Citation Nr: 21066427 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-04 943 DATE: November 1, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that any current disability of the Veteran's lumbar spine began during active duty service or is otherwise etiologically linked to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from October 1962 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2021; a transcript of the hearing is of record. This case was previously before the Board in March 2021, when the issue now remaining in appellate status was remanded for additional development. During the processing of the March 2021 remand directives, the AOJ noted (as explained in the August 2021 supplemental statement of the case) that the Veteran did not respond to the AOJ's May 2021 letter sent as part of efforts to assist the Veteran with the development of evidence from private sources in this case. The Board observes that the Veteran has appointed a new representative following the Board's March 2021 remand. The Board also notes that the Veteran, at the January 2021 hearing, waived AOJ review of submitted evidence; that waiver applies to the medical evidence submitted by the Veteran in September 2021. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease 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; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain specifically-listed chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) and Fountain v. McDonald, 27 Vet. App. 258 (2015). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Entitlement to service connection for a lumbar spine disability is denied. The Veteran has claimed entitlement to service connection for a lumbar spine disability. The Veteran essentially contends, including as described in his January 2021 Board hearing testimony, that he injured his back in service at Fort Dix in 1962 and has had a continuous problem with his lower back since then. The evidence establishes that the Veteran has a current diagnosed back disability featuring degenerative arthritis of the lumbar spine. This fact is shown in multiple items of medical evidence, and confirmed in an August 2021 VA examination report. Therefore, the first Shedden element of entitlement to service connection has been satisfied. The Board finds that the Veteran's recent testimony suggesting that he has experienced persistent or recurrent back pain originating with an injury during service in 1962 is non-credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Recent written statements submitted in 2021 from the Veteran and from other witnesses indicate that the Veteran has discussed an in-service back injury and subsequent back pains dating back to the time of his period of service in 1962-1963. The Veteran's January 2021 testimony at his Board hearing describes an in-service back injury in 1962, a continuity of back pains thereafter, and medical treatment for the problem beginning within approximately one year following his service discharge. The Board notes that a January 2021 written statement from the Veteran's private doctor indicates that the Veteran "has a history of chronic low back pain that he describes he has had for about 50 years," which suggests the Veteran recalled onset of the back problem around 1970 or 1971. During the August 2021 VA compensation examination, the Veteran told the VA examiner that he developed back pain during service, but the earliest medical attention for a back problem the Veteran identified was "in 1970 he saw Dr. Friedman who is a back specialist." The Board notes that the Veteran's January 2021 Board hearing testimony indicated that the Veteran recalls experiencing "a continuous problem" with his back since an injury during service in 1962, which is inconsistent with the written statement from his long-term private doctor indicating that the Veteran has reported the history of his current back pain dates back to around 1970/1971. The Veteran's January 2021 Board hearing testimony also indicated that he first started receiving medical attention for back problems "after discharge," approximately "within a year or in [a] years' time." If this is understood to indicate medical treatment for back problems began proximate to active service, within a year of the 1962 injury or the 1963 separation from active service, the statement appears to be inconsistent with the Veteran's report of history to the August 2021 VA examiner in which the Veteran recounted no medical treatment for the back prior to 1970 when asked about onset and treatment of the back disability during the compensation examination. The Veteran's contemporaneous service treatment records are also inconsistent with the Veteran's assertion that he was experiencing a back disability and continuity of symptomatology following the described 1962 injury. While the Veteran has explained that he did not seek medical treatment for back problems during service, the Veteran did undergo a full physical examination and completed a medical history questionnaire in March 1963. The March 1963 examination report shows that trained medical professionals inspected the Veteran's health and found no disability of the Veteran's "Spine," which was clinically "Normal" at the time. Moreover, the Veteran's responses to the medical history questionnaire in March 1963 include no suggestion of any back problems, and the Veteran responded "No," when asked if he had "ever had any illness or injury other than those already noted." Although the Veteran's January 2021 hearing testimony indicated that during service he self-treated his continuous back problems by "go[ing] to the commissary and buy[ing] over-the-counter medications to relieve the pain," the March 1963 medical history questionnaire shows that the Veteran stated "No," he had not experienced any "painful joints," he had not experienced "arthritis," and he had -not- "treated [him]self for illnesses other than minor colds." The Veteran's statements indicating an in-service onset of his back disability are contradicted by the contemporaneous evidence of his service treatment records featuring the March 1963 examination report. This weighs against the credibility of the Veteran's assertion of in-service onset of back disability. The Veteran's statements include internal inconsistencies: his assertions in the March 1963 medical history questionnaire are contrary to his assertions in his January 2021 hearing testimony. The documentation of the Veteran's account of history recorded in the January 