Citation Nr: 21067575 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-56 254A DATE: November 4, 2021 ORDER Service connection for a back disability is denied. FINDING OF FACT There is no competent evidence that the Veteran's back pain or other back-related symptoms have resulted in functional impairment in earning capacity. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2010 to April 2016. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for mid back pain. The Veteran's notice of disagreement was received in August 2016. The RO issued a statement of the case in September 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2017. In November 2019, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court vacated the Board's November 2019 decision and remanded the matter pursuant to an August 2020 Joint Motion for Remand (JMR). In February 2021 the Board remanded the case to the RO for further development and adjudicative action. Entitlement to service connection for a back disability. The Veteran asserts that his back disability began while serving on active duty. Specifically, he asserts his back was injured as a result of some heavy lifting in 2013. The Veteran further asserts that his back pain became worse in 2015 and has continued since that time. See May 2016 VA Back (Thoracolumbar Spine) Examination Report. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). After the evidence is 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 issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Here, the preponderance of the evidence of record establishes the Veteran does not have a current back disability resulting in functional impairment in earning capacity. Accordingly, service connection is not warranted. Service treatment records indicate that in January 2011 the Veteran was seen at a primary care clinic complaining of mid-back and rib pain after falling onto the left side of his back while snowboarding. Tenderness on palpation and a muscle spasm were noted on the left side of his back in the sixth and seventh rib region. X-rays were negative. He was assessed with mid-back pain and a contusion. The Veteran claims his current back pain is caused by an undocumented lifting injury sustained in 2013 and a re-aggravation in 2015. The Veteran denied recurrent back pain in an October 2011 Report of Medical History. He also denied any recurrent back pain in two Reports of Medical History in 2013, one in September and the other without a given month. The Veteran reported no back pain during appointments in April and May 2014. He complained of low back pain that wakes him up at night at a September 2014 annual flight physical. Back pain was noted again during an October 2014 appointment for unrelated shoulder pain. He reported recurrent back pain in an October 2015 Report of Medical History. At separation the Veteran's spine was evaluated as normal on the May 2016 Report of Medical Examination, but the Veteran noted recurrent lower/mid back pain in the accompanying Report of Medical History. In May 2016, the Veteran was afforded a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) examination by a VA contract examiner. The Veteran stated that he had hurt his back in 2013 doing heavy lifting, that the pain became worse in 2015, and that he did not seek treatment during his service. A 2015 spine injury was noted as resolved. The Veteran reported that his back pain "comes and goes", that it was at worst a 5 out of 10 during flareups, and that he had not had any back pain in the four weeks preceding the examination. All initial range of motion measurements were normal and without pain. The Veteran was able to do three repetitions of range of motion testing without functional loss. There was no objective evidence of localized tenderness or pain on palpation of the back and no guarding or muscle spasms were noted. Pain, weakness, fatigability, or incoordination were not found to limit functional ability with repeated use over time and were also not found to limit functional ability with flareups. The examiner found that the Veteran's back pain did not impact his ability to work. The examiner concluded that there was no objective evidence to warrant a diagnosis of any back disability. There are two relevant post-service medical records. In a May 2016 appointment immediately after discharge, lumbago was noted as a stable past medical condition. See May 2016 Care Note. At an April 2018 checkup, the Veteran complained of chronic back pain. See April 2018 Primary Care Note. He described his pain as a dull ache rated at a 4 out of 10, and the treating physician noted that the back pain was well controlled with conservative management. Id. In the May 2021 VA examination, the Veteran reported experiencing moderate sharp pain, for which there was no relief, 5-6 times a month, lasting for a day, precipitated by laying down. The Veteran did not report any functional loss or functional impairment even during flare-ups or after repeated use. The examiner found the Veteran only had subjective pain on the exam, as all range of motion was recorded as normal, and therefore rendered no diagnosis finding that the Veteran's pain did not result in any functional impairment of earning capacity. In this case, the May 2016 and May 2021 VA medical opinions that found the Veteran does not have a current back diagnosis resulting in functional