Citation Nr: 21069502 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-18 398 DATE: November 18, 2021 ORDER Entitlement to service connection for back injury is denied. FINDING OF FACT The Veteran's back injury was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a back injury are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in an August 2019 decision, the Board denied the Veteran's claim. The Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded the Board's August 2019 decision. In December 2020 and May 2021, the Board remanded the matter to the RO for further development. The matter has now come back before the Board for final adjudication. 1. Entitlement to service connection for back injury The Veteran contends that his current back condition is a result of his in-service back injuries. He seeks service connection for this condition. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes the Veteran has met the first element of service connection as he has a diagnosis of grade I retrolisthesis of L2 and L3 vertebral body and mild scoliosis at L2-L3. In addition, the evidence establishes that he injured his back during service and, therefore, the second element has been established. The only question before the Board is whether a causal relationship between his current disability and his in-service back injury exists. Here, the preponderance of the evidence is against a finding that his back injury began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). During service, the Veteran sought treatment for a back injury in February 1967. Here, the Veteran was diagnosed with a muscle spasm. See February 1967 Service Treatment Record. The Veteran sought treatment again after hurting his back while lifting a hot water heater in April 1968. The Veteran's area of pain was noted at L5 to S1. He was diagnosed with a muscle strain. See April 1968 Service Treatment Record. In September 1968, the Veteran underwent a separation examination. Here, he denied recurrent back pain and the examiner noted that his spine was normal. See September 1968 Report of Medical Examination, September 1968 Report of Medical History. The Veteran underwent his first VA examination for his back in May 2014. Here, the examiner noted the Veteran suffered from grade I retrolisthesis of L2 and L3 vertebral body and mild scoliosis at L2-L3. The examiner opined that his condition was less likely than not incurred in or caused by his service. The examiner noted that the Veteran's service treatment records (STRs) did contain a diagnosis of lumbar muscle strain in 1968 which resolved. The separation examination, the Veteran did not claim he suffered from recurrent back pain. The x-rays taken in connection with this VA examination establish that his current back injury was caused by his active lifestyle and work history after service. See May 2014 VA Back Conditions Disability Benefits Questionnaire (DBQ), May 2014 VA Medical Opinion DBQ. In July 2014, the Veteran's private physician submitted a private medical opinion. The Veteran's private physician, Dr. L.G., was his doctor in the late 1980s and early 1990s. Dr. L.G. stated that the Veteran's chief complaint was chronic and persistent low back and neck pain. He stated that his symptoms started following injuries while on active duty in 1967 and 1968 which never abated. When the Veteran sought treatment from Dr. L.G., the Veteran suffered from grade I retrolisthesis and scoliosis of the lumbar spine. After treatment, and due to the severity of the Veteran's condition, his improvement was marginal. Dr. L.G. opines that further treatment would not be of value to the Veteran. Dr. L.G. has since retired, and acknowledged that all treatment notes are no longer available. See July 2014 Private Medical Emergency Data Systems Medical Opinion. In July 2014, the Veteran's friend, B.D., submitted a lay statement on his behalf. Here, B.D. stated that he has known the Veteran for over 50 years. B.D. stated that when talking with the Veteran, he has complained about his back pain that was a result of his service. B.D. noted that his back pain has worsened over the years and affects his quality of life and his social life. See July 2014 B.D. Lay Statement in Support of Claim. In August 2014, the Veteran's chiropractor submitted a medical opinion on the Veteran's behalf. Here, Dr. R.V. stated that he treated the Veteran 15 times between October 23, 2006 and December 13, 2009. The Veteran's initial complaints included chronic neck, low back, and left shoulder pain. Dr. R.V. treated the Veteran for multiple cervical and pelvic subluxations. See August 2014 Private Visone Holistic Healing Medical Opinion. The Veteran's spouse, S.S., submitted a lay statement in support of the Veteran's claim in January 2016. Here, S.S. stated that the Veteran injured his back, per his medical records, during service. The Veteran endured pain throughout the years and has worsened with age. S.S. states she went with him to doctors and chiropractors throughout the years and the Veteran was told that further treatment would be of no value. The Veteran is unable to sit of long periods of time, cannot walk long distances, cannot lift anything that strains his back, and unable to maintain the upkeep of the house. In accordance with the prior Board remand directives, a VA medical opinion was completed in August 2021. Here, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by his active duty. The examiner supported the opinion based on the record. Specifically, the examiner found that the Veteran's condition did not have its onset in service even though there is evidence of a back injury in 1967 and 1968 during the Veteran's active duty. The Veteran sought treatment for a back injury in both 1967 and 1968. In 1967, the Veteran was diagnosed with a muscle spasm. No subsequent