomatology after service may be competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Board has found the Veteran's reports of continuous back pain since service not credible. Regardless, current reports of ongoing back pain of some 20 years duration, would not of themselves establish continuity of back arthritis manifestations. See Walker v. Shinseki, 708, F. 3rd 1331 (Fed Cir, 2013). There is not competent (medical) evidence in the record indicated (or suggesting) that the Veteran's lay reports of a long history of back complaints reflect continuing symptoms of arthritis of the spine since service. The VA medical opinions address that matter, noting that the minimal nature of the back arthritis found when it was first clinically documented many years after service weigh against any finding that such disability is related to remote trauma is service. Therefore, the preponderance of the evidence is against a finding of continuity of symptomatology. In that regard, VA clinical records show the Veteran denied back pain/problems in August 2011 while reporting 10 other medical conditions and complaints. In September 2012 and May 2014, he denied (or did not report) back pain. The Board acknowledges the Veteran's more recent lay report of intermittent back pain since service; it also notes his July 2015 report of "constant unrelenting" pain for the prior 10 years. But these reports, particularly the report of constant pain from 2005-2015, are inconsistent with contemporaneous medical evidence. The Board finds that his reports of the history of the claimed disability documented (or for that matter, not documented) contemporaneously in a clinical (treatment) context merit greater probative weight than statements he has made more than 20 years following service, in connection with a claim for compensation. Continuity of back arthritis symptoms since service is simply not shown (and service connection for such disability based on continuity (under 38 C.F.R. § 3.303(b)) is not warranted. In the absence of evidence of a chronic low back disability in service, manifestation of lumbar arthritis in the first postservice year, or evidence of continuity of low back complaints since service, the etiology of a low back disability first noted in clinical records more than two decades after separation from service is a medical question. To the extent that the Veteran asserts his low back disability is related directly to an injury in service, as a layperson, he lacks the expertise to offer a competent opinion in the matter. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current low back disability is etiologically related to his active service. The most probative medical evidence regarding the etiology of the Veteran's back disability is in the opinion of the May 2021 VA consulting provider. Upon review of the record, she opined that the Veteran's low back disability (including diagnoses of osteoarthritis, IVDS, lumbar strain, lumbosacral strain, lumbar dysfunction syndrome, lumbar spondylosis, and chronic low back pain with bilateral sciatica symptoms) is less likely than not related to service. She afforded "strong consideration" to the Veteran's lay report of "intermittent low back pain since service" and "due consideration" to his lay report of self-medicating in service to avoid being placed on medical profile [as is noted above, he nonetheless reported numerous other complaints, and as the evidence shows his hand was placed in a cast limiting his duties following a football injury which he has more recently identified as a fall from a rope bridge injury]. She also acknowledged his lay reports of falling from a rope bridge, participating in ruck marches, jumping from vehicles and helicopters, and carrying heavy mortars. She cited to the factual record, including the fact that h denied back problems in August 2011, and the fact that the first documented postservice complaint of back pain is 22 years after separation from service. She explained that the evidence weighs against the claim, including because of the lack of continuity of symptomatology, the lack of temporal association between the onset of symptoms and the in-service activities, and the fact that the Veteran was able to perform a very physically demanding postservice occupation (operating a carpentry/cabinet/countertop business), weighing against an ongoing significant back problem for much of the postservice period. She also stressed the minimal nature of the pathology found when a back disability was first documented by X-rays after service. Notably, there is no competent (medical opinion) evidence of record that relates the Veteran's current low back disability to his service; the Veteran has not submitted any such opinion, and nothing in the record suggests such an opinion exists. Considering the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current low back disability is etiologically related to his service. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.