2021 private medical statement and the August 2021 VA examination report also suggests some details consistent with his March 1963 assertions and inconsistent with his January 2021 hearing testimony. These inconsistencies are also a factor in the assessment of credibility. The March 1963 assertions indicating no pertinent disability during service are consistent with the medical findings at that time and were made much nearer in time to the events of the Veteran's in-service health history than are the more remote recollections of that history the Veteran has presented in lay testimony during the pendency of this claim. The fact that the March 1963 evidence is more contemporaneous to the pertinent described time-period is another factor contributing to the relative reliability / credibility of the March 1963 evidence and the non-credibility of the recent contrary testimony. The March 1963 evidence includes the Veteran's statements presented to a medical professional in the context of informing a full physical assessment of the Veteran's health for the purpose of identifying medical problems arising from the Veteran's period of service. It is reasonable to expect that the Veteran's report of pertinent health history in such a context would be complete and accurate to the best of his knowledge. The Board finds that this is a factor contributing to the relative credibility of the March 1963 statement. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). This is another factor contributing to the relative reliability / credibility of the March 1963 evidence and the non-credibility of the contrary testimony. Additionally, the Board notes that the Veteran's recent testimony indicating that an in-service injury resulted in the onset of his current disability and continuity of back pain is self-serving, presented by the Veteran in the context of supporting his own claim for monetary benefits. This is an additional factor weighing against the credibility of the recent testimony. The Board finds that this change in his account is self-serving and compensation-driven; thus, it lacks credibility. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). For the aforementioned reasons, the Veteran's statements indicating that he has experienced persistent or recurrent back pain originating with an injury during service is non-credible. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (The Board is not bound to accept an uncorroborated account of the appellant's medical history but must assess the credibility and weight of the evidence provided by the appellant before rejecting it). The August 2021 VA examination report includes a probative and competent medical opinion that weighs significantly against the Veteran's claim. The VA examiner concludes: "The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury...." The VA examiner's rationale discussed that the Veteran's current degenerative arthritis "is not caused by a back disability during service," noting that the Veteran's service treatment records (including his March 1963 separation examination report) contain no indication of a back problem and that the Veteran's separation examination showed that the Veteran indicated having no pertinent disability at that time. The August 2021 VA medical opinion was authored by a medical professional competent to provide such an opinion, informed by review of the claims-file, informed by interview of the Veteran, and with the benefit of clinical examination of the Veteran; it is significantly probative evidence weighing against the Veteran's claim. The Board finds that the evidentiary record does not otherwise present any basis for a grant of the claim on appeal in this case. As discussed above, the Board finds that the Veteran's recent testimony indicating onset of back disability during service is not credible, and therefore does not present a basis for granting this claim for benefits. The Veteran's lay assertions that his lumbar spine disability is otherwise etiologically linked to his military service do not constitute competent evidence. Laypersons are competent to provide opinions establishing the etiology of a disability in some instances. However, the matter of a possible nexus between a post-service back disability and a veteran's past military service features complex medical questions beyond the scope of lay observation / common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted or identified any competent and credible evidence indicating that his lumbar spine disability may be etiologically linked to his military service. Here, other than the Veteran's assertions and lay statements discussed above, there is no indication of a relationship between a current lumbar spine disability and an in-service event, injury or disease. The evidence of record does not otherwise indicate any manner of possible nexus between the etiology of the Veteran's current lumbar spine disability and his military service. No arthritis or other manner of chronic disability is shown to have manifested in the back during service in any service treatment records, nor is arthritis or chronic disability shown for many years following service. The Board has further reviewed the Veteran's medical records, featuring private medical records he has submitted for consideration, with attention to the possibility that such records may present an indication of an etiological link between current lumbar spine disability and military service. Neither the Board's review of the evidence nor the Veteran's contentions in this case have identified any such indications in the medical evidence of record. The Board is bound to apply the laws and regulations as they apply to the case, and the Board must rely upon the competent medical evidence to resolve questions of a medical nature. In this case, the Veteran's lumbar spine disability is not shown by medical evidence to have had onset during service or within any applicable presumptive period following service. Because the competent medical evidence indicates that the Veteran's current lumbar spine disability is not etiologically linked to his service, the Board is unable to find that the criteria for an award of service connection are met in this case. The Board wishes that an outcome more favorable to the Veteran could have been reached. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disability. Hence, the benefit of the doubt doctrine does not provide a basis for a grant in this case, and the claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.