Citation Nr: 21074937 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 12-23 713 DATE: December 16, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability is denied. 2. Entitlement to service connection for bilateral lower extremity pain and numbness is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability did not have its onset in service, within one year of separation, and is not otherwise related to service. 2. The Veteran's bilateral lower extremity pain and numbness did not have its onset in service, within one year of separation, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for a bilateral lower extremity pain and numbness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a lumbar spine disability and bilateral lower extremity pain and numbness. A Board hearing was held in December 2017. These issues were previously denied by the Board in a July 2020 Board decision. The July 2020 Board decision also denied an increased rating claim for the Veteran's right shoulder disability, an issue which is not presently before the Board. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims. In July 2021, the Veteran and the Secretary of VA (parties) entered into a Joint Motion for Partial Remand (Joint Motion), wherein they agreed to have the July 2020 Board decision vacated and remanded in relation to the service connection claims addressed herein. The parties agreed that the Board erred when it failed to provide an adequate statement of reasons or bases to support its denials. The Joint Motion was granted by the Court in August 2021. Within the Joint Motion, the parties agreed that remand is warranted for the Veteran's lumbar spine disability claim because the Board provided an inadequate statement of reasons or bases for its credibility determination, as it pertained to the Veteran's resume. The Board found the Veteran's 2010 resume highly probative and emphasized its importance by assigning it its own heading and two paragraphs. In his resume, the Veteran reported that he separated from service because of his right shoulder injury. The Board found this statement impugned the Veteran's credibility because he did not also report his low back injury on his resume (the Veteran claims he injured his low back at the same time he injured his right shoulder). The parties determined the Board did not explain why the Veteran would have an interest in disclosing a low back injury to potential employers, which might cause them to see him as less able to work. The parties distinguished this from the disclosure of his shoulder injury because the Veteran has an interest in providing the reason for his early separation from the Army. The parties agreed the Board did not make clear why the Veteran would disclose all injuries, including a back injury, on his resume when he was only explaining the reason for his separation from service after less than a year of service to potential employers. Accordingly, the Board found that remand is warranted. Additionally, the parties stated that remand is warranted for the Board to discuss whether the Veteran's lumbar spine disability is secondary to the service-connected right shoulder disability. The parties found that the issue of entitlement to service connection for bilateral lower extremity pain and numbness was inextricably intertwined with the issue of entitlement to service connection for the lumbar spine disability. Accordingly, these matters are again before the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability is a result of the injury that caused his right shoulder disability in service. This event involved a situation where the Veteran, while in hand-to-hand combat training, was thrown to the ground and landed on his right shoulder. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability had its onset in service, within one year of separation, or is otherwise related to service. The reasons follow. As to evidence of a current disability, the evidence shows that the Veteran has complained on numerous occasions of having low back pain. Additionally, x-ray interpretations have found degenerative changes in the lumbar spine. The Board finds that this is evidence indicative of a current lumbar spine disability. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, while the Veteran has reported he injured his lumbar spine in service at the same time he injured his right shoulder, the Board finds that such allegation is not credible. More specifically, the Board finds that the longitudinal evidence of record, including service treatment records and private medical records, are inconsistent with the Veteran's allegations made after the fact, as addressed below. The Board first notes that service treatment records do not document complaints of low back pain, a low back injury, or a lumbar spine disability, to include within the records addressing the complaints of the contemporaneous right shoulder injury. The records show that the Veteran presented on three, separate occasions in December 1996 due to the Veteran's November 1996 shoulder injury. The physician noted that the Veteran had experienced continued shoulder pain since the fall in basic training. The examiner observed that the pain was "localized to [the acromioclavicular] joint." A separate record includes documentation by the extension that the Veteran complained of right shoulder pain for three weeks secondary to a fall