Citation Nr: 21073717 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 11-26 099 DATE: December 10, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability was not chronic in service and has not been continuous since service separation, did not manifest to a compensable degree within one year of service separation, and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1985 to July 1988. In April 2018, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. The Board remanded the issue in August 2021 for further development, including obtaining a VA addendum medical opinion. The Veteran subsequently was provided a VA addendum medical opinion in August 2021, and the opinion is in the claims file. The Board therefore finds there has been substantial compliance with the remand directives on the issue of service connection for lumps on the right inner thigh. See D'Aries v. Peake, 22Vet. App.97, 105 (2008); see also Stegall v. West, 11Vet. App.268 (1998). 1. Service connection for a low back disability. After a full review of the record, a preponderance of the evidence of record is against the Veteran's claim for service connection for a low back disability. To prevail on a direct service connection claim, there must be competent evidence of (1) 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 current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). A presumption of service connection attaches to certain chronic diseases enumerated in 38 C.F.R. § 3.309(a), including degenerative arthritis. Where a veteran develops an enumerated chronic disease to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish a chronic disease in service, a veteran must show a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (b). When the disease identity is established, there is no requirement of an evidentiary showing of continuity. See id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See id. Continuity of symptomatology is only applicable to those diseases recognized as "chronic" for VA purposes. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); see also 38 C.F.R. §§ 3.303 (b), 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §3.102. The Veteran seeks entitlement to service connection for a low back disability. Service treatment records (STRs) are silent for any treatment, complaints, or diagnoses of any back condition or any documentation of a back injury. A review of the Veteran's claim file indicates that in October 2010 the Veteran first reported back pain. Specifically, VA treatment records note that the Veteran injured his back in October 2010 unhitching a tractor. Dr. E.M. diagnosed the Veteran with a herniated disc and myofascial strain acute after this incident. In December 2010, a VA treatment radiology report indicated that the Veteran has had low back pain ever since he injured his back on October 2, 2010 from pulling a trailer to disengage from a truck at work. Further a December 2010 MRI revealed mild degenerative disc disease with mild bilateral neural foraminal stenosis at L4-5. In January 2011, the Veteran submitted a lay statement that his back injury occurred while in active service at Fort Steward, Georgia in 1987. Additionally, in January 2011, a doctor from a Veterans Outpatient Clinic reported that the Veteran suffers episodic low back pain and may need a brief rest or change at his work to alleviate his pain. In December 2013, private treatment records from the Miramar Interventional Pain Treatment Center indicate that the Veteran was seen by Dr. R.Q. for low back pain. The Veteran reported at the evaluation that he had been experiencing low back since 2010. The Veteran also reported that he injured his back while in battle and had to carry heavy gear on his back. However, the Veteran also stated that in October 2010 he was unhitching a tractor and hurt his back again. The private treatment records reported no instances of back pain occurring before 2010. Dr. R.Q.'s assessment of the Veteran was chronic lumbosacral spine pain. In February 2015, Dr. R.Q. submitted a statement to the VA regarding the Veteran's low back disability. See February 2015 Statement in Support of Claim. Dr. R.Q. indicated that he initially saw the Veteran in his office in December 2013 for a back evaluation. Dr. R.Q. noted that the Veteran reported his lumbar pain is a direct result of injuries sustained as a result of serving in the Army. Dr. R.Q. opined that the Veteran has a history of chronic lumbar spine pain that is a direct consequence of the Veteran's injury from serving in the Army. Dr. R.Q.'s rationale stated that the Veteran's history shows that in 2010 he had an aggravation of the lumbar spine as a result from pulling a trailer. Dr. R.Q. noted that the Veteran reported that since 2010 the pain to his lumbar spine has progressively worsened. The medical opinion also recommended that the Veteran needs a new MRI of the lumbar spine. In April 2018, the Veteran testified at a Board hearing that he injured his back in service when he fell back on his gear. The Veteran asserted that his "lower body bent in a way that it wasn't supposed to bend." See April 2018 Board hearing transcript P.7. The Veteran reported that he told a medic his back was "messed up" from carrying rucksacks and equipment but was not treated and continued on with his service duties. In October 2019, the Veteran was afforded a VA examination of his low back disability. The VA examiner diagnosed the Veteran with thoracolumbar condition (degenerative arthritis of the spine) and bilateral lumbar radiculopathy. The Veteran indicated at the examination that his back pain started in 2010 with insidious onset and then started preventing him from standing. However, the examiner held that the back condition was less likely than not incurred in or caused by any claimed in-service injury, event, or illness. The examiner's rationale stated that there was no documentation to support the claim and the STRs were absent of any complaint, treatment, or diagnosis for a low back disability. However the examiner did not opine whether the Veteran's low back disability manifested within one year after discharge, or was noted during service with continuity of the same symptomatology since service. See March 2021 Board remand decision (noting the Bound found the October 2019 VA examination insufficient, as it did not adhere to these specific remand directives given by the Board in rendering its conclusion and opinion). In March 2021, the Veteran was afforded a VA Back Disability Benefits Questionnaire (DBQ). The VA examiner opined that the Veteran's low back disability was not related to service. The VA examiner's rationale stated the following: "[n]o chronic diagnosis is made for back pain. Objective exam is normal. Symptoms are subjective only. A nexus has not been established." See August 2021 Board remand decision (noting the Bound found the March 2021 VA back DBQ inadequate because, like the October 2019 VA examination, it did not adhere to these specific remand directives given by the Board in rendering its conclusion and opinion). In May 2021, a VA addendum medical opinion was provided. However this opinion only indicates that "the Veteran's report of battle has been reviewed as well as the notes from the pain management specialist." The examiner continued to opine that the Veteran's weight contributes to his lumbar condition, not an undocumented incident that occurred several decades ago. The examiner did not address the lay report of wear and tear from having to carry heavy equipment and gear or jumping out of Blackhawk helicopters. In