Citation Nr: 21069525 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-26 152 DATE: November 18, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include lower back pain and arthritis, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's lumbar spine disability had its onset in service or is otherwise related to service, to include arthritis being manifested within one year of service discharge. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability, to include lower back pain and arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 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 April 1975 to April 1979, with additional unverified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) while serving in the United States Navy Reserve from April 1979 to April 1983 and the Army National Guard from May 1987 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision. The Veteran was scheduled for a Board hearing before a Veterans Law Judge in November 2020, but he withdrew his hearing request in October 2020 and asked that the Board decide the matter based on the evidence of record. The Veteran has alleged that he has experienced intermittent back pain since active duty service when he reports he fell during boot camp. He reported that he could go months at a time without pain. In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, which is also characterized as degenerative changes, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for a lumbar spine disability to include lower back pain and arthritis. The reasons follow. The record shows that the Veteran experiences recurrent low back pain, and he has been diagnosed with degenerative changes in his lumbar spine. The record also shows reports of lower back pain and an assessment of a back strain while the Veteran was in service. While the Veteran has a present disability and an in-service incurrence of injury, the weight of the evidence does not support a causal relationship between the Veteran's present disability and the injury incurred in service. A December 1977 service treatment record shows that the Veteran reported experiencing back pain for the prior three days during treatment, and he was assessed with a back strain. While the Veteran's symptoms were noted simultaneously with the Veteran's reports of blood in his urine, the Veteran's back strain was noted to have no urological pathology. The Veteran also reported continued back pain during a urology appointment in November 1978. The Veteran's service treatment records make no mention of the Veteran injuring his back in a fall. Regardless, the Board concedes that there is evidence of in-service low back complaints. Following separation from service, the record does not show the Veteran had ongoing symptoms or received treatment for a lumbar spine disability for multiple decades. For example, a December 1979 private hospitalization record from when the Veteran was diagnosed with acute appendicitis, shows that when addressing the Veteran's past medical history, the examiner documented that the Veteran had "the usual childhood diseases, but no adult illnesses, injuries or operations." There is a large gap in treatment records thereafter. A January 2001 private medical record documents the Veteran complained of gross hematuria from three weeks ago. The examiner documented the Veteran denied back pain. The Veteran's past medical history was described as, "No medical problems." A January 2001 treatment record from two days later documents the complaint of hematuria with clots two times this year and once last year. The examiner again documented that the Veteran denied back pain and that the Veteran's past medical history revealed "no significant medical problems." In September 2001, the Veteran presented for the first time to VA with complaints of hematuria occurring approximately every six months for the prior 22 years. The examiner performed a review of systems and documented that the Veteran felt well, offered no complaints, denied shortness of breath, heartburn, chest discomfort, nocturia, and headaches and that, "All other systems [were] negative." On a pain assessment for routine health maintenance in November 2001, the Veteran rated his pain as a zero out of 10 and denied any new problems. The Veteran again denied being in pain during treatment in October 2006. A separate October 2006 VA treatment record from the same day shows the Veteran was seen for hematuria but had no "significant symptoms associated with other [bodily] systems." In February 2007, when performing a systems review, the examiner documented the Veteran "denie[d]" musculoskeletal problems. In July 2007, the Veteran underwent a physical examination for a Merchant Marine Certification of Fitness for Entry Level Ratings. The examination report documents that the Veteran had no history of musculoskeletal impairment including impaired range of motion or impaired balance/coordination. The Veteran was noted to be capable of the physical activities required for an entry level rating, which included climbing steep or vertical ladders; maintaining balance on a moving dock; pulling heavy objects up to 50 lbs. in weight, and distances of up to 400 feet; rapidly donning an exposure suit; stepping over doorsills of 24 inches in height; and opening or closing watertight doors that may weight up to 56 pounds. In September 2010, when the Veteran was seen by a private examiner for his hematuria, the examiner performed a review of systems at that time, and the Veteran denied back and joint pain. In December 2011, when completing a medical form for a urology appointment, under the musculoskeletal system questions, the Veteran denied a history of bone pain, muscular weakness, and muscular tenderness, both old and new symptoms. A November 2012 private record shows the examiner performed a review of systems and documented that the musculoskeletal system was negative for joint pain and myalgias. The record generally does not reflect that the Veteran was assessed with a lumbar spine disability or sought treatment for low back pain between his service discharge in 1979 until he submitted his service-connection claim in 2013. During this period of time, the Veteran sought treatment for separate medical conditions, including hematuria, and repeatedly denied musculoskeletal problems or back pain. This includes denying any old or new musculoskeletal pain 32 years after his separation from active duty in a December 2011 private medical record. The Veteran also denied a history of musculoskeletal impairment on physical examination for Merchant Marine Certification, while being found capable of performing heavy exertional activities in July 2007, 28 years after the Veteran's separation from active duty. Such findings are probative evidence against continuation of the Veteran's in-service back strain or associated symptoms for more than three decades following service discharge. This is not a situation where the record is silent for low back pain but where the Veteran denied back pain when specifically asked about it on multiple occasions between 2001 to 2010a period of almost 10 years. In November 2014, the Veteran denied back pain when the examiner performed a review of systems. He had no musculoskeletal complaints during VA treatment in January 2015. In an August 2015 VA treatment record, the examiner documented the Veteran reported experiencing lower back pain since he fell in boot camp. However, the Veteran's service treatment records make no mention of the Veteran falling during boot camp, even when he reported back pain during treatment for hematuria. In the