Citation Nr: 21068489 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-44 085 DATE: November 10, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability, including as due to a service-connected disability, is denied. FINDING OF FACT The record evidence shows that the Veteran's lumbosacral spine disability is not related to active service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a lumbosacral spine disability, including as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1979 to March 1982. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision. The Veteran appointed his current representative to represent him before VA by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in May 2015. In May 2021, the Board remanded, in pertinent part, the currently appealed claim to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ obtain opinions concerning the contended etiological relationship between the Veteran's current lumbosacral spine disability and active service, including as due to a service-connected disability. These opinions were obtained in July 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a lumbosacral spine disability, including as due to a service-connected disability. The Veteran essentially contends that he incurred a lumbosacral spine disability during active service and experienced continuous post-service disability. He alternatively contends that a service-connected status-post excision, pilonidal cyst, back, caused or contributed to his current lumbosacral spine disability. The record evidence does not support his assertions regarding an etiological link between a lumbosacral spine disability and active service, including as due to a service-connected disability. It shows instead that, although the Veteran complained of and sought treatment for a lumbosacral spine disability since his service separation, it is not related to active service and was not caused or aggravated by a service-connected disability. The available service treatment records show that the Veteran had a pilonidal cyst on his lower back surgically removed in April 1980. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a lumbosacral spine disability, including as due to a service-connected disability. Contrary to the Veteran's lay assertions, it shows instead that, although he complained of and sought treatment for a lumbosacral spine disability in the decades since his service separation, it is not related to active service and was not caused or aggravated by a service-connected disability. His voluminous post-service VA outpatient treatment records show ongoing complaints of and treatment for a lumbosacral spine disability. For example, on VA outpatient treatment in November 1983, the Veteran's complaints included back pain after being involved in a motor vehicle accident as a passenger in a car which hit a telephone pole. Physical examination showed no evidence of trauma. X-rays of the lumbosacral spine showed good bony alignment without fracture, disc space narrowing, or osteophyte formation. The radiologist's impression was a normal lumbosacral spine. In October 1999, the Veteran's complaints included back pain after hitting his head on the seat in front of him while riding a bus which stopped suddenly. The impressions included musculoskeletal pain. In April 2001, the Veteran complained of low back pain. Physical examination showed that he was in a wheelchair and unable to get up secondary to low back pain. X-rays showed no fracture. The assessment was low back pain. On private examination in July 2004, the Veteran's complaints included low back pain for the previous 1 2 years which was "intermittent and described as an ache onset with walking greater than 15 minutes" and radiated into the upper back. He also complained of occasional back spasms "and is unable to reach for objects." A history of back strain and muscle spasms and surgery to remove a cyst on the lumbar spine "many years ago" was noted. The diagnoses included low back pain. The Board notes that, since it previously found a VA examination dated in December 2012 to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. On VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in June 2019, the Veteran's complaints included chronic low back pain and stiffness. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history of pilonidal cyst removal from the low back was noted. He experienced flare-ups of low back pain which he rated as 10/10 on a pain scale (or the worst imaginable pain) "plus he has severe muscle spasms." He reported functional loss or impairment of the thoracolumbar spine which he described as, "He can't bend or run." Physical examination showed moderate tenderness to palpation in the mid- to lower lumbar spine, pain with weight bearing, muscle spasm and guarding severe enough to result in an abnormal gait or spinal contour, lumbar region muscles "painful to touch," hypoactive reflexes, decreased sensation throughout, positive straight leg raising bilaterally, and intervertebral disc syndrome without episodes requiring bed rest prescribed by a physician. He "shuffles with a cane for balance." X-rays showed degenerative disc disease and moderate L5-S1 facet sclerosis consistent with degenerative joint disease of the spine. There was objective evidence of pain with non-weight bearing. It was not medically appropriate to perform passive range of motion testing. The diagnoses included lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, and degenerative disc disease. The Board notes that, since it previously found a VA medical nexus opinion dated in April 2020 to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. On VA back (thoracolumbar spine) conditions DBQ in July 2021, the Veteran's complaints included "constant, achy pain in the low back" which he rated as 8/10 on a pain scale. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history of low back pain and lumbosacral spine injuries, including in a motor vehicle accident in approximately 2016, was noted. He denied experiencing flare-ups of low back pain. He experienced functional loss or functional impairment of the lumbosacral spine which he described as increased pain with lifting more than 40 pounds, prolonged standing, or getting out of the bathtub. Physical examination showed he was unable to bend forward fully, extend laterally, or laterally rotate his lumbosacral spine, pain on weight bearing, non-weight bearing, active motion, and at rest, mild tenderness to palpation at L2-L5, an antalgic gait "with the use of a cane," disturbance of locomotion, less movement than normal, 4/5 muscle strength, normal reflexes and sensation, and negative straight leg raising bilaterally. He constantly used a cane. The VA examiner opined that it was less likely than not that the Veteran's lumbosacral spine disability is related to active service, including as due to a service-connected disability. The rationale for this opinion was based on a review of the claims file. It also was based on a review of relevant medical literature. This examiner stated that the Veteran's service-connected status-post excision, pilonidal cyst, was a condition of the skin and his current lumbosacral spine disability was a condition of the bone and these conditions were unrelated to each other. This examiner also stated that the Veteran's service-connected status-post excision, ganglion cyst, left foot was "a separate and unrelated condition" to the current lumbosacral spine disability. The diagnosis was degenerative arthritis. Contrary to the Veteran's lay assertions, the record evidence shows that his current lumbosacral spine disability is not related to active service or any incident of service, including as due to a service-connected disability. It shows instead that, although he complained of and sought treatment for a lumbosacral spine disability since his service separation, it is not related to active service and was not caused or aggravated by a service-connected disability. The Board acknowledges that the Veteran had a pilonidal cyst on the lower back surgically removed in April 1980 during active service. The July 2021 VA examiner specifically found that there was no etiological link between the Veteran's service-connected status-post excision, pilonidal cyst, and the current lumbosacral spine disability. This examiner also found no etiological link between the Veteran's current lumbosacral spine disability and active service on a direct service connection basis and as due to a service-connected status-post excision, ganglion cyst, left foot. All of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a lumbosacral spine disability, including as due to a service-connected disability. In summary, the Board finds that service connection a lumbosacral spine disability, including as due to a service-connected disability, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.