Citation Nr: 21072003 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-09 614 DATE: December 2, 2021 ORDER Entitlement to service connection for back condition (cervical and low back) is denied. FINDING OF FACT The Veteran's back condition did not have its onset during active service, did not manifest within one year of separation from active service, and is not otherwise caused by active service. CONCLUSION OF LAW The criteria for service connection for back condition have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to March 1969. The Veteran died on July [REDACTED], 2021. The appellant is the Veteran's surviving spouse. In his February 2018 Substantive Appeal, the Veteran requested a Board Hearing. However, in March 2019, he waived his right to the hearing. In December 2019, the Board remanded the claim for further development. The Board noted that the Veteran reported making numerous attempts to obtain his STRs, to include his April and June 1968 or July and September 1968 treatment records for his back. The Veteran stated that at that time, he was stationed in Baumholder, Germany. He also reported that he made attempts to obtain copies of his unit records, also to no avail. The Board noted that the record did not contain evidence that a formal finding of unavailability had been made regarding attempts to locate the Veteran's outstanding STRs, nor had attempts been made to obtain his requested unit records. The Board remanded the claim, to among other things, obtain the records. In January 2020, the National Personnel Records Center response noted that all available personnel documents and/or STRs were uploaded to VBMS. As it has been determined that the Veteran's records had been uploaded, the Board finds that the duty to assist was satisfied, and the agency of original jurisdiction (AOJ) complied with the remand directives regarding any outstanding records. Entitlement to service connection for back condition (cervical and low back) 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. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Analysis The Veteran contends that his back condition is due to military service. Specifically, he stated that he hurt his back in 1968 when he was attempting to lift a water buffalo tank on to a trailer. He experienced immediate back pain that caused him to go to the clinic in Baumholder. He stated that he was given Darvon pain medication and put on light duty. The Veteran has a current diagnosis of lumbar and cervical spine degenerative joint disease (DJD). As such, element one under Shedden is met. The Veteran's service treatment records (STRs) do not document complaints, treatments, or diagnosis for a neck or back condition. During his November 1968 Report of Medical Examination, Separation physical, the Veteran's neck, spine, and other musculoskeletal systems were clinically normal. Additionally, the Veteran noted that he did not have recurrent back pain. In July 1967, the Veteran was seen at the dental clinic. He was administered Darvon for pain for tooth number 32. In a February 1969 Statement of Medical Condition When Examined More Than Three Days Prior to Separation, the Veteran noted, "to the best of my knowledge, since my last separation examination, there had been no changes in my medical condition." In January 1995, the Veteran saw his private physician, Dr. K., regarding tingling in the bottom of his right foot, aching in his calf, and aching in his back. The examiner diagnosed the Veteran with right L5 radiculopathy as manifested by the weakness of the anterior tibs and the toe extensor muscles and decreased right internal hamstring reflex. The examiner stated that the Veteran had been his patient for 17 years. The Veteran's problem began in February 1976 when he was working as a construction worker. The examiner stated that the Veteran was wheeling a wheelbarrow full of concrete when he ducked to avoid something. In the course of ducking, the wheelbarrow twisted, and the Veteran, instead of releasing the wheelbarrow, the handles of the wheelbarrow threw him to the ground. The Veteran felt a snap in his back and went home. He reported being unable to get up from the couch or ground and was taken to the hospital where he saw Dr. M. He was prescribed muscle relaxers. He improved; however, he did not improve to pre-injury state, so, in March 1976, he saw Dr. K. In June 1976, his condition worsened, and a reevaluation showed muscle spasms. In September 1976, he had a series of biofeedback treatments and was place in a lumbosacral corset. Eventually, he was diagnosed with spinal stenosis and surgery was recommended. During his January 1995 exam, Dr. K. noted that the Veteran's past surgical procedures included, "only an appendectomy without complications." During a March 2000 consultation, the Veteran stated that he always had a long history of low back problems, but, around December 1999, he woke up with stiffness in his neck. Regarding his past medical history, the examiner noted that the Veteran had lower back laminectomy and fusion in 1970 and 1995. In an October 2002 New Patient assessment, the Veteran stated that he had chronic low back pain since the 1960s secondary to a work injury. In a June 2000 statement, the Veteran stated that he hurt his back in Germany. He was treated at sick call and had had problems with his back since then. In support of his claim, the Veteran submitted statements from his friends and/or relatives. His friend, C.H., stated that he remembered hearing of the Veteran hurting his back. After discharge, C.H. and his brother hired the Veteran to work in construction. C.H. stated, while moving cement, the Veteran re-injured his back. The Veteran's friend, R.S., noted that he served in Baumholder, Germany. R.S. met the Veteran in the mess hall, and they ate together. R.S. stated, one day, the Veteran had difficulty walking and carrying his tray and appeared to be in pain. The Veteran told R.S. that he injured his back in the tank park while lifting a full water car or picking up the tongue of a water trailer. The Veteran also submitted