following decades, the Veteran denied a history of musculoskeletal and/or back pain on multiple occasions. Additionally, subsequent records from August 2016 show that the Veteran was diagnosed with chronic low back pain, and the Veteran reported the onset of his symptoms to be just four to five years prior with no related injury. Inadvertent or otherwise, these inconsistences damage the Veteran's overall credibility and reduce the probative value of his lay statements. To the extent that the Veteran alleges ongoing low back symptoms in the years following service discharge, the Board finds such allegations not credible based on the multiple denials of musculoskeletal and/or back pain in the decades following service discharge. In September 2015, an MRI of the lumbosacral spine showed the Veteran to have multilevel degenerative disc disease of the thoracolumbar spine. The Veteran denied back pain in May 2016; however, he began to participate in physical therapy to address his recurrent low back symptoms. Physical therapy records in August 2016 show that the Veteran was diagnosed with chronic low back pain. The onset was noted to be four to five years earlier with no associated injury, as noted above. Private physician David Clifford, M.D., submitted multiple statements in 2017 and 2018, stating his opinion that the Veteran's back pain is almost certainly associated with his service. Dr. Clifford's rationale stated that the Veteran complained of back pain for a number of years, dating back to complaints of back pain in 1977 and 1978. Dr. Clifford then cited to treatment records beginning with the Veteran's medical imaging beginning in August 2015 that showed degenerative changes in the Veteran's spine, and his reports of back pain thereafter. However, the Board finds the opinion of Dr. Clifford to be of significantly limited probative value as it is inconsistent with the evidence of record. While citing to the Veteran's in-service records and clinical findings since 2015, Dr. Clifford provided no explanation as to how the records, 37 years apart, established a nexus to service. In doing so, Dr. Clifford overlooked evidence that the Veteran denied back pain or a history of musculoskeletal impairment repeatedly from 2001 to 2014, including in January 2001, February 2007, July 2007, September 2010, December 2011, November 2012, April 2014, and November 2014. Although Dr. Clifford stated that he reviewed physical therapy records from August 2016, he made no mention of the note that the Veteran's chronic back pain had begun only four to five years earlier with no associated injury. The Veteran underwent a VA examination for assessment of his lumbar spine disability claim in December 2017. The examiner noted the Veteran to have degenerative arthritis of the spine. The Veteran reported that his back pain originated in service and had increased through the years. After reviewing the evidence of record and peer-reviewed medical literature, the examiner stated it is less likely than not that the Veteran's current back pain was the result of the Veteran's back pain incurred during service. The examiner stated that there is limited medical evidence in the file to suggest a chronic condition that originated in service and that the Veteran's current condition is not related to service. The Board acknowledges the Veteran's representative's contention that the Board should obtain a new medical opinion, as the December 2017 examiner did not list an etiology for the Veteran's back disability and that the examiner's conclusion was based on "limited medical records being available to view" in the Veteran's claim. The Board finds the representative's argument unpersuasive. An examiner need not provide a specific etiology when determining it less likely than not that the Veteran's current condition originated in service. Additionally, the examiner's conclusion was not based on a determination that there are limited medical records; rather, the examiner stated that there was limited medical evidence in support of the Veteran's claim, which conclusion is supported by the evidence in the file, as laid out in detail above. In other words, the Board came to the same conclusion that the examiner didthat there is a lack of credible evidence showing ongoing low back symptoms in the years following service discharge. Alternatively, there is ample medical evidence that contradicts the Veteran's contentions, including that the Veteran was not treated for a back disability for more than three decades after separation from service, and denied back pain or a history of musculoskeletal impairment repeatedly from 2001 to 2014, including in January 2001, February 2007, July 2007, September 2010, December 2011, November 2012, April 2014, and November 2014. Treatment records from 2016 document that the Veteran reported his chronic back pain to begin just four to five years prior without a particular injury. The Board's findings herein are not dependent on the assessment of the December 2017 VA examiner. The opinion of the December 2017 VA examiner is probative to the extent that it is supported by the longitudinal evidence of record, which shows that the Veteran did not report recurrent pain or back problems for more than three decades after his discharge from service, while simultaneously denying pain symptoms, including back pain, on numerous occasions and being found capable of heavy physical activity. Accordingly, the Board does not find that additional development is warranted. The examiner based the opinion on a "thorough C-file review" and current peer-reviewed medical literature, whose conclusion that there is "limited medical evidence" to show a chronic back condition from service. Thus, the opinion was based on the facts that the Board finds are accurate in that after the in-service complaint, the Veteran did not have ongoing low back symptoms in the decades following service discharge. Therefore, the medical opinion is highly probative and outweighs Dr. Clifford's opinion, which failed to address relevant facts covering a period of 30 years. The preponderance of the evidence is against finding a causal relationship between the present lumbar spine disability and his active duty service. This is supported by the lack of treatment and recurrent denials of back pain and musculoskeletal problems for more than 30 years following service discharge, despite seeking medical treatment for multiple other problems. The Veteran was not diagnosed with degenerative or arthritic changes in the spine until 2015, more than 35 years after separation from service. In 2016, he stated that his chronic pain symptoms began four to five years earlier. These findings constitute evidence against an award of presumptive service connection on the basis of a chronic disease, as the preponderance of the evidence shows that arthritic/degenerative changes were not manifested to a compensable degree within one year following the Veteran's discharge from active duty. While the Veteran is competent to report symptoms that he has experienced in service and since service, he is not competent to directly link the current lumbar spine disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Regardless, as stated above, the Veteran's allegation of ongoing low back pain in the years following service discharge is not credible. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. For all the reasons discussed above, the preponderance of the evidence is against an award of service connection for a lumbar spine disability to include lower back pain and arthritis. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.