Citation Nr: 21062274 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-43 907 DATE: October 6, 2021 ORDER Entitlement to service connection for a thoracolumbar spine (low back) disorder is denied. FINDING OF FACT A low back disorder is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from June 1978 to July 1982. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2020 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In an August 2019 decision, the Board denied this claim. The Veteran appealed that decision to the Veterans Court. In an August 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's August 2019 decision in part, and remanded this issue back to the Board for additional development consistent with the Joint Motion. Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a low back disorder. The Veteran is seeking service connection for a low back disorder. He served during peacetime, entering active duty service in June 1978. Service treatment records reveal an injury to his lower back in January 1981. According to the progress note, he fell and struck his lower back on the edge of a bench. He complained of lower back pain and was diagnosed with a contusion of the iliac crest. However, there is no indication of follow-up (Record 05/08/2013 at 37). A report of medical examination performed on June 28, 1982 (service separation), reveals normal findings upon examination of the spine (Record 05/08/2013 at 5). Consistent with the examination results, a report of medical history completed by the Veteran on the same day as the examination reveals that the Veteran denied any history of, or current, recurrent back pain (Record 05/08/2013 at 46). The Veteran was separated from active duty service on July 7, 1982. He filed his initial post-service claim in February 2008, more than 25 years later. The current appeal arises from an application to reopen, received at on April 30, 2013. In the August 2020 decision, the Board reopened the claim and denied it on the merits. Private treatment records in October 2006 reveal complaints of lumbago. An October 2006 MRI of the lumbar spine reveals prominent left osteophytic spurs and moderate degenerative annular bulging at the L5-S1 level, mild annular bulging at the L4-L5 and L3-L4 levels, and minimal annular bulging at the L2-L3 level (Record 04/14/2008). A May 2012 treatment record from the office of Dr. U.P., a private physician, states that the Veteran was diagnosed with degenerative disc disease of the lumbar spine. This condition was described as a significant lower back problem that would only worsen with time (Record 07/29/2013 at 4). In August 2014, Dr. U.P. submitted a letter in support of the Veteran's claim. He opined that the Veteran's lumbar spine disorder was "as likely as it is not[...] related to his military service as records indicate" (Record 09/10/2014). C.B., the Veteran's former employer, also submitted a letter in August 2014. She stated that at the time she hired him in 1983, she was not aware of any problems. However, he soon requested work accommodations due to a back injury he sustained in the military. Specifically, the Veteran asked to be excused from tasks requiring heavy lifting or standing for long periods of time. C.B. also claimed that the Veteran would call in sick because of his back pain (Record 09/10/2014). M.L., the Veteran's mother, stated in August 2014 that he exhibited signs of distress while he was visiting home on leave. When she asked what was wrong, he said he had injured his back carrying a chain on the ship. She also asserted that the Veteran continued to complain of lower back problems while he lived at home for a time after being discharged (Record 09/10/2014). An April 9, 2014, report from Integrated Pain Solutions notes the Veteran's account that he has been experiencing back pain for more than 10 years (1980). The diagnosis was lumbosacral spondylosis without myelopathy, and lumbar degenerative disc disease (Record 06/27/2015 at 7). The initial visit to this provider appears to be in February 2014. The Veteran was afforded a VA examination in July 2015. The Veteran recounted his claim that his current disability was linked to the injury he sustained to his lower back in January 1981 (Record 07/15/2015). However, the examiner concluded that the Veteran's lumbar spine disorder was less likely than not related to service. This is because a contusion is an acute condition defined as any damage to the body that does not break the skin but ruptures the blood capillaries beneath, resulting in discoloration. By contrast, the Veteran's radiology studies indicate that he currently suffers from degenerative changes to his lumbar spine, which were caused by aging. Additionally, the examiner found no documentation of chronicity concerning the Veteran's lower back condition in the service, to include his June 1982 separation examination. Moreover, there was no evidence of care for a back disability until 2006, which is more than a decade after the Veteran's separation from active service. Thus, the examiner determined that this weighed against the existence of a chronic in-service disability and did not support a nexus between the Veteran's current impairment and an in-service event (Record 07/15/2015). VA outpatient treatment records can be summarized as showing the Veteran's assertion to healthcare personnel that he has had arthritis or other low back disorder since 1980. These reports are presented without additional comment by the examiners (Record 01/23/2014), (Record 01/23/2014). SSA records obtained in April 2021 reflect the presence of a current low back disorder, but do not relate such disorder to service (Record 04/02/2021), (Record 04/02/2021). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a low back disorder are not met. The basis for the August 2020 Joint motion was that the Board had not ensured compliance with VA's duty to assist by obtaining the Veteran's records from the Social Security Administration (SSA). Accordingly, the Board remanded the claim in February 2021. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). As instructed by the Board, the agency of original jurisdiction obtained the Veterans social security records and readjudicated the claim. The Veteran sustained a contusion to the low back during his service. The evidence also substantiates a current low back disorder, diagnosed as arthritis and spinal stenosis. Accordingly, two of the three elements necessary to establish service connection have been substantiated. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Saunders, 886 F.3d 1356 (2018) (a veteran seeking compensation under 38 C.F.R. § 3.303(a) must establish three elements). However, a preponderance of the evidence is against a relationship between the injury in service, or any other event in service, and the current low back disorder. With reference to presumptive service connection criteria above, the Board finds that there was no manifestation of arthritis to a degree of 10 percent or more within one year of service separation. Accordingly, service connection is not presumed. The normal clinical examination of spine at service separation is probative and persuasive evidence against incurrence of the current low back disorder in service. This is consistent with the Veteran's denial of a history of, or current recurrent back pain. It is again supported by the opinion of the VA examiner in July 2015, which argues against a relationship between the current low back disorder and service. The Board finds that the examiner's rationale is consistent with the evidence. The Board has considered the opinion of Dr. U.P. However, aside from the fact that no meaningful rationale was provided, the opinion refers to the service records. While those records do document a contusion, they also establish a normal spine examination and the Veteran's denial of recurrent back pain. Dr. U.P. also apparently ignored evidence of a motor vehicle accident in February 2010, at which time the Veteran was noted to have loss of disc height in the thoracic spine and degenerative narrowing in the lumbar facet joints (Record 04/02/2021 at 135). In addition, Dr. U.P. did not discuss a January 25, 2011, clinical note in which the Veteran reported that his back pain had started three months prior, and that the pain came on "all of a sudden" while doing laundry. While he reported back pain in service, he described the post-service history of back pain as "on and off" (Record 04/02/2021 at 140). The examiner's failure to even discuss several pieces of relevant and significant evidence undermines the basis for the opinion and calls into question the care with which the evidence was reviewed. Accordingly, the Board assigns greater probative weight to the VA examination and medical opinion. As noted above, VA outpatient treatment records list a 1980 date of onset of degenerative disc disease. While the actual injury was in 1981, this discrepancy is not significant. Where, as here, it is unclear from the context of such a report whether the examiner is making a finding or simply reiterating the Veteran's statement, such report cannot be given the same probative weight as an explicit and conclusively-stated medical opinion on the question. Therefore, these reports are outweighed by the July 2015 VA opinion. Similarly, the report to Integrated Pain Solutions that the disorder began in 1980 is noted without such comment as would indicate a specific finding by the examiner. While it is clear that the Veteran reported back pain in service and after service, this is not in itself probative of onset of a chronic disorder in service. The evidence indicates that the Veteran's back complaints have been "on and off" as he put it. The Board has considered the Veteran's lay statements, and those submitted by others on his behalf, regarding etiology. However, relating current arthritis and spinal stenosis to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex. Therefore, it is outside the competence of a layperson because the record does not show that they have the medical training or credentials to make such a determination. Such an opinion is not capable of lay observation. Accordingly, the lay statements are unpersuasive as to an etiologic relationship between the claimed low back disorder and service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In addition, the Board notes that the Veteran has been inconsistent regarding the description of his injury in service. In a July 2011 state disability evaluation, he reported that a 100-pound piece of machinery fell onto his back in service (Record 04/02/2021 at 79). He told his mother that he injured his back carrying a chain on his ship. He apparently did not mention the 100-pound piece of machinery to his mother. He reported in January 1981 that he fell and struck his lower back on the edge of a bench. These widely varying accounts of the injury in service undermine the credibility of his current recollections. He has not described having multiple injuries; rather, he has differed in his description of the injury. The Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In weighing the conflicting statements provided by the Veteran, context and contemporaneousness are critical factors. An earlier description of an event is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the earliest statements of the onset of symptoms are more reliable than later descriptions. The earliest accounts of the injury in service come from the 1981 injury report, which noted a fall onto a bench, and from the service separation examination wherein the Veteran noted no history of, or current, recurrent back pain. Furthermore, because those accounts were both presented in the context of routine medical evaluations, it seems likely that he would report events carefully and accurately. The Board takes notice that the "medical diagnosis or treatment" exception to the hearsay rule (Fed. R. Evid. 803) provides that "statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care." Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans' Appeals' reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran's mother also asserted that the Veteran continued to complain of lower back problems while he lived at home for a time after being discharged. The Board notes that "some time" is rather imprecise, and does not suggest a chronic back disorder. While these observations are competent as to what was observed, they are not competent evidence of the incurrence of arthritis or spinal stenosis and any event in service. Regarding the statement of the Veteran's former employer, she reported that she hired the Veteran in 1983, which is after service, and that she was not aware of any problem at the time. Moreover, the Veteran's complaint of back pain and calling in sick does not establish that any currently diagnosed disorder existed at that time, or that such complaints were manifestations of a chronic low back disorder. Complaint of pain is not necessarily a manifestation of chronic disability. This determination requires medical expertise. The Board also notes that this account appears inconsistent with what he reported to the state vocational evaluation board in May 2008. There he described having multiple physically demanding jobs after service, including assembly work, shelf stocking, furniture manufacturing, and commercial electrician. He did not describe any issues with back pain, and noted the reasons for terminating these jobs as "argument with the district supervisor" (fired); "pay was too low" (quit); "laid off"; "contract ended"; "decided to move"; "failing a drug test"; "better employment opportunity" (quit); "safety violation" (fired); "better paying position" (quit); "unclear communication" (fired); and "possibly being over budget" (fired). It is not until his last job that he reported back problems as being the reason for leaving. That job began in August 2006, some 23 years after service (Record 04/02/2021 at 122). This scenario is more consistent with the normal findings at service separation, with his denial of back symptoms at service separation, and with the VA medical opinion than it is with the more recent descriptions of onset of a low back disorder in service. In sum, the Board finds that the claimed low back disorder was not incurred in service and is not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed low back disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.