Citation Nr: 21063624 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-37 898 DATE: October 14, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence shows that a back disability was not present in service or until many years thereafter and it is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Navy from January 1978 to June 1999. In a March 2019 decision issued by a Veterans' Law Judge other than the undersigned, the Board of Veterans' Appeal (Board) denied the Veteran's claims of service connection for a back disability and allergic rhinitis and remanded the claim of service connection for hypertension. As to the claim of service connection for a back disability, the Veteran appealed the March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent March 2020 order, that incorporated the parties December 2019 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the March 2019 Board decision that denied this claim. As to the claim of service connection for a back disability, in August 2020 and February 2021, the Board Remanded the claim. As to the claim of service connection for hypertension, in a June 2020 rating decision the regional office (RO) granted this claim. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Concerns Raised by the JMPR and Post-Remand Compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that the post-remand development substantially complied with both because it finds that the VA examinations and/or addendums obtained in October 2020, November 2020, and July 2021, when taken together, provide all needed information to adjudicate the claim taking into account the in-service and post-service complaints, diagnoses, and/or treatment for back problems. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-remand development substantially complied with the Remands because while the appeal was in Remand status all identified and available service treatment records, including from the United States Naval Hospital in Pensacola, as well as post-service VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Likewise, and as will be seen below, the below decision's continuity of symptomatology discussion, "...first establish a proper foundation for drawing inferences against a claimant from an absence of documentation," before it "weigh[s this]... claimant's lay statements against the absence of contemporary medical evidence." See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir.2006) (noting that the lack of contemporaneous medical evidence may not serve as the sole basis for discrediting a lay report). Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Service Connection Claim The Veteran contends that he slipped a disc in his back while playing basketball in service and his back pain has continued since. He also reported that his post-service work-related injury in April 2012 aggravated an already injured back. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record now shows the Veteran being diagnosed with degenerative disc disease of the lumbar spine. See, e.g., VA examination dated in June 2013. Moreover, service treatment records dated in June 1999 show the Veteran presented with low back complaints after he "[r]eceived [a] shove/push in lower back while attempting to rebound a basketball..." 2 days earlier. Additionally, the Board finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his back disability, such as pain and lost motion. See Davidson, supra. As to in service incurrence under 38 C.F.R. § 3.303(a) and the Veteran's receiving treatment for back complaints on one occasion while on active duty in June 1999, the Board notes that the June 1999 service treatment record is negative for a clinical diagnosis. Moreover, the Board notes that the earlier and subsequent service treatment records, including the earlier November 1989 and September 1995 examinations as well as the March 1999 separation examination, are otherwise negative for an injury, history, complaints, treatment for symptoms, and/or a diagnosis of a back disability. In fact, at the November 1989 and September 1995 examinations the Veteran denied having a history of arthritis and back pain and after examinations it was opined that his spine was normal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, at the March 1999 separation examination, just a few months before he was seen in June 1999 for back complaints, the Veteran denied having a history of arthritis, bone, joint, or other deformity, and recurrent back pain or any back injury and after an examination it was opined that his spine was normal. See Colvin, supra. In this regard, it is important to note that in the service treatment records it is the Veteran himself that is providing factual evidence against his own claim, strongly indicating that he himself did not believe he had a back disability while on active duty at that key time. These pieces of evidence undermines' the Veteran's contention that he has had a back disability since he was pushed in the lower back while playing basketball in June 1999; more than 20 years ago while on active duty. The evidence on this point is unusually clear to the Board. In summary, all the service treatment records, including the June 1999 treatment records where the Veteran on one occasion sought treatment for back complaints, are negative for the appellant being diagnosed with a back disability following this issue. Therefore, the Board finds, as the June 1999 treating healthcare professional must have found, that the most probative evidence of record shows that the clamant did not have a back injury which caused a chronic back disability while on active duty including while playing basketball in June 1999. