Citation Nr: 21071653 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-27 891 DATE: December 1, 2021 ORDER Entitlement to service connection for a spinal cord injury, claimed as back condition, is denied. FINDINGS OF FACT 1. A preponderance of the evidence of record is against a finding that the Veteran has a back condition that had its onset in service or is otherwise related to a disease or injury during military service. 2. A back condition was not manifest to a compensable degree within one year of separation from active duty and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a spinal cord injury, claimed as back condition, have not been met. 38 U.S.C. §§ 101, 106, 1110, 1112, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.307, 3.310, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1976 to December 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge in a September 2018 Board videoconference hearing. A copy of the transcript is part of the claims file and evidence of record. The matter was remanded in May 2019 to "[o]btain VA treatment records...obtain a VA examination with medical opinion to address the claim for disability for the lower back." See May 2019 BVA Decision. The matter was remanded again in June 2021 "as the Veteran's secondary theory of service connection must be addressed." See June 2021 BVA Decision. The matter is returned to the Board for further consideration. 1. Entitlement to service connection for a spinal cord injury, claimed as back condition. The Veteran contends that his low back condition is the result of an injury while falsely imprisoned by the German authorities. See March 2005 Third Party Correspondence. The Veteran also contends that his low back condition is the result of his homelessness experience in1985. See September 2018 Board videoconference hearing transcript. Finally, the Veteran contends that he injured his back during a slip and fall on stairs covered in ice and snow in February 1978. See March 2019 VA Form 21-0781a, Statement in Support of claim for Service Connection for PTSD Secondary to Personal Assault, January 2020 VA Nursing Outpatient Note, and December 2020 VA Back (Spine) Conditions examination report. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott, supra. VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by October 2010 VA VCAA / DTA Letter. See also May 2013 VA Rating Decision Narrative, March 2015 Statement of the Case, May 2019 BVA Decision, January 2021 Supplemental Statement of the Case (SSOC), February 2021 SSOC, June 2021 BVA Decision, and July 2021 SSOC. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, service treatment records and VA treatment records were obtained and associated with the claims file and evidence of record. The Veteran has not identified any additional, outstanding records relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See November 2010 Veteran VCAA Notice Acknowledgement ("I have enclosed all the remaining information or evidence that will support my claim, or I have no other information or evidence to give VA to support my claim. Please decide my claim as soon as possible."). Further, the entire record was available to the December 2020 and July 2021 medical examiners, back (spine) Conditions examinations were performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.71a. Any defects identified in the December 2020 medical examination, including the need for an opinion on aggravation, were cured by the July 2021 medical examination. See June 2021 BVA Decision. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) and in keeping with principles of basic fairness, in the spirit of the non-adversarial nature of VA benefits adjudication, to assist the Veteran. See Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir. 2009) (quoting Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006) ("[C]reating a procedural right in the name of fair process principles [for applicants for VA disability benefits] is primarily based on the underlying concept of the VA adjudicatory scheme, not the U.S. Constitution."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO's efforts have substantially complied with the instructions contained in the May 2019 and June 2021 remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C. § 1113(b) (2014); 38 C.F.R. § 3.303(d) (2016). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See generally 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Presumptive service connection can satisfy the requirements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a)-(f) that manifest either during active service or subject to the requirements of 38 C.F.R. § 3.307 after discharge or release from military service are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309 does not manifest in-service or within the applicable time limits, the second and third elements of service connection may be granted based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Fed Circuit) clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to those "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of mental health or musculoskeletal diseases. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. See Buchanan, supra (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the Veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Gilbert, supra.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Pursuant to the May 2019 Board remand, the Veteran was provided with a VA medical examination in December 2020. The examining physician reviewed the claims file and evidence of record in preparation for his report. The Veteran was examined in person, and his statements were considered, including a report of "slips and fallings down slippery stairs in Germany in 1979." The Veteran was diagnosed with lumbosacral strain, degenerative arthritis of the spine, lumbar spine compression fractures, lumbar spine degenerative disc disease, and status post spinal cord penetrating injury. An X-ray taken in conjunction with the examination revealed: "About 25% loss of height at L3 and L4. Spondylosis with mild disc degeneration at L2-3 and L3-4." See December 2020 VA Back (Spine) Conditions examination report. Regarding direct service connection, the December 2020 examining physician concluded that the Veteran's spinal cord injury was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the examining physician stated: "There