Citation Nr: 21070289 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-00 083 DATE: November 23, 2021 ORDER Service connection for a back disability is denied. FINDING OF FACT It is less likely than not (less that 50 percent probability) the Veteran's current back disability occurred during or was otherwise related to her active service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1983 to December 1983. She also served in the Army Reserve from April 1983 to April 1989. She is seeking service connection for a back disability, which she believes resulted from her service. A Board hearing was conducted in March 2017. In September 2019, the Board notified the Veteran that the Veterans Law Judge presided the hearing had since retired from the Board, and that she may requested another optional Board hearing. In October 2019, the Veteran indicated that she wanted another Board hearing. However, in August 2020, she submitted a written request waiving any Board hearing. Accordingly, the Board will proceed its adjudication without an additional Board hearing. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At her Board hearing in March 2017, and in several other writing statements (for example, her initial claim dated November 2010, Notice of Disagreement dated January 2013, Correspondence dated July 2018), the Veteran reported that she started experiencing back pain during service due to constant physical training, including long foot marches carrying heavy gear and weapons. She reported that her military supervisor told her to "suck it up" so she did not seek treatment for her back pain during service. She reported at the Board hearing that she started seeking treatment for her back condition in 2008 and seeing a chiropractor in 1997. Service treatment records (STRs) show that the Veteran had normal spine condition at her enlistment physical in March 1983. She had another physical examination in September 1984 showing normal spine condition, although a chest x-ray in September 1984 revealed mild dextroscoliosis of the thoracic spine. She denied recurrent back pain in her report of medical history in September 1984, but reported cramps in legs. She had another physical examination in March 1988 showing normal spine condition, and she denied recurrent back pain in her report of medical history in March 1988 but reported ENT trouble, asthma, and shortness of breath. It is noted that the Veteran was only on active duty from August 1983 to December 1983, before serving in the reserves. Private treatment records show that the Veteran started physical therapy for her back pain in March 2008. Records from SHARP Coronado Hospital in July 2008 showed that the Veteran complained of low back pain that radiated down to her legs with onset of January 2008, and she was diagnosed with lumbosacral strain. An MRI in August 2018 revealed degenerative change most significant at L5-S1 where probably right S1 nerve root impingement was present, and she was diagnosed with sciatica. In September 2008, she underwent a neurosurgical consolation at NMC, at that time she reported experiencing problems since January with right leg pain. The neurosurgeon found that she had a L5-S1 disc protrusion and L5-S1 radiculopathy and a right sided L5-S1 microdiscectomy was recommended. The Veteran underwent the back surgery in October 2008. Medical records do not saw any treatment for back condition prior to 2008. A private Disability Benefit Questionnaire (DBQ) dated December 2013 indicated that the Veteran was diagnosed with L5-S1 Disc herniation, spinal stenosis, and S1 radiculopathy in August 2008. The Veteran reported intermittent back pain during 1984 to 1985 with training exercises and carrying military gear, and she stated that her symptoms worsened during 2007 to 2008, leading to surgery on her lumbar spine in October 2008. The physician indicated that because of pre-existing service related injury, her back condition had been aggravated. However, there was no explanation of what was meant by pre-existing service related injury, and the Veteran was not on active duty in 1985; and there was no explanation how the condition was aggravated or what the underlying condition was. The Veteran submitted private opinions dated December 2015, March 2017 and June 2018 which indicate that based on the Veteran's report and certain post-service treatment records, her back pain is likely related to her military duty. However, it appears that Veteran's STRs have not been reviewed by the medical professional providing these opinions. The Veteran submitted another private opinion dated August 2020. The physician stated that after review of the case file, to include the medical records, service history, lay statement and medical literature, it was at least as likely as not (50 percent or more probability) that the Veteran's current low back disorder was related to her service. The physician provided the flowing rationale: - Enlistment records are silent for back problems, the Veteran is presumed sound upon enlistment. - STRs do not document back problems, however, there are numerous lay statements by the Veteran describing onset of back pain with military physical training. - Post-military records within one year of discharge demonstrate a pattern of chronicity of back disability. Chest x-ray in September 1984 noted mild dextroscoliosis of the thoracic spine. ...Given it was not noted on further military examination, the scoliosis was more likely than not acute by definition. The acute onset of lumbar lateral shift, otherwise known as a list or acute scoliosis, is a common clinical observation associated with low back pain. Therefore, the presence of acute scoliosis on imaging supports the Veteran's claim that she developed back pain in service which persisted since then. - Post-military records demonstrate a pattern of chronicity and progression of the Veteran's back disability. Veteran testified that she began getting treatment for her back in 1997. Private medical treatment records from 2008 are remarkable for back problems. The Board obtained a VHA specialist opinion dated September 2018. A VA neurosurgeon reviewed the claims file and opined that it was less likely than not (less than 50 percent probability) that the Veteran's current low back disorder was related to her service. The neurosurgeon provided the following rationale: - The Veteran did not report any significant injury or specific episodes of intense back pain. There is also a time lapse between the ending of her service and starting to complain of back pain requiring therapy. She did state that during her service there was a culture where if you were in pain you had to tolerate it. This may be true but there is still no clear description of the nature of her pain she had, how long it lasted or any specific aggravating activity. There is no clear description of ongoing pain in the few years following her discharge. She did say that in the late 1990s she had chiropractic therapy but based on the records, it did not appear that this was an