treatment or complaints were made. Therefore, this injury had resolved. Then, in 1968, the Veteran was diagnosed with a muscle strain and was prescribed a conservative treatment. The strain fully resolved, and the Veteran returned to full duty without restrictions. During the Veteran's separation examination, the Veteran denied recurrent back pain and the examiner noted the Veteran's spine as normal with no abnormality. The examiner noted that the Veteran's current back condition was diagnosed in 2014 and not during his active duty. The examiner continued that the Veteran's back condition did not manifest within one year of his discharge from service. The examiner noted that the Veteran's condition was not diagnosed until 2014 when the Veteran underwent imaging. Medical treatment records after service remain silent for any injury, complaint of back symptoms, or treatment for chronic back condition until 2014. The examiner noted that the Veteran did not seek physical therapy for his condition until 2017. Furthermore, the examiner opined the Veteran's back condition was not otherwise related to the Veteran's service, to include the February 1967 muscle spasm and April 1968 muscle strain. The Veteran's current back condition is back pain caused by worn-down vertebral discs and occurs with the process of aging. Based on medical literature, the examiner stated that an acute muscle strain involves the soft tissues of the back and does not involve the boney structure of the back. As such, the examiner found that the in-service injuries involved the soft tissue could not have caused the degeneration of the Veteran's current back condition. Moreover, the acute muscle strain during service was located at L5-S1, a different location than his current back condition, which is located at L1-L2. See August 2021 VA Medical Opinion DBQ. In addition, the examiner noted that the medical opinion from Dr. L.G. was based on his memory without treatment notes available due to his previous retirement. While Dr. L.G. stated that the Veteran sought treatment for grade 14 retrolisthesis L1-L2, the evidence does not support this diagnosis until 2014 when imaging was completed. It is noted that Dr. L.G.'s statement is based on his memory from 30 plus years. See id. The Board notes that all information, including and lay and medical evidence of record, are reviewed and considered. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. 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. Caluza, 7 Vet. App. at 511. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a back injury. The Board acknowledges the medical opinions provided by the Veteran's private doctors R.V. and L.G. The Board finds the August 2021 VA medical opinion of more probative value. Specifically, the private medical opinions are based solely on the Veteran's statements regarding his in-service injury. In addition, the VA medical opinion is based on the totality of the evidence in the record, whereas the private medical opinions are based on the examiner's memory. Dr. L.G. retired prior to the July 2014 private medical opinion. He stated that all medical treatment records were unavailable as he retired and, therefore, the private medical opinion was based solely on the Veteran's statements and Dr. L.G.'s memory. Dr. R.V.'s medical opinion was focused on the Veteran's neck pain, right hip, and left shoulder pain. Dr. R.V. merely noted that the Veteran made complaints of low back pain. As such, the Board finds the August 2021 VA medical opinion to be of more probative value, as the examiner reviewed and considered the entire claims file and all available medical records. The Board notes that the Veteran first sought treatment from Dr. L.G. for his back in the late 1980s per the July 2014 private medical opinion. The Board notes this was several decades following discharge from service. While the August 2021 VA examiner noted that the Veteran was not diagnosed with his current back condition until 2014, the Board finds that even if the Veteran was first diagnosed with his current back condition by Dr. L.G., his diagnosis would have been about 20 years after discharge from service. The Board also notes that this treatment was the first time the Veteran reported he sought treatment for his back injury, which was several decades after discharge from service. The Board finds that the time between his in-service injuries and treatment for his back condition is significant. He last reported back pain in April 1968, and he was discharged in January 1969. Even considering the treatment sought in the late 1980s, the Veteran did not seek treatment until about 20 years after his in-service complaint of back pain. Based on all of the above, the Board finds the August 2021 VA medical opinion is of more probative value, as it is a complete medical opinion with a fully supported rationale. The Veteran and lay witnesses are competent to report that the Veteran experienced back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the questions of whether there is a current diagnosis and whether such diagnosis is etiologically related to service are outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran, S.S., and B.D. are not shown to have the training or credentials to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board accords significantly greater probative value to the opinion rendered by the VA examiner. Absent the existence of a chronic, identifiable back condition in service, or a relationship between the Veteran's current back disability and service, the Veteran does not meet the criteria for service connection on a direct basis. Accordingly, service connection is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that 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 v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.