Citation Nr: 21073314 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-03 273 DATE: December 8, 2021 ORDER Service connection for a low back disability, including lumbago, is denied. FINDING OF FACT The Veteran's low back disability, including lumbago, is not attributable to service, and arthritis of the lumbar spine was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for a low back disability, including lumbago, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to April 1995 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. Service connection for a low back disability, including lumbago, is denied. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifest to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran has current lumbago, documented, for example, in a February 2016 private medical report of Dr. S. At the July 2021 hearing, the Veteran testified that he strained his back while picking up and moving heavy objects in a shipyard during military service. He testified that, upon his initial injury, he sought treatment and was given Tylenol and placed off duty for the remainder of the day. He testified that he continued to have back problems, and reported to sick call on a second occasion thereafter. He reported that both of these incidents occurred in 1993. On review of the Veteran's service treatment records (STRs), initially, his June 1991 service entrance examination report reveals no abnormalities of the spine, and the Veteran raised no pertinent complaints on the accompanying Report of Medical History. Subsequent STRs do not document any complaints, diagnoses, or treatment pertaining to any problems with the back, including on careful review of the records dated from 1993. Rather, the STRs consistently show a denial of symptoms of arthritis or painful joints. See, e.g., April 1994 & February 1995 service treatment records. In August 1994, a Medical Board evaluation was conducted, and the Veteran was assessed with a right scrotal hematoma, status-post right inguinal hernia repair. According to the Medical Board Report, the remainder of his past medical history was noncontributory, and his physical examination was also noncontributory. He was returned to limited duty for a period of six months, and was discharged two months thereafter. His service separation document, DD Form 214, indicates that he was discharged by reason of physical disability. Following discharge, there are no records showing arthritis of the spine dated within one year of his separation from service in April 1995. The earliest treatment records following discharge are dated from 2009 and the Veteran testified at his July 2021 hearing that no additional outstanding records exist. In 2009, the Veteran's past medical history included only a right inguinal hernia repair. See August 2009 & November 2009 VA treatment records. In September 2011, the Veteran reported having transient back pain for the past two years, and denied sustaining a prior trauma. In January 2012, he again reported having transient back pain for the past two years. In March 2012, he sought treatment for back pain and reported that the pain had begun one year earlier. He denied having a prior trauma or injury. In an April 2015 private medical record, the Veteran's chiropractor, Dr. S., stated that the Veteran's back pain began two years prior. The onset of the pain was acute, and the cause was unknown. Later, in a February 2016 report, Dr. S. stated that the back pain had started many years ago when the Veteran was in the military. The cause was unknown. Dr. S. stated that the Veteran's x-rays indicated arthritis consistent with overuse and prior trauma, and opined that his arthritis was most likely due to his years in the military. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The Board finds that the recent assertions of an in-service low back injury are not credible due to the Veteran's own inconsistent account regarding the onset of his low back pain. Specifically, while he testified at the July 2021 hearing that the onset of his pain was during service, he reported to treating providers in September 2011, January 2012, March 2012, and April 2015 that his back pain had begun only one to two years prior, and denied sustaining any prior trauma or injury. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service); see also Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, his service treatment records are devoid of any documentation pertaining to a back problem, including on Medical Board evaluations conducted in connection with his discharge. Further, the probative evidence does not show that the current lumbar spine disability is related to the Veteran's active military service. In this regard, the Board has considered the February 2016 report of Dr. S., however, the Board finds the opinion is of no probative value given the internal inconsistency of Dr. S.'s findings. Specifically, in 2015, Dr. S. found that the Veteran's low symptoms began two years prior in 2013. In contrast, in 2016, he stated that the symptoms began "many years" prior, and originated during military service. In rendering these conflicting findings, there is no indication that either report was premised on a review of the claims file or any pertinent medical records. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). While a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible, here however, for the reasons described above, the Board finds the Veteran's reports are not credible. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005). Additionally, as arthritis of the lumbar spine was not noted during service and characteristic manifestations of the disease processes were not identified, § 3.303(b) is not applicable to the claim. See also Walker, 708 F.3d at 1331. Complaints, diagnoses, or treatment pertaining to a low back disability were not documented in service or within one year of separation from service; rather, the evidence reflects that they were not shown until years after service discharge. As discussed above, the Veteran's contentions regarding the onset of low back pain and the continuity of such since service are not credible. Further, the fact that he sought treatment for other conditions after service but not a low back disability, weighs against the credibility of any statements that his disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The claims file contains VA treatment records dating back to 2009 documenting a variety of complaints, without mention of a low back disability in the earliest records. Because he described other complaints of pain and provided overall assessments of his health and functioning to his general practitioners, but made no mention of a post-traumatic low back problem, it is reasonable to conclude that none was present. Id.; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record does not include a VA opinion on the matter of service connection. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the Board finds that there is no indication, other than the report of Dr. S. and the Veteran's own report, of an association between his low back disability and service. The report of Dr. S. is not probative as described above. The Veteran himself does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disorder as lumbago. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. On a final note, the Board recognizes that the Veteran served from 1992 to 1995, within the era of the Persian Gulf War. However, the presumptions referable to Persian Gulf veterans are inapplicable as his DD Form 214 and service records indicate no foreign service, including in the Southwest Asia Theater of operations. See 38 C.F.R. § 3.317 (d)(1). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. L.M. YASUI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.