ongoing problem. - Patients with scoliosis may develop progressive back pain related to progression of the scoliosis and that would reflect on the biomechanics of the spine and can lead to degenerative changes and pain. The degree of progression is dependent on the severity of the scoliosis and in most cases where that is mild scoliosis it has minimal long time impact.... There is no mention of the scoliosis on any of her images performed after the initial chest x-ray. It would be helpful to see the degree of scoliosis she initially had and whether or not it progressed with time. If there is no clear scoliosis and no progression, then this may not have any clinical bearings. With regard to the Veteran's statements that she started experiencing back pain during service and continued to experience it since service, her report is inconsistent with the medical records. STRs did not show any complaints of or treatment for any back problems, and she repeatedly denied recurrent back pain in September 1984 and March 1988. While the Veteran reported that the reason she did not seek treatment for her back pain during service was due to the military culture of discouraging reporting medical issues or seeking medical treatment, it appears she had no problem reporting cramps in legs in September 1984 and ENT trouble, asthma, shortness of breath in March 1988, and on both occasions she denied back pain. As such, the Board gives more weight to the Veteran's cotemporaneous reports in STRs than her later statements after she filed service connection claim in November 2010. Additionally, private treatment records showed that the Veteran started physical therapy for her back pain in March 2008. This is the earliest treatment records of her back problems available in her claims file, which is approximately 25 years after she separated from active duty service and approximately 19 years after she separated from her reserve service. While she reported seeing a chiropractor in 1997, there was no medical record for any back condition dated earlier than 2008. A letter from her private medical provider (SHARP Rees-Stealy Medical Centers) dated August 2011 show that no medical records dated from January 1997 to December 2001 were available. Records from SHARP Rees-Stealy Medical Centers show that the Veteran started initial physical therapy to treat lumbosacral sprain in March 2008. Records from SHARP Coronado Hospital in July 2008 showed that the Veteran complained of low back pain which radiated down to her legs with onset of January 2008. In a September 2008 Neurosurgical Consultation with NMC, the Veteran reported that she had problems since January with right leg pain, and she underwent a MRI of her lumbar spine in August 2008 which showed findings consistent with L5-S1 disc protrusion. She also reported had right knee surgery in 1999 and left knee surgery in 1997. As such, the early post-service treatment records do not document chronic back problem since service, rather, these records indicate that the onset of her back problem was around January 2008. After considering the medical records, including STRs, as well as the Veteran's lay statement (including her report of medical history documented in the treatment records), the Board finds that the weight of evidence does not support a finding that the Veteran has a chronic back problem that started in service and continued since then. With regard to private opinions dated December 2015, March 2017 and June 2018 and the opinion contained in the December 2013 private DBQ, it appeared that they are heavily relied upon the Veteran's report that she had chronic back pain since service, without comprehensive review of her medical records, to include STRs. Additionally, the private opinions made no distinction between active duty service and reserve service which present significant legal difference in VA law. Moreover, there is no accounting for the Veteran's contemporaneous denials of back problems. As such, the private opinions are given little probative value. With regard to the September 2018 VHA opinion and the August 2020 private opinion, they are both based on comprehensive review of the Veteran's claims file to include STRs, and both acknowledge that scoliosis may cause back pain, but they reach different conclusions. The Board finds that the September 2018 VHA opinion is more supported by the evidence of the record. The August 2020 private opinion stated that the September 1984 chest x-ray showing mild dextroscoliosis of the thoracic spine (more likely an acute scoliosis) supported the Veteran's report that she developed back pain in service which persisted since then. However, the September 1984 chest x-ray noted mild dextroscoliosis in the thoracic spine, not in the lumbar spine, and the Veteran's current back problems occurred in the lumbar spine (L5-S1 disc protrusion and L5-S1 radiculopathy as shown by the August 2008 MRI and September 2008 neurosurgical consultation). In addition, as discussed above, the private treatment records in 2008 show that the Veteran's back conditions with radiculopathy in her legs reportedly had the onset in January 2008, not dating back in service. Conversely, the September 2018 VHA opinion is more consistent with the evidence of the record and provides a more convincing rationale. The VA specialist explained that patients with scoliosis may develop progressive back pain related to progression of the scoliosis which could lead to degenerative changes and pain, however, that the degree of progression is dependent on the severity of the scoliosis, and in most cases where there is mild scoliosis, it has minimal long time impact. The VA specialist pointed out that if there was no clear progression of scoliosis, then the chest x-ray in 1984 may not have any clinical bearings on the etiology of the Veteran's current back disorder. The VA specialist noted that there was no mention of the scoliosis on any of her images performed after the initial chest x-ray in 1984. This is consistent with private treatment records. For example, an MRI in August 2018 revealed degenerative changes at L5-S1 with right S1 nerve root impingement. The September 2008 neurosurgical consolation diagnosed her with a L5-S1 disc protrusion and L5-S1 radiculopathy. X-ray of lumbar spine in March 2018 showed mild anterolisthesis of L4 on L5 measuring approximately 3 mm and scattered mild degenerative disc and facet changes. These post service medical records do not show any diagnoses or progression of scoliosis of the thoracic spine which was revealed by the 1984 chest x-ray. Accordingly, the Board gives more probative value to the September 2018 VHA opinion. When this is done, the weight of evidence tilts against the claim. (Continued on the next page) While the Veteran believes her current back condition is the result of her military service, she lacks the medical training or expertise to address a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, service connection for a back disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.