Citation Nr: 21062650 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-42 511 DATE: October 8, 2021 ORDER Service connection for lumbosacral strain and degenerative disc disease of the lumbar spine (back disability) is denied. Service connection for opiate use disorder is denied. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the thoracolumbar spine with lumbosacral strain did not have its onset during active service, did not manifest to a compensable degree within one year of service discharge, and is not otherwise related to any disease or injury in service. 2. The evidence is insufficient to establish that the Veteran's opiate use disorder was proximately due to or aggravated beyond the natural progression by the Veteran's service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not all been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for opiate use disorder have not all been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to January 2001. This appeal is before the Board of Veterans' Appeals (Board) from March 2015 and October 2016 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In the March 2015 Rating Decision, the RO denied service connection for a back disability. The Veteran timely appealed. In the October 2016 Rating Decision, the RO denied service connection for an opiate use disorder. The Veteran timely appealed. In July 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In November 2019 the Board remanded the case to the RO for further development and adjudicative action. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. Secondary service connection on the basis of aggravation may be granted only when there is an increase in severity of the nonservice-connected disability beyond a medically established baseline due to the service-connected disability. The regulation specifically states that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. 1. Entitlement to service connection for lumbosacral strain and degenerative disc disease of the lumbar spine (back disability). The Veteran contends that he has a back disability that is related to two in-service injuries. Specifically, the Veteran states that he initially injured his back in a 1998 motor vehicle accident (MVA) during service and injured it again when he fell while carrying a .50 caliber machine gun in 1998. See July 2019 Hearing Transcript at 2, 3. VA treatment records reflect current diagnoses of lumbosacral strain and degenerative disc disease of the lumbar spine. See e.g. VA treatment records dated in August 2016 (MRI report) and November 2016 (primary care outpatient note). Service treatment records (STRs) confirm that the Veteran was treated for an MVA in November 1998. A November 1998 service treatment note indicates that the Veteran was involved in an MVA the day before when he ran into a deer. He didn't recall trauma to his knee and was able to walk around immediately after the injury but began having pain and soreness in his right knee a few minutes after the accident which has persisted. X-rays were obtained which were normal and the assessment was soft tissue injury to the right knee. During a follow-up visit 3 days later, it was noted that the Veteran's right knee hit the dashboard during the MVA and the Veteran stated that his right knee pain was much improved since the accident. There was no mention of a back injury or back pain. The rest of the Veteran's STRs are also silent for complaints, treatment, or diagnosis pertaining to a back disability. The Veteran declined to undergo a full separation examination, but a Report of Medical Assessment was completed in December 2000, just prior to separation, wherein the Veteran affirmatively denied suffering from any injury or illness while on active duty for which he did not seek medical care. For medical history, the medical examiner noted that the Veteran had a history of knee trauma with no complications. The Veteran underwent a VA examination in July 2016. The Veteran reported that he fell/tripped while carrying a .50 caliber machine gun and injured his left knee and back. He reported being told by a field medic to continue taking the ibuprofen that he was taking for his previous right knee injury. He stated that his back continued to be sore for 1-2 weeks. After reviewing the record and examining the Veteran, the examiner found that, although the Veteran likely had a back injury in service, that injury resolved before the Veteran's current back disability began. The examiner concluded that the Veteran's current back disability is likely not related to service. The examiner based their opinion on the paucity of records from 2003 to the present documenting any back pain and the prior documentation of no back pain. In its November 2019 remand, the Board found that another VA examination was warranted to address the Veteran's July 2019 hearing testimony wherein he asserted that his back pain has been continually present since he first injured his back in service. The Veteran was provided another VA examination in March 2020. The Veteran provided more detail regarding the in-service MVA. He stated that while he was sleeping in the passenger seat, the car hit a deer while on the freeway and his knees went through the dashboard. He reported experiencing back problems shortly thereafter which started as a tightness and soreness. The Veteran stated that he then tripped while carrying a heavy object during service and this increased his back