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Owens, supra. In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems, weights against his current claim. Id. This finding is also supported by the Veteran's own statements in his service treatment records. The Board finds that the Veteran's statements during service are clear: He did not have a chronic back disability from the basketball injury. Next, the Board finds that the post-service record does not show the Veteran being diagnosed with arthritis in the back in the first year following his separation from service. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for a back disability. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. As to continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board will first address the concerns raised in the JMPR regarding the earlier Board decision not considering the Court's holdings in Fountain, supra, and Buchanan, supra, as they relate to "the Board ... first establish[ing] a proper foundation for drawing inferences against a claimant from an absence of documentation," before weighing the probative value of the Veteran's competent lay claims as to having observable symptomatology of a back disability in and since service versus the probative value of his service treatment records and post-service medical records. It is important to note that, in this case, there is evidence, from the Veteran himself, that he did not have a chronic back disability during service. This is not simply the "absence of documentation". The Board finds that there is highly probative evidence in this case against the Veteran's claim, including some of the Veteran's own prior statements. In this regard, the Veteran and his spouse claim, in substance, that he had had back problems since he injured his back on active duty in 1999. For example, in an April 2012 document entitled Employee's Statement of Injury Facts the Veteran stated, as to his history of earlier back problems, that he had "slipped [a] disc while playing basketball" and "since approx.1996-1999 had periods of lower back discomfort." Similarly, in correspondence received in October 2012, the Veteran notes the June 1999 in-service injury, and states that "[f]or the past 13 years, I have lived with varying degrees of back pain because, short of surgery, I believed nothing could be done. My back always feels 'tight', Sitting too long, standing too long, lying in bed for extended periods and sudden movements often causes increased discomfort." The Veteran also explained that he was cautioned against back surgery by his Department Head "because, in his opinion, there was/is no guarantee surgery would eliminate or reduce any pain." Id. Additionally, and as noted above, a June 1999 service treatment record documents the Veteran being seen for back complaints following a push/shove in the back while playing basketball. Moreover, starting in 2012 treatment records document the Veteran's complaints, diagnoses, or treatment for back pain with radiculopathy. See Naval Hospital treatment record dated in April 2012. In this regard, the Veteran described the feeling of a pinched nerve in the lower back for 4 days and reported that he had slept in a different bed causing his back to hurt on the left side; he stated the pain had moved to the lower right side with radiation down the leg. See Naval Hospital treatment record dated in April 2012. An April 2012 x-ray showed multilevel degenerative disk changes and a May 2012 magnetic resonance imaging evaluation (MRI) showed multilevel lumbar disco-vertebral disease. A May 2013 neurological consult documented inferior disc herniation at L1-2 and significant degeneration and disc bulge at L4-5; lumbar spondylosis without sciatica was diagnosed. Additionally, other medical records show the Veteran reporting that he had had a problem with chronic low back pain since he was injured on active duty over 20 years earlier. See, e.g., VA treatment records dated in April 2013 and February 2018. However, the June 1999 service treatment records does not provide the Veteran's back a clinical diagnosis, much less diagnosed him with a slipped disc as he reported in the April 2012 Employee's Statement of Injury Facts. Similarly, the Board finds it significant that all of the Veteran's other service treatment records, including the November 1989, September 1995, and March 1999 examinations, are negative for an injury, history, complaints, diagnoses, or treatment for a back disability. The Board also finds it significant that the Veteran's first post-service complaints, diagnoses, or treatment for a back disorder do not show up in the record until 2012; approximately 13 years post service. This "absence of documentation" only supports the findings in the service that the Veteran did not have a back disability related to service. It is one piece of the puzzle. It is not highly probative evidence against the claim, but it does support the denial of this claim, confirming (or supporting) the findings in service. Likewise, the Board finds it significant that these first post-service complaints, diagnoses, or treatment for a back disorder arise contemporaneous with a work-related injury the Veteran reported he sustained in 2012. See Employee's Statement of Injury Facts dated in April 2012 (the appellant reported injuring his back at work a few days earlier when he threw a heavy bag of trash onto the top of a dumpster). Again, such evidence does not support the Veteran's recollection of events. It is yet another piece of the puzzle. Furthermore, as to the post-service medical records in which the examiner recorded the Veteran's claims that he had had a problem with his back since service, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion. See LeShore v. Brown, 8 Vet. App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). The Board finds that the above facts would seem to support the findings of the treating healthcare providers in service who provided evidence against the claim, as noted above. See Owens, supra. Given the above medical history which shows the Veteran not being given a clinical diagnosis of a back disability on the one occasion he was seen for back complaints while on active duty in June 1999, the service treatment records which are otherwise negative for an injury, history, complaints, diagnoses, or treatment for a back disability, the post-service medical records which are negative for complaints, diagnoses, or treatment for a back disability from 1999 to 2012, and the documented work-related back injury in 2012, the Board finds that even when taking into account the concerns raised in the JMPR regarding its' duty to lay a foundation for its' conclusion in accordance with the Court's holdings in Fountain, supra, and Buchanan, supra, that the service treatment records and the post-service medical records are more probative as to the question of continuity than the Veteran's and his wife's lay claims to the contrary. See Owens, supra. In other words, given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative factual evidence, overall, against the claim that the Board finds more probative than the Veteran's and his wife's lay claims to the contrary. Id. The Veteran and his spouse, based on the Veteran's own prior statements and actions, are not credible when they state that the Veteran has had a back problem service. The Board cannot not ignore the significant evidence of record against this claim. Therefore, because the most probative the above evidentiary record shows that the Veteran did not have a continued problem with his back in-service and since that time, the Board finds that the criteria to establish service connection based on continuity of symptomatology have not been met despite the Veteran's one-time treatment for back complaints while on active duty in 1999 and his and his wife's lay claims of continued back problems since that time. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b). The Board also finds that the preponderance of the evidence shows that the Veteran's current back disability is not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, at the post-Remand VA examination in October 2020, November 2020, and July 2021, which were held to obtain a nexus opinion, the examiners uniformly opined that the Veteran's current back disability is not due to his military service. Moreover, the Board finds these opinions, when taken together, are the most probative evidence of record for the following reasons: they considered all of the service treatment records, included as required by the Remands, the June 1999 record in which the Veteran presented with low back complaints after he "[r]eceived shove/push in lower back while attempting to rebound a basketball..." 2 days earlier; they considered all the Veteran's post-servicer treatment records, including as required by the Remands, the records surrounding the records surrounding the appellant's back injury at work in April 2012, including the April 2012, April 2013, and February 2018 records; they considered the appellant's and his wife's competent and credible claims regarding observable symptoms, included as required by the Remands, the Veteran's reports of having back pain since service including the October 2012 correspondence where he notes the June 1999 injury and states "[f]or the past 13 years, I have lived with varying degrees of back pain because, short of surgery, I believed nothing could be done. My back always feels 'tight', Sitting too long, standing too long, laying in bed for extended periods and sudden movements often causes increased discomfort" and the October 2012 correspondence in which the appellant stated that he was cautioned against back surgery by his Department Head "because, in his opinion, there was/is no guarantee surgery would eliminate or reduce any pain;" the July 2021 opinion clarified the November 2020 addendum opinion; they were provided after a review of the record on appeal and an examination of the Veteran; the opinions are supported by medical reasoning; and/or because they are not contradicted by any other medical evidence of record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Colvin, supra. It is important for the Veteran to understand that at this point both the factual evidence and the medical evidence provides highly probative evidence against the claim that the Board cannot ignore, either of which provide a clear bases to deny this claim. In addition, the Board finds that the Veteran and his wife are not competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current back disability). See Davidson, supra. They simply do not have the medical qualifications to suggest that being pushed in the back while playing basketball over 20 years ago while on active duty is the cause of the appellant's current problem. With regard to the contention that the Veteran may have had problems with his back since being pushed in the back while playing basketball over 20 years ago, the Board must find that such contentions are simply not accurate for the reasons cited above. The Veteran and his spouse's recollection of events have been found to be faulty by the Board for the reasons cited above. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran's post-service back disability is not due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a back disability. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.