impairment are highly probative medical evidence on this point. The examiners gave their opinion after a thorough back and spine examination and a complete review of the claims file and relevant medical records. The examiners also noted the Veteran's pertinent history and lay statements. In addition, the examination results are highly probative as they showed a normal back less than a month after the Veteran's discharge from service. The Veteran's statements that he has back pain have been considered as the Veteran is competent to provide evidence of that which he experiences, including his observable symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, such as his claimed in-service lifting injury and his back pain, to the extent the lay evidence supports finding a current back disability due to disease or injury, the evidence of record does not support a finding of functional impairment in earning capacity as a result of that back pain. This finding is supported by the objective normal findings established by a skilled neutral professional at the May 2016 and May 2021VA examinations. Furthermore, while the Veteran reports increased back pain during flare-ups, he has not asserted, and the record does not otherwise show, that his flare-ups result in any functional impairment of earning capacity. Although post-service VA treatment records indicate the Veteran has intermittent back pain, the treatment records do not contradict the May 2016 and May 2021 examiners' findings. The treatment records do not show any underlying pathology or diagnosis, and merely recite the Veteran's lay statements regarding intermittent back pain. The treatment records are of little probative value on the issue of establishing the presence of a current back disability due to disease or injury and are afforded less probative weight than the VA examination report. Accordingly, the preponderance of the evidence weighs against finding that the Veteran currently has a back disability resulting in functional impairment in earning capacity. The Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability" and held that "pain alone can service as a functional impairment and therefore qualify as a disability." Saunders, 886 F.3d at 1364. In other words, lack of a diagnosed disability no longer automatically precludes service connection if the Veteran's pain results in functional impairment. Here, there is no indication in the record that the Veteran's pain causes functional impairment of earning capacity. While his reports of pain are credible, he has not indicated, nor does the evidence show that his mobility is impaired or that his intermittent pain results in a disabling condition that would equate to functional impairment in earning capacity, even during his reported flare-ups. Notably, the record shows that the Veteran has a past history of lumbago. According to Dorland's Medical Dictionary, "lumbago" is defined as a nonmedical term for any pain in the lower back. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1076 (32nd ed. 2012). Without any evidence of arthritis, disc space narrowing, stenosis, et al., it is not unreasonable to consider that the Veteran's intermittent low back pain could be due to acute muscle tightness, for example. While any suggested medical diagnosis by the Board is prohibited, and while no inferences will be made in that regard, it is worth noting that acute muscle tightness and other causes of back pain can be non-disabling. Muscle tightness is but one example of the type of back pain that can come and go, can be temporarily alleviated with stretching, and which does not necessarily result in functional impairment of earning capacity. Based on the examiners' findings (or a lack thereof), a review of the outpatient treatment records, STRs, and lay statements, there is no basis upon which to find a current low back disability that results in functional impairment of earning capacity. Based on the Veteran's lay statements as to the frequency and severity of his back pain, as well as the competent findings on two separate examination reports, the Veteran's overall disability picture does not support a finding of a disabling back disability because the overall record does not demonstrate that there is any functional impairment of earning capacity as a result of the Veteran's credible reports of back pain. The examiners were specifically aware of the Veteran's medical history and his lay statements, and nevertheless concluded that the Veteran did not have a diagnosable back disability, despite his reports of intermittent back pain. Neither did the examiners suggest that any imaging should be undertaken; and the outpatient treatment records similarly contain no such evidence, suggesting that the Veteran's back pain is neither severe enough nor frequent enough to warrant such testing. This is consistent with a finding of no functional impairment of earning capacity is warranted. (Continued on the next page) As such, the Veteran has not met the regulatory requirements to establish service connection for a back disability under any theory of entitlement and service connection must be denied. 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, the doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 2.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, Associate 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.