is no objective medical evidence in provided in-service records that could establish a direct nexus / relationship between the Veteran's current lower back condition and his military service. Service treatment records indicate that on November 20-21, 1979, the claimant self-referred to sick call clinic in Germany for lower back pain of 1-2 day duration after a lifting injury but did not wait to be seen by the medical officer. A few months later on May 23, 1980 (E-4 Evaluation), he reported no symptoms of back pain, and his spine examination was normal. The available VA treatment records indicate that he was initially evaluated in January 1988 for stabbing injury residuals that occurred in 1986, diagnosed as Brown-Sequard's Syndrome, with MRI confirmation of myelomalacia at left T11-12. None of the current imaging findings of lumbar spine were noted on MRI of Thoracic and Lumbar Spine in 1988. Therefore, the current objective findings of thoracolumbar spine are sequalae of the spinal injury that occurred in 1986, after separation from active duty." See December 2020 VA Back (Spine) Conditions examination report. Pursuant to the June 2021 Board remand, the Veteran was provided with another VA medical examination in July 2021. The examining physician reviewed the claims file and evidence of record in preparation for his report. Regarding proximate causation, the examining physician determined: "[Veteran's] claimed L/S strain, degenerative disc disease, compression fracture, spinal cord penetrating injury with myelomalacia and hemiparesis condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected [PTSD]...I found no medical or objective finding in either his 15,952 page eFile or in medical literature that demonstrates how PTSD can possibly cause any of the Veteran's back problems. The Veteran [was] stabbed in the back and has spinal cord damage and has age and use-related strain, degenerative disc disease. There is no link between the psychological condition of PTSD and these musculoskeletal conditions, which represent clear and absolute link to physical injuries. Any such link is complete, pure and subjective speculation." See July 2021 VA Back (Spine) Conditions examination report. Regarding aggravation, the July 2021 examining physician concluded: "[Veteran's] claim L/S strain, degenerative disc disease, compression fracture, spinal cord penetrating injury with myelomalacia and hemiparesis condition is less likely than not aggravated by the PTSD...I found no medical or objective finding in either his 15,952 page eFile or in medical literature that demonstrates how PTSD could have aggravated any of the Veteran's back problems. The Veteran [was] stabbed in the back and has spinal cord damage and age and use-related strain, degenerative disc disease. There is no link between the psychological condition of PTSD and these musculoskeletal conditions, which represent clear and absolute link to physical injuries. Any such determination of aggravation is complete, pure and subjective speculation." See July 2021 VA Back (Spine) Conditions examination report. Analysis Contemporaneous medical evidence has greater probative value than the Veteran's reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). While the contemporaneous medical evidence does include a current diagnosis (See December 2020 VA Back (Spine) Conditions examination report), i.e., "lumbosacral strain, degenerative arthritis of the spine, lumbar spine compression fractures, lumbar spine degenerative disc disease, status post spinal cord penetrating injury", the contemporaneous medical evidence does not support an in-service event or nexus to service, elements two and three required for service connection. There is no documentation of a back injury while the Veteran was incarcerated by the German authorities. See May 1980 Chronological Record of Medical Care ("Pre-confinement physical exam completed without significant abnormality noted"), and December 1981 Chronological Record of Medical Care ("No indication for complete physical at this time[;] is evident in review of medical records."). In addition, there is no documentation of a slip and fall on "living building" stairs due to snow and ice in February 1978. See November 1979 Chronological Record of Medical Care, "Complains of low back pain x 2 days after bending down picking up [leaves]. Called at 11:55. No show." See also May 1980 Report of Medical History ("Have you ever had or have you now...Recurrent back pain? No."). Further, the December 2020 and July 2021 VA medical examiners determined that the Veteran's spinal cord injury was not the directly related to active-duty service, not proximately caused by the Veteran's service-connected post-traumatic stress disorder, nor was it aggravated by the Veteran's service-connected post-traumatic stress disorder. See December 2020 and July 2021 VA Back (Spine) Conditions examination reports. Moreover, statements by the Veteran regarding an in-service event are internally inconsistent, inconsistent with one another, and inconsistent with the evidence of record, raising credibility issues. The Veteran stated that his back condition is the result of the following in-service events: 1) incarceration in Germany (See March 2005 Third Party Correspondence); 2) homelessness (See September 2018 Board videoconference hearing transcript); and 3) a slip and fall on icy stairs (See March 2019 VA Form 21-0781a, Statement in Support of claim for Service Connection for PTSD Secondary to Personal Assault, January 2020 VA Nursing Outpatient Note, and December 2020 VA Back (Spine) Conditions examination report.). Regarding a fall on stairs, the Veteran stated that he fell "down a flight of stairs, landing on his back, on his way to formation (See January 2020 VA Nursing Outpatient Note) and that he "went to see the doctor for the pain, and he prescribe me pain pills (See March 2019 VA Form 21-0781a, Statement in Support of claim for Service Connection for PTSD Secondary to Personal Assault.)