onto the shoulder during basic combat training. The examiner documented the Veteran reported that the pain increased with reaching across body or elevation. Records from January 1997, wherein the Veteran presented twice, and February 1997 address right shoulder pain only. The Veteran was placed on a physical profile due to his complaints of right shoulder pain. A March 1997 record shows that the Veteran missed an orthopedic appointment earlier that month because he had gone AWOL, or absent without official leave, because he did not want to be in the Army, and he thought he would subsequently be kicked out. However, the examiner noted that the Veteran wanted to be rescheduled for the orthopedic appointment and that he "also [complained of history] of [a left] ankle ligament injury prior to service that he never reported on enlistment [physical examination]." The Veteran explained to the examiner that he was unable to run and perform push-ups because of his left ankle. On their own, the service treatment records do not show that the Veteran reported an injury to his lumbar spine when he reported symptoms associated with the fall injuring his right shoulder. The December 1996 service treatment records, wherein the examiner documented that the Veteran's pain was "localized to the A/C joint" would indicate that the examiner asked the Veteran where the pain was, and the Veteran reported it involved his right shoulder. In other words, he did not report low back pain as well. The Board finds the March 1997 service treatment record is particularly probative in this instance, as it shows that the Veteran reported pain involving his left ankle based on an injury he sustained prior to service when discussing his right shoulder pain. Notably, the Veteran did not limit his complaint to the right shoulder but reported other musculoskeletal pain, which did not include his lumbar spine, and which pain was based on an injury that occurred prior to service. In relation to the left ankle, the Board notes that a March 2005 private medical record from Dr. Brian Cost notes that the Veteran reported an injury to his left ankle during his senior year in high school. The Veteran's resume shows he graduated high school in 1989. Thus, the left ankle injury reported in March 1997 occurred in or prior to 1989. The Board finds as fact that had the Veteran injured his lumbar spine in service, which would have been a contemporaneous injury, he would have reported it when he presented in March 1997 for medical treatment, as he thought to report an injury he sustained in high school eight to nine years prior. From reading the March 1997 document, it is reasonable to assume that the Veteran was attempting to put forth more than just his right shoulder disability as a means for getting him discharged, which is why he also reported the pre-service left ankle injury and the inability to "run or do push[-]ups." Thus, if the Veteran had sustained an injury to his lumbar spine in service and his lumbar spine continued to bother him, it is reasonable to conclude that he would have reported it at this time. It was not reported, and the Board finds that the Veteran's service treatment records show that he did not have a lumbar spine injury in service. The Board notes that there is no separation examination, and the Veteran has reported that he did not undergo a separation examination. Private records submitted by the Veteran also do not support the Veteran's claims relating to his alleged in-service back injury. In a July 2010 private treatment record, Dr. Cost noted that the Veteran was complaining of lower left back pain which had started "3 week(s) ago." In August 2010, the Veteran presented before Dr. Larry Parker with complaints of low back pain and left leg pain, which led to a lumbar laminectomy and spinal fusion procedure performed in September 2010. At the time of the August 2010 treatment, the Veteran explained that his low back pain, to include pain to his left leg, had persisted since July 10, 2010, which is consistent with what the Veteran documented in his Social Security disability application and what he reported to Dr. Cost in July 2010. Though the Veteran described the onset, he specifically denied any injury to his back at that time, and reported he had hurt his back in 1999 and had a herniated disc at L4 for which a lumbar discectomy was performed. This is consistent with records submitted by the Veteran showing he underwent lumbar spine surgery in July 1999. The Board finds that this evidence shows that the Veteran sustained an injury to his lumbar spine in approximately 1999, which is more than 10 years after the Veteran's service discharge. The Veteran stated that, since his 1999 surgery, he has experienced occasional pain that radiates to the left leg, but he did not report any back pain prior to 1999. This evidence is against a finding that the Veteran sustained an in-service disease or injury involving the lumbar spine. The Board finds that the August 2010 private medical record is particularly probative for the reasons that follow. First, The Board finds that statements made for the purpose of treatment, to include reports of prior medical history pertaining to a current medical issue, tend to be reliable, as it is in the patient's best interest to provide information as accurate as possible to receive the most appropriate treatment. He reported having a 1999 