statements from his wife and mother. The Veteran's wife met him in 1973. At the time she met him, she could tell that he had an injury. He eventually told her that he injured his back in service when he was moving equipment, and his back went out. Since the injury, his back had not been the same. He reinjured his back in 1976. His mother stated that, while in service, he wrote to both her and his father and mentioned hurting his back. He knew immediately that his back was injured because of the pain. He went to the doctor on base and was given medication for the pain. He had a short time on sick leave. In November 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his disability. The Veteran stated that his injury occurred while he was lifting the hitch of a trailer onto the hitch on a truck. He believed he sought medical attention and was given Darvon for pain. The examiner confirmed the Veteran's advanced spondylosis L4-5 with early spondylosis L3-4 and L 5-S1 unchanged and diffuse degenerative changes. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. After reviewing the Veteran's STRs, the examiner noted no evidence that the Veteran sought medical attention and was treated for pain with Darvon. The medical records indicate that on July 17, 1968, the Veteran was given Darvon for a tooth extraction. The examiner stated that there was no other evidence of Darvon being prescribed for a medical condition. The examiner further stated that the Veteran's separation examination does not mention a back condition. In a January 1995 interview with Dr. K, the Veteran indicated that in 1976 when he was working as a construction worker, he was wheeling a wheel barrel full of concrete when he ducked to avoid something. In the course of doing this, the wheelbarrow twisted and instead of letting go of the wheel barrel, the Veteran was thrown to the ground by the handles of the wheelbarrow. He felt a snap in his back and went home. He was seen by Dr. K. again in March 1976. The evaluation showed there was a lot of muscle spasm. The Veteran was then complaining of right leg pain but had no neurological deficit. In March 1995, Dr. K. removed herniated disc L4-L5, and decompression of L5 nerve root. The VA examiner stated, based on the Veteran's separation examination and medical records, he was unable to say that the Veteran's low back condition was a result of military service. In January 2018, the AOJ obtained an addendum opinion. The VA examiner opined that the claimed condition is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the lay statements submitted by the Veteran's mother, wife, and two friends. The examiner noted that the statements identified that the Veteran had a back problem. The examiner stated that the Veteran's STRs do not document treatment or that the Veteran sought medical attention for a back condition. The Veteran's separation examination does not document a back condition. The Veteran's STRs document that in 1976, the Veteran was working in construction, while pushing a wheel barrel full of concrete, he ducked to avoid getting hit. The wheelbarrow twisted, and the Veteran, instead of letting go of the wheelbarrow, was thrown to the ground by the handles. He felt a snap in his back and went home. In March 1976, the Veteran had an appointment with Dr. K. The Veteran had muscle spasms and complained of right leg pain. In March 1995, Dr. K. removed the Veteran's herniated disc L4-L5 and decompression of L5 nerve root. In April 1999, the Veteran was seen for an MRI. The examiner noted degenerative disc changes. In July 2000, the Veteran submitted a statement from a private physician, Dr. C.R. The physician stated that the Veteran suffered from chronic neck and back pain. The physician further stated that the Veteran hurt his back in 1968 and has hurt his back and neck many times since. In February 2020, the AOJ obtained another opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged that, in the Veteran's August 2016 statement, he claimed that his lower back condition started in 1968 after sustaining a back injury during service in 1968. The examiner stated that there is a lack of evidence of a complaint, consult, diagnosis, treatment, or imaging study of the back to support his claim. The examiner noted that although the Veteran presented lay statements from his mother and friend attesting to the Veteran's back condition, his records only show a 1976 injury sustained while working in construction, clearly and unmistakably after military service. While the Veteran claims to have been seen periodically for his back condition, records are silent for encounters, thereafter, suggesting that the 1976 complaint had resolved and was acute, separate, and unrelated to service. The Veteran's records show a January 23, 1995, consult for back pain associated with right leg pain documented in history and examination note signed by Dr. K. Dr. K diagnosed the Veteran with a right L5 radiculopathy with MRI evidence of L4-5 stenosis. The Veteran underwent bilateral hemilaminectomies at L4-5 with discectomy at L4-5 and decompression of the L5 nerve root on the right, followed by arthrodesis of the L4-5 region of the back documented in discharge summary dated March 28, 1995. An April 8, 1999, lumbar spine MRI signed by S.G. impressed underlying degenerative disc change present from L3 to S1 with some enhancement of the LA-S disc space presumed to be postsurgical in etiology, hence, clearly and unmistakably occurring after service. Furthermore, lumbar stenosis is a degenerative condition of the lumbar spine caused by deterioration over time with advancing age, and thus unrelated to service. The examiner noted that the Veteran's records are silent for a complaint, consult, diagnosis, treatment, or imaging study pertaining to a cervical spine condition. Therefore, the examiner opined that the Veteran's claimed back condition (cervical and low back) is unrelated to service, and that it was less likely than not incurred in or caused by the claimed back injury sustained while lifting heavy weights in service. In April 2020, the