Citation Nr: 21070906 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-34 311 DATE: November 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's current low back disability is not shown to be related to service, including low back injury therein. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 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 1989 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In July 2020, the Board remanded several claims for additional development. In a July 2021 letter, the Veteran was informed that the VLJ who conducted the hearing is no longer employed by the Board; that he had a right to request another Board hearing; and that if he did not respond concerning his preference regarding having another hearing within 30 days, the Board would assume that he did not want a hearing. To date, the Veteran has not responded. Consequently, the Board will proceed to issue a decision in this appeal. The Board notes that along with addressing the instant appeal for service connection for low back disability, the May 2021 supplemental statement of the case also addressed a claim for service connection for cardiovascular disability (claimed as a heart condition), finding that that claim was denied. However, an earlier May 2021 rating decision specifically addressed this claim by granting service connection for cardiovascular disability (i.e. coronary artery disease), assigning an initial 60 percent rating for the disability effective March 25, 2012 and a 100 percent rating effective April 15, 2021. Thus, as the claim for service connection for cardiovascular disability (claimed as heart condition and ultimately identified as coronary artery disease) has already been granted, it is not on appeal before the Board. The May 2021 rating decision also granted service connection for posttraumatic stress disorder and hypertension, resolving the remanded claims for an acquired psychiatric disability and hypertension. Entitlement to service connection for a low back disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The evidence shows that the Veteran has a current low back disability, diagnosed at an April 2021 VA contract examination as lumbar spine degenerative arthritis, intervertebral disc syndrome and spondylolisthesis. The service treatment records also show that the Veteran experienced some degree of back pathology in service. In this regard, a December 1990 progress note shows that the Veteran complained of low back pain for the past 4 days. Physical examination showed tenderness around L4-5, which increased with forward bending, the diagnosis was low back pain and the Veteran was prescribed a short period of limited duty. Also, while not documented in the service treatment records, the Veteran has reported that he injured his back in a fall that occurred during a SCUD missile attack while he was stationed in Dharan, Saudi Arabia in 1991. Notably, research from the VA Records Research Center has verified the occurrence of this SCUD missile attack on February 25, 1991 and it is feasible that an injury such as described by the Veteran occurring during such an emergency situation may not have been documented in the service treatment records. Consequently, resolving reasonable doubt in the Veteran's favor, the Board will concede that the Veteran sustained some level of injury to his back during the SCUD missile attack. However, at his August 1992 separation examination, the Veteran's spine was found to be normal and on his August 1992 report of medical history at separation, the Veteran reported no current or prior recurrent low back pain. Thus, it appears that any low back symptomology resolved by the Veteran's separation from service. Regarding whether the Veteran's current low back disability is related to the injury/pathology shown during service, there is conflicting medical evidence of record. In an April 2020 opinion, a VA advanced practical registered nurse (APRN) noted that by the age of 39, the Veteran had degenerative disc disease (DDD) of the lumbar spine evidenced by lumbar spine osteophyte formation at multiple levels and narrowing of the L5-S1 interspace. In the APRN's opinion, the Veteran's back problems appeared at such an early age, they were as likely as not due to military service. The APRN noted that she did not review the Veteran's service treatment records but did look at his VA medical records and considered the Veteran's reporting. On the other hand, at a December 2013 VA low back examination, the Veteran reported injuring his back during the SCUD missile attack and being treated with bed rest but also reported no treatment after that until 1993 when he started with private chiropractic care. The examiner opined that the Veteran's back condition was less likely than not related to service, noting that the discharge physical showed that the Veteran was in good health and did not report any back issues, and that no chronic progressive back complaints were noted until after service. Also, at an April 2021 VA contract examination, the examining nurse practitioner found that the Veteran's current low back disability was a disease with a clear, specific etiology and diagnosis and was less likely than not due to the Veteran's service, including in Southwest Asia. Rather, the examiner found that the degenerative disc disease (DDD) was likely due to normal wear and tear and aging