August 2021, the Veteran was afforded an additional VA Back DBQ. The VA examiner opined that "while Veteran reports he believes his back condition is due to injury in the service as well as carrying heavy load and jumping out of helicopters, it is less likely than not that his current lumbar spine condition was caused by these circumstances." See August 2021 VA Back DBQ. Additionally the VA examiner stated that "there is no evidence this injury developed into a chronic medical condition and there was no continuity of symptoms between service and 2010." The VA examiner noted that the Veteran reported injuring his back in 2010 pulling a tractor trailer and has had chronic back issues ever since the injury in 2010. Notably, the VA examiner indicated that "it is less likely than not any acute lumbar spine injury in the service caused the current lumbar spine pathology, because more likely than not all of the chronic lumbar issues are caused by the October 2010 injury." See August 2021 VA Back DBQ. Further, the VA examiner noted that medical literature is silent to support a correlation between developing arthritis of the lumbar spine (with or without radiculopathy) later in life and carrying heavy weight or jumping out of helicopters in service. References were provided when citing to medical literature. Here, after review of all of the evidence, lay and medical, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. First, the Board finds the February 2015 private medical opinion by Dr. R.Q. to have little probative value. Although Dr. R.Q. opined that the Veteran's low back disability is related to service, there is no evidence in the rationale that the Veteran's claim file, STRs, or post-service medical records were reviewed. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Dr. R.Q. indicated that he noted the Veteran reported that he injured his back in service. Dr. R.Q. also noted that the Veteran asserted his back pain had gotten worse since when he hurt his back in 2010. Despite Dr. R.Q. noting the Veteran's lay statements in his rationale, Dr. R.Q. did not comment of why there was no reported back pain from service to 2010. However, Dr. R.Q did mention in his rationale that the Veteran's back pain has progressively gotten worse but only since 2010, not since service. As such, Dr. R.Q. did not state a basis for which his opinion was based. See Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the Veteran held to be speculative). In sum, the February 2015 private medical opinion by Dr. R.Q. is given little probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). Next, the Board finds the August 2021 VA Back DBQ to be competent and credible, and as such, is entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the Veteran's claims file, which included STRs, post-service treatment records, the August 2021 Board remand directives, medical literature, and consideration of the Veteran's lay statements. The August 2021 VA examiner stated that despite the Veteran believing his back condition is due to injury in the service as well as carrying heavy load and jumping out of helicopters, it is less likely than not that his current lumbar spine condition was caused by these circumstances. The VA examiner supported this statement with rationale from medical literature referring to arthritis in the spine and veterans who carried heavy weight and/or jumped out of helicopters in service. Further, the VA examiner noted there is no evidence the Veteran's back injury developed into a chronic medical condition and there was no continuity of symptoms between service and 2010. Additionally, the August 2021 VA examiner indicated that it is less likely than not any acute lumbar spine injury in service caused the current lumbar spine pathology because more likely than not all of the chronic lumbar issues are caused by the October 2010 injury. As such, the Board finds August 2021 VA Back DBQ to be adequate and is thus given great probative value. The Veteran has also made multiple lay statements attempting to show that there was an in-service incurrence that led to the back disability. Throughout the claims file, the Veteran makes statements that his back injury is due to being in battle, having to carry heavy equipment and gear, jumping out of Blackhawk helicopters, or potentially from a fall he suffered when he hit his head at Fort Steward, Georgia. The Board, however, cannot rely on the Veteran's general assertions as to a medical nexus to service because although he is competent to report pain in his back, he is not shown to possess the type of medical expertise that would be necessary to opine regarding the etiology of back pain. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has considered the Veteran's lay contentions, specifically those provided during the April 2018 Board hearing, and those provided throughout the period on appeal, that he injured his low back in service and that the pain he is experiencing now is from the reported injury in service. However, there is no evidence that the Veteran has the medical education and training required to make competent clinical diagnosis to specific events or injuries. The Veteran's statements are outweighed by more contemporaneous medical evidence of record, which includes the probative August 2021 VA back DBQ. As such, the Board finds the Veteran's statements probative with regard to establishing his current symptoms, but finds little probative value with regard to establishing service connection. Significantly, the Board notes that the Veteran has not made any assertions of having back pain during and after active service until 2010. See December 2013 private treatment records from Dr. R.Q. (noting that the Veteran reported a back injury in service but only noted experiencing back pain since 2010); see also October 2019 VA examination (noting the Veteran reported to the VA examiner that his back pain began in 2010). The medical records and lay statements in the Veteran's claim file indicate that the first reported back pain was in October 2010 after the Veteran injured his back puling a tractor trailer. Thus, there is no evidence of the Veteran's disability manifesting one year from the date of separation from service or any evidence of continuity of symptomology. There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere in his belief that he has a diagnosis of a low back disability that is related to his active military service. However, the Board has carefully reviewed the record in depth and has been unable to identify a basis upon which service connection may be granted. The Board does note that a February 2015 private medical opinion submitted by Dr. R.Q. does opine that the Veteran's low back disability is from service. However, as noted above, the Board afforded this opinion low probative value because there was no evidence that the Veteran's claim file, STRs, or post-service medical records were reviewed when rendering the opinion. Additionally, Dr. R.Q. did not provide a medical basis for his opinion but instead based the opinion on the Veteran's testimony of injuring his back in service and the Veteran's history of back pain since 2010. Notably, the February 2015 private medical opinion is outweighed by the August 2021 VA Back DBQ finding that the Veteran's back disability was not related to service, which the Board found to have significant probative value. Therefore, a preponderance of the evidence of record is against the Veteran's claim for service connection for a low back disability. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.