injury but did not report an injury earlier than that. Second, the Veteran's statements in August 2010 were made prior to his 2013 service connection claim for a lumbar spine disability. The Veteran's statements made during treatment prior to his 2013 claim for service connection contrast with those made thereafter. Thus, the Veteran's only motivation for his statements in August 2010 was for treatment. Therefore, the private medical records, to include the August 2010 record described above, is highly probative. The Veteran's private treatment records tend to show that the Veteran did not have an in-service injury to his lumbar spine, as he would have indicated as much to his treating physicians whom he sought care for his lumbar spine disability. After a thorough review of all the evidence of record, to include the evidence detailed above that were all created contemporaneously, the Veteran's service treatment records, and private medical records, the weight of the evidence is against a finding that the Veteran's lumbar spine disability had its onset in or within one year of service or is otherwise related to service. The Veteran did not report or document an in-service disease or injury involving the lumbar spine prior to submitting his claim for service connection for the lumbar spine disability in 2013. Medical records dated prior to his claim do not show that the Veteran reported an in-service injury to his lumbar spine at any time contemporaneously when he reported the in-service right shoulder injury, despite multiple spine surgeries performed in 1999 and 2010. This finding is further supported by other evidence in the file. For example, when the Veteran sought compensation for his right shoulder and described the contended in-service injury in August 2010, he noted the injury to his shoulder but did not report an additional injury. During a September 2010 VA examination of his joints, his description of the injury did not include an issue related to the lumbar spine. It is reasonable that where the Veteran presents for a joints VA examination in which the Veteran is seeking compensation from VA, that Veteran would report all joint symptomatology. This tends to show that the Veteran knew he did not injure his lumbar spine in service. Moreover, VA treatment records show that the Veteran initially sought treatment with VA in January 2011 after he lost health insurance. During his initial visit to establish care, he noted his back surgery in September 2010 and his chronic pain. He also noted his right shoulder pain and explained it was due to an injury in service. Thus, when the Veteran discussed his right shoulder pain and reported the onset in service, he did not report that his low back pain had an onset in service. Later, in February 2011, he told a VA psychologist that he was unemployed due to an "on-the-job back injury" and, when reporting his military history, he reported an "'early level separation' due to shoulder injury" and "disciplinary problems." Notably, the Veteran did not state that he had a lumbar spine injury with an onset in service when he reported a shoulder injury with an onset in service and disciplinary problems that resulted in his "early level separation." All these facts tend to show that the Veteran did not injure his lumbar spine in service and further supports the finding that the Veteran did not experience an injury to his lumbar spine in service. The Board finds that prior to when the Veteran filed his claim for service connection for a lumbar spine, no evidence supported a finding that the Veteran sustained a lumbar spine injury in service. Thereafter, the Veteran's statements to treating physicians, to VA, and from his father appear in support of his claim without regard to their contradiction with all prior evidence of record made contemporaneously. The Board notes that the Veteran made at least two statements at the December 2017 hearing that are not supported by the service treatment records. He first testified that, during service, he did not want to bring up any other issues other than his right shoulder. However, as noted above, in March 1997, he specifically brought up his left ankle injury from eight years prior. He also testified that he did not want to bring up any other issues other than his right shoulder because he wanted to get back to his career in the military. However, the March 1997 service treatment record shows that the Veteran wanted to get out of service and had gone AWOL because he thought he would subsequently be kicked out. These statements further damage the Veteran's credibility. Additionally, as discussed below, a statement submitted by the Veteran's fellow servicemember in September 2020, indicated that the Veteran was always vocal about his in-service injury because he wanted the best medical treatment, but the servicemember referred only to a shoulder injury without mention of a back injury. In a May 2013 statement, the Veteran's father ascribed, over 15 years after the Veteran's service, that the Veteran injured his lumbar spine in service and was not treated for it. He explained that the Veteran reported he thought the low back pain was minor and would go away, but the pain persisted. He described that during the first several months following the Veteran's discharge, the Veteran's back would go out and these symptoms would last several days. The father's statement does not