and per research, could also have a genetic component. The examiner indicated that while nearly everyone eventually gets DDD with age, there are some factors that can make it more likely to develop sooner and/or become symptomatic. The examiner noted that as a person ages, their discs change, their bones can be affected, and they can develop pain. The examiner also indicated that it even helps to think of DDD as a cause and effect process or cascade. One anatomical degenerative change occurs, which leads to more degeneration and changes in the spine's structures. These changes combine to cause degenerative disc disease and its symptoms. The Board notes that the April 2020 ARNP opinion is supported by a limited rationale, simply indicating that because the Veteran's DDD became manifest at an early age, it is as likely as not related to service. In contrast, the VA contract nurse practitioner's opinion includes a more detailed rationale with consideration of multiple factors, including genetics, normal wear and tear and aging. Also, the VA contract examiner noted review of the entire claims file, along with the examination findings and reporting of the Veteran whereas the ARNP noted review of only the VA treatment records along with the reporting of the Veteran. In addition, the earlier December 2013 VA examiner's opinion was also supported by a reasoned rationale; that chronic low back disability was not shown during service and that no chronic progressive low back complaints were noted until after service. Therefore, given the more detailed review and rationale provided by the April 2021 VA contract examiner combined with the concurring opinion of the December 2013 VA examiner, the weight of the medical evidence is against a finding that the Veteran's current low back disability is related his military service, including his service in Southwest Asia. At the February 2020 Board hearing, the Veteran testified that he had continued to have low back problems ever since the low back injury he suffered during the SCUD missile attack occurring in February 1991. See Hearing Transcript, page 12. In this regard, he reported that after returning from Southwest Asia for the last 8 months of service, he did not have to go to formations or do any form of physical exercise due to his back problems. Hearing Transcript, page 12-13. Also, when seen by medical personnel for back pain post-service, as early as 2010, the Veteran reported that his back problems had begun in service (See e.g. January 2010 VA physical medicine consult where Veteran reported chronic back pain with inciting injury during SCUD missile attack) and in a July 2020 statement, a friend and fellow service member indicated that the Veteran's back had caused him problems ever since the SCUD missile attack. However, the Board presumes that had the Veteran been experiencing back pain ever since the SCUD missile attack, which resulted in him having extremely light duty during the last 8 months of military service, he would have reported this history of recurrent back pain on his August 1992 report of medical history at separation, just as he reported a history of other medical problems (e.g. ear, nose and throat trouble, sinusitis, hay fever). Thus, given that the Veteran reported no history of recurrent low back pain when specifically asked about it on this report contemporaneous to his separation from service, the Board does not find persuasive his much later reporting that he continued to have low back problems from the time of injury during the SCUD missile attack up until the present. Similarly, the Board is unable to credit the report of this continuity made by the Veteran's friend as it conflicts with the Veteran's own much more contemporaneous reporting made on the medical history report. To the extent that the Veteran is alleging that his current low back disability is otherwise related to service (i.e. not based on the presence of chronic low back disability in service and continuity of low back disability thereafter), as a layperson with no demonstrated medical expertise concerning the etiology of low back disability, this assertion may not be afforded more than minimal probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran also appeared to testify at the February 2020 hearing that he developed arthritis in his back sometime during his 20s. See Hearing Transcript, page 14. However, there is no medical evidence to suggest that there was any low back arthritis manifest to a compensable degree within one year from separation, nor has the Veteran specifically alleged that this was the case. (Continued on the next page) In sum, as a chronic low back disability was not shown during service, arthritis to a compensable degree was not shown during the first post-service year and the weight of the competent, the most probative evidence is against a finding that the Veteran's current low back disability is otherwise related to service, including his service in Southwest Asia. There is also no indication of any chronic low back disability resulting from an undiagnosed illness or medically unexplained multi-symptom illness so as to warrant presumptive service connection based on the Veteran's Southwest Asia service. 38 C.F.R. § 3.317. Accordingly, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 3.102, 3.307, 3.309; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.