Veteran submitted a clarifying statement from his treating physician, Dr. C.R. The examiner stated that he reviewed a letter he submitted in July 2000. The examiner reiterated that the Veteran was a patient who suffered from chronic back and neck pain. The Veteran told Dr. C.R. that he initially hurt his back while lifting in 1968. The examiner stated that the Veteran had hurt his back and neck many times since. In June 2000, the Veteran saw his private physician regarding sharp pain. The examiner diagnosed the Veteran with DJD of the lumbar and cervical spine and status post (s/p) lumbar fusion. In September 2020, the AOJ obtained another medical opinion. After reviewing the conflicting medical evidence, the examiner stated that there is no evidence in the service treatment record of a back condition prior to or during service and no documentation in the records provided of a back injury or treatment during service. After leaving military service, the Veteran was part of a VA apprentice program where he worked in construction. The Veteran noted a back condition starting in 1976, i.e., after he was injured during his construction employment. There is evidence in the civilian medical treatment record of treatment for a back condition starting in 1995 for which he required surgery. The examiner stated that since there is no evidence of a back condition during or immediately following service, it is his medical opinion that the Veteran's claimed back condition was less likely than not incurred in or caused by the claimed back condition in service. The Board notes that the private examiner submitted a statement in support of the Veteran's claim. The examiner stated that during the Veteran's evaluation, the Veteran stated that he initially hurt his back while lifting in 1968. However, the Board finds that the statement is entitled to little probative weight. The Board finds that the examiner's statement is not supported by the evidence of record, to include the Veteran's STRs and private treatment records. As such, the Board affords the statement little probative weight. The Board finds the VA examiners' opinions to be adequate and reliable and affords them more probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examiners' opinions are based on a thorough review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the Veteran's relevant medical history and contentions when formulating the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Based on the evidence of record, the Board finds that service connection for the Veteran's back condition is not warranted on a direct basis. The Veteran's STRs do not document complaints, treatments, and diagnosis for a lumbar or cervical spine injury or disability. The Board also notes that the Veteran's private treatment records note a back injury occurring in February 1976 while he was working in construction. Additionally, the VA examiners opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiners stated that there is no evidence in the STRs of a back condition prior to or during service. The examiners noted that in a January 1995 interview with Dr. K, the Veteran indicated that in 1976 when he was working as a construction worker, he was wheeling a wheel barrel full of concrete when he ducked to avoid something. In the course of ducking, the wheelbarrow twisted and instead of letting go of the wheel barrel, the Veteran was thrown to the ground by the handles of the wheelbarrow. He felt a snap in his back and went home. In March 1995, the Veteran underwent surgery to remove herniated disc L4-L5, and decompression of L5 nerve root. Therefore, based on the evidence, the examiners opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed back condition in service. The Board also notes that the first medical evidence of any spinal condition was in 1976, i.e., seven years after discharge from service. The fact that there were no records of any complaints or treatments involving the Veteran's lumbar and/or cervical spine for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Therefore, the Board finds that elements two and three under Shedden has not been met. The Board also finds that service connection for lumbar and/or cervical spine degenerative changes on a presumptive basis is not warranted as the record does not show evidence of degenerative changes within one year of separation from active duty. The first competent evidence suggestive of degenerative changes was in 1999, i.e., 30 years after his discharge from service. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board acknowledges that the Veteran, appellant, his friends, mother, and the representative's statements regarding the etiology of the Veteran's back condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). However, the Board finds that the Veteran's STRs and private and VA treatment records are more reliable evidence and have more probative value than the more recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). In this case, the Veteran's STRs document in-service treatment with Darvon for a toothache and not for back or neck pain. Also, the Veteran's physician, Dr. K., noted that as of January 1995, the Veteran had had only one surgery, an appendectomy and not a lower back laminectomy and fusion in 1970 and 1995, as the Veteran had suggested. To the extent that the Veteran's statements are internally inconsistent and contradictory to the most probative objective medical evidence, the Board finds the Veteran's statements not credible, and gives them little probative value. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Regarding the statements from friends and family members, the Board finds that given the passage of time, and the Veteran's own inconsistencies, their recollections as to what they observed or were told by the Veteran to be of limited probative value. As such, in the absence of a nexus, the claim for service connection for back condition is denied. In reaching the above 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 Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.