Citation Nr: 21062196 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-29 997 DATE: October 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of the Veteran's discharge from active duty. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1970 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010, rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing is of record. In November 2017, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a February 2018 decision, the Board, amongst other issues, denied service connection for a cervical spine disability, and remanded the claim of entitlement to service connection for small radial tear L5-S1, with chronic low back pain. In March 2020, the Board denied service connection for a low back disability. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Order by the Court in accordance with a Joint Motion for Remand (JMR), the issue was remanded to the Board for additional development and adjudication. Entitlement to service connection for a low back disability is denied. The Veteran reported injuring his back during service, specifically as a result of a motor vehicle accident. Treatment records confirm a low back disability. The question that remains is whether the current low back disability is at least as likely as not related to an in-service injury. The Board concludes that the preponderance of the evidence is against finding that the Veteran's low back disability is directly due to his military service. Service treatment records (STRs) contain a record from May 1973 when the Veteran was seen with complaints of intermittent back and neck pain, with a reference to a jeep accident 8 months prior. At his discharge examination in January 1974, he answered no to recurrent back pain. There is mention of the jeep accident, but there was no notation of any back pain or residual problems from this incident. Treatment records from the VAMC detail that in August 2006 he reported back pain and was treated with ibuprofen. At a February 2009 primary care follow up visit, he complained of lower back ache since service. An MRI of the spine was done in February 2009 that revealed a small radial tear of L5-S1 disc. At a September 2009 visit, he complained of low back pain and numbness in his legs. At an April 2010 visit, the Veteran was seen with complaints of chronic low back pain. In August 2011, he was seen with complaints of back pain. At the June 2012 RO hearing, the Veteran testified to seeking treatment at the Houston VAMC from 1974 to 1977 for his in-service back injuries. A request was made for the Houston VAMC 1974 to 1977 records, and a formal finding of availability was rendered in March 2013. In a reply from the Houston VAMC, it was noted a request was made to the archives for records from 1974- 1978; however, no records were located. In October 2018, the Veteran underwent an examination. He was diagnosed with lumbar degenerative disc disease. He reported that during service he was involved in a motor vehicle accident in which he was a passenger in a jeep that flipped over. He reported being transported to the ER, and having back pain ever since. He reported stabbing and sharp pain in his low back. The examiner noted the STRs are void for back related complaints during service, and the separation physical contains no indication the Veteran suffered from back pain or a back disability. The examiner concluded the Veteran's back disability less likely than not had its onset in or is otherwise related to his military service. In a November 2019 addendum, the examiner noted again there are no medical records of the Veteran's complaints of back pain during service, and the separation physical notes the motor vehicle accident but there is no notation of any back pain from this accident. To conclude, the small radial tear, L5-S1, less likely than not had its onset in or is otherwise related to his military service. In June 2021, the Veteran underwent another examination. The examiner noted a review of STRs and post-service records and statements, to include the Veteran's June 2008 statement that he injured his back in service and has had pain since then. He was diagnosed with radial tear of L5 S1 with minimal posterior bulge and bilateral lower extremity radiculopathy. He was in an accident in service and complained of back pain. Upon discharge there were no reports of back pain. The examiner concluded the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner indicated there is insufficient documentation of back pain during service to render a positive opinion, or evidence of chronicity. In so concluding, the examiner specifically referenced the Veteran's post-Jeep accident reports of shoulder and neck pain, but no notations of back problems. The evidence of record does not show symptoms consistent with a low back disability for several years following his discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The first mention of a low back disability was at the time of filing, 30+ years post discharge. Although the Veteran believes his low back disability is due to service, he is not competent to provide a nexus opinion in this case. He is competent to provide testimony as to his observations, such as experiencing pain, but he is not competent to provide an opinion as to the etiology of his low back disability. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, he was not shown to have arthritis in the first post-service year. His contentions that he experienced low back pain since service are not corroborated by the contemporaneous medical evidence of record, and had his symptoms been as significant as he now reports, he would have likely undergone treatment in the interceding years. This is further supported by the fact the Veteran did not seek treatment for his back post service, with the first report of back pain on the record being a mention in August 2006 of back pain, for which he was given ibuprofen to treat. Again, there were no records located for the years 1974-1978, but even if he received treatment for back pain during those years, the next treatment for back pain was decades later. Also, the Board finds it highly probative that the Veteran did not report back problems at discharge when he was afforded the opportunity to do so. Consequently, the Board does not afford the Veteran's lay statements much probative value. The statements of continuity of back pain since service lack credibility, as there are simply no medical records or reports from witnesses, attesting to or confirming the Veteran to have suffered from back pain for over 30 years post discharge. Conversely, the VA examiner's opinion has significant probative value as it reflects consideration of all relevant factsto include the Veteran's lay statements regarding in-service injuries and post-service treatment/symptoms. The 2021 VA examiner further found that there was no evidence of chronicity of pain or injury post-discharge for several years. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The record is void from the time of discharge to 2006 of back complaints, and there is no probative evidence to support an ongoing back condition. The examiner explained there was insufficient evidence of back pain during service or of chronicityspecifically pointing out his reports of shoulder and neck pain due to his jeep accident, but no reports of back pain at the time of the accident. Unfortunately, the evidence does not reflect a conflicting medical opinion finding a positive relationship between the Veteran's current disability and any in-service event, injury, or disease. Even if the Board accepts the Veteran's statements as true regarding continuous symptoms since service, the most probative evidence does not show that his current back disability is due to service. During service, there was no indication of a L5-S1 tear, nor is there probative evidence to show that his current back disability is related to the 1973 report of back pain, and the Veteran is not competent to determine whether his current back disability is related to the in-service back pain complaints. Again, upon discharge, the Veteran did not have a diagnosis of L5-S1 tear, nor did he complain at discharge of back pain. This was addressed by the VA examiner, who noted the service complaints, and explained there is no indication of chronicity or of a relation to his current condition. Further, there is no indication the Veteran suffered from arthritis within a year of discharge. There is no competent opinion to the contrary. Ultimately, the most probative evidence of record does not show that he suffers from a back disability that is directly due to service or presumptively related to service. Absent probative evidence linking his claimed disability to service, service connection must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.