." As mentioned previously, the Veteran not only denied ever having "Recurrent back pain," but service treatment records do not contain complaints of, treatment for, including a prescription for "pain pills," or a diagnosis related to a fall "down a flight of stairs." The Veteran also reported back injuries due to the following: 1) being "hit by a bus while it was breaking (See May 2001 VA Emergency Room Note);" 2) "lifting his backpack (See October 2007 VA Emergency Department Note);" and 3) a stumble while "getting out of the bus (See December 2007 VA Emergency Department Note)." Regarding leg weakness and a spinal cord injury, the Veteran provided the following history: 1) that he was "stabbed in spine during a robbery (on him) (See September 2000 VA Psych Examination and Assessment);" 2) "being drunk and stabbed in the back (See January 2003 VA History and Physical Note);" and 3) that he was "stabbed in the leg when he tried to sell soap for crack (See March 2002 VA Mental Health Note)." Regarding his report of homelessness due to post-traumatic stress disorder (See September 2018 Board videoconference hearing transcript), the evidence shows: 1) "Patient was in and out of jail in Los Angeles (See March 1998 VA Internal Medical Attending Note);" 2) "[H]e will never get into any program and non-compliant with process (See December 2000 VA Psych Emergency Services Triage Note);" 3) "Patient was staying in New Directions residential rehab here for 3 months until last week, when he left 'because the walls were caving in on me (See June 2002 VA Attending Psychiatry Note);'" 4) "Stated he would not stay in a shelter / would rather stay on the streets (See July 2005 VA Psychiatry Resident Note);" 5) "He has been in numerous rehab facilities, possibly most recently at New Directions North, but tends to leave after a short period because he doesn't like the rules (See November 2005 VA Psych Assessment);" 6) "Claimed he has been in New Direction in the past and does not want to go back there (See December 2005 VA Nursing Note);" 7) "[H]e stated that he just wanted something to eat so he could take his ibuprofen...and go back to the shelter in downtown LA (See May 2011 VA Emergency Department Note);" 8) "[E]stimates he's spent > 66% of past 30 years incarcerated...was admitted to psychiatric programs, including rehabilitation for drug use programs and inpatient treatments, about 20 times (See August 2015 VA Psychiatry Attending Note);" and 9) "Veteran said that he was admitted to inpatient psychiatric units about 20 times (See September 2018 VA Mental Health Evaluation Note)." While arthritis is included on the list of chronic diseases enumerated in 38 C.F.R. § 3.309(a), the first recorded mention of a degenerative back condition is a March 1998 MRI. See March 1998 VA MRI Thoracic and Lumbar Spine ("Degenerative disc disease of the lumbar spine is present but without evidence of significant spinal canal or foraminal stenosis.)." See also February 2001 VA Psych Progress Note ("Past medical history is significant for Brown Sequard ('78) with ongoing follow up via neurology; stable MRI pattern but multiple sequelae (urge incontinence, sexual dysfunction, at least.));" December 2020 VA Back (Spine) Conditions examination report ("None of the current imaging findings of lumbar spine were noted on MRI of Thoracic and Lumbar spine in 1988.);" and July 2021 VA Back (Spine) Conditions examination report ("age and use-related strain, degenerative disc disease."). The Veteran does not meet the requirements for presumptive service connection, either by diagnosis in service, within the prescribed time limits after service, or through continuity of symptomatology, and he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. Conclusion In summary, a preponderance of the evidence of record is against a finding that the Veteran is entitled to service connection for a spinal cord injury, claimed as a back condition. The Board has not overlooked the Veteran's statements regarding the severity of his condition. The Veteran provided lay evidence through VA treatment and VA examinations throughout the course of his appeal with respect to the presence of back-related symptoms. However, the Board assigns more weight and probative value to the contemporaneous medical evidence, including service medical records and an in-service self-evaluation, in which the Veteran denied ever having had "Recurrent back pain," VA treatment records, which have never attributed a 1986 stab wound to service, and VA medical examinations, which could not establish service connection for a low back condition. In addition, there is no indication that arthritis was manifest to a compensable degree within one year of separation or that symptoms have continued since service such that presumptive service connection may be applied to the Veteran. The December 2020 and July 2021 physician examinations are the most probative evidence of record on the question of a nexus to service. The opinions were based on an extensive review of all of the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and they provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2020 and July 2021 VA medical opinions are consistent with the evidence of record, including a service self-evaluation denying back pain, and a "stable MRI pattern." The VA medical examinations provide compelling evidence against the Veteran's claim for service connection. There is no competent, credible evidence to refute the examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to service connection for a low back condition. (Continued on the next page) The Board acknowledges the Veteran's lay assertions that he believes his current low back condition is related to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran's statements conflict with one another and the evidence of record. In addition, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. Conclusory, generalized lay statements that military service caused his current back condition are insufficient to prove service connection. For reasons that include questions of credibility, his lay assertions do not constitute evidence upon which service connection can be granted. The overall weight of the evidence is against a finding that the Veteran has a low back condition, to include lumbosacral strain, degenerative arthritis of the spine, lumbar spine compression fractures, lumbar spine degenerative disc disease, and status post spinal cord penetrating injury, that is etiologically related to military service. Therefore, service connection for a back disorder, to include lumbosacral strain, degenerative arthritis of the spine, lumbar spine compression fractures, lumbar spine degenerative disc disease, and status post spinal cord penetrating injury, is not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.