pain. After reviewing the record and examining the Veteran, the VA examiner opined that it is less likely than not that the Veteran's current back strain and degenerative disc disease were the result of the in-service MVA. The examiner noted that the Veteran was involved in an MVA in November 1998 and was seen on November 27, 1998 and November 30, 1998 for complaints of right knee pain related to the accident. The examiner noted that there was no mention of back pain and that on his post-deployment examination, the only mention of previous problems was a history of trauma to the knee. The examiner stated that, given the paucity of records around the event as well as no further mention of back pain until 2013, it is less likely than not that his current back strain and DDD was a result of the MVA in 1998. The medical opinions are accorded significant probative weight as, together, they are consistent with and supported by the evidence of record. Both VA examiners were fully aware of the Veteran's reported in-service injuries, STRs and post-service medical history and the March 2020 examiner was additionally fully aware of the Veteran's testimony that he has experienced continuous back pain since the MVA during service. Nevertheless, both examiners opined that it is unlikely that the Veteran's in-service MVA would have caused his current back strain and DDD. The opinions are consistent with the other evidence of record in the form of both the Veteran's STRs, which are silent for complaints, treatment, or diagnosis pertaining to a back disability, and post-service treatment records and VA examinations which indicate that while the Veteran reported mild back pain with heavy exertion in 2003, he did not report or seek treatment for back symptoms again until July 2013 when he was diagnosed with back strain after twisting a water valve. Based on the examiners' opinions, in conjunction with the other competent medical evidence of record, the Board cannot make a finding that the Veteran's back disability is at least as likely as not related to service, to include his in-service MVA and reported in-service fall while carrying a .50 caliber machine gun. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran, at his hearing and in lay statements asserts that he has had recurrent low back pain since service. However, the competent medical evidence of record does not indicate post-service complaints or treatment for a back disability until 2003 at the earliest, when the Veteran reported occasional low back pain with heavy exertion. See March 2003 VA treatment note. Notably, the next documented complaint or treatment for a back disability was in July 2013 when the Veteran complained of acute lower back pain after turning a water valve. See July 2013 VA treatment note. VA treatment records prior to July 2013 indicate that on all other occasions, the Veteran either did not report, or denied any back pain. See e.g. VA treatment records dated in September 2004, August 2005, October 2005, January 2006, September 2007, November 2007, May 2008. A January 2006 VA treatment note reflects that the Veteran reported that his musculoskeletal symptoms had completely resolved and that he was no longer using Naproxen or Flexeril. Moreover, the Veteran affirmatively denied back pain around the time of service discharge, and this is inconsistent with his testimony asserting back pain since service. Accordingly, given the inconsistencies between the Veteran's statements and the findings in the STRs and post-service treatment records, the Board places greater weight on the specific, reasoned opinion of the VA examiners than the Veteran's more general lay assertions. Moreover, even assuming, arguendo, that the Veteran has had continuity of pain since service, these lay statements of pain are outweighed by the medical examiners' opinions because the Veteran, as a lay person, is not competent to know that the cause of his low back pain during service is the same cause of his low back pain now, particularly where, as here, neither degenerative joint disease of the lumbar spine nor lumbosacral strain was shown during service or to a compensable degree within the first post-service year. The question of an actual association between his current back disability, diagnosed many years after his separation from service, and his reported back pain during service is a medical question too complex for a lay person to competently address. See 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not demonstrated expertise in this area. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran's back disability had its onset during service, has continued since service, manifested to a compensable degree within one year following separation, or is otherwise related to an in-service injury. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for opiate use disorder. The Veteran contends that his opiate use disorder is related to active service. Specifically, the Veteran states that his opiate use disorder is secondary to his service-connected bilateral knee disabilities and his non service-connected back disability. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (a). Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered willful misconduct. 38 C.F.R. §§ 3.301 (c) (2), 3.301(c) (3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301 (c) (3). Direct service connection for an alcohol or opioid use disorder is barred as a matter of law, though it may be granted if there is clear medical evidence establishing that the drug abuse disability was caused by or aggravated by a service-connected disorder. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d at 1376 (Fed. Cir. 2001). In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368, 1376-77 (Fed. Cir. 2001). The Veteran underwent a VA examination in September 2016. The examiner reviewed the record and described the Veteran's medical and prescription history. The examiner stated that they would have to resort to speculation as to whether the Veteran's service-connected knee disability proximately caused his opiate use disorder because while the Veteran reports being prescribed opiates for knee pain in 2003, there is no record of any such prescription or complaints of knee pain in 2003. However, the examiner opined that it is at least as likely as not that there was some aggravation of the Veteran's opiate use disorder caused by his left knee pain as it is likely that he would use pain medication in an attempt to manage pain symptoms. However, the examiner added that she was unable to reliably estimate any specific onset or degree of aggravation based on the limited evidence in the treatment records, the timeline, documentation that appears to show that opiates were prescribed to him most often for medical issues other than knee pain, and the fact that the Veteran's substance use disorder has been in sustained remission since 2012, so there is no aggravation to currently assess. The Veteran also underwent a VA examination in June 2018. After reviewing the Veteran's file, the examiner opined that it is less likely than not that the Veteran's opiate use disorder was proximately due to or caused by the Veteran's service-connected left or right knee disabilities. For rationale, the examiner stated that psychotherapy records from 2013 indicate that the Veteran acquired a serious infection while working on the farm and was treated with an opioid, which led to his addiction to opioids. The examiner was unable to establish a baseline level of severity for the Veteran's opiate use disorder but concluded that it is less likely than not that the Veteran's opiate use disorder was aggravated beyond its natural progression by the Veteran's service-connected left and right knee disabilities. For rationale, the examiner stated that "there is no convincing evidence that the Veteran's opiate use disorder was aggravated beyond its natural progression by his/her service connected: left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome. It is unclear when the Veteran began using opiates. During the September 2016 VA examination, the Veteran reported being prescribed opiate pain medication by the VA in 2003 for his knee pain. However, as noted by the September 2016 VA examiner, there is no indication of any such prescription in 2003. The VA examiner indicated that they reviewed the Veteran's pharmacy records through Vista Web and found that a single tablet of Percocet was prescribed in 2000 and that opiates were not prescribed again until 2007, for pain related to a boil. While records prior to 2003 are not present in the claims file, the Board finds the September 2016 VA examiner's characterization of the 2000 VA prescription of Percocet accurate given the examiner's medical qualifications and the lack of any evidence suggesting the characterization is inaccurate. VA treatment records reflect, both that the Veteran reported first using heroin in approximately 2001, and first began using opiates at age 25, in 2003. See May 2008 VA treatment note. Notably, an August 2013 VA mental health treatment note reflects that the Veteran reported recreationally using opiates in "the bar scene" and stated that "once [he] got sick with leptospirosis, [he] used pills to cover for the sickness to work every day" and became addicted. The June 2018 opinion is highly probative as it is consistent with and supported by the evidence of record and contains a clear rationale. Further, there are no opinions of record which indicate that the Veteran's opiate use disorder is proximately due to or the result of (i.e. caused by) his service-connected bilateral knee disabilities. The preponderance of evidence is against a finding that the Veteran's opiate use disorder is proximately due to his service-connected bilateral knee disabilities. While the September 2016 VA examiner concluded that it was at least as likely as not that the Veteran's opiate use disorder was aggravated by his service-connected left knee disability, the opinion provides no baseline prior to the aggravation. Moreover, the opinion makes clear that it would be speculative at best to provide any degree of aggravation based on the evidence of record, as noted above. Specifically, VA cannot concede that the Veteran's opiate use disorder was aggravated by his service-connected knee disabilities because neither the September 2016 nor June 2018 examiner was able to determine a baseline for the Veteran's opiate use disorder without completely speculating as there was no measurable way to establish such a level objectively. See 38 C.F.R. § 3.310(b). Based on the foregoing, the evidence is insufficient to establish that the Veteran's opiate use disorder was proximately due to or aggravated by the Veteran's service-connected bilateral knee disabilities. Accordingly, entitlement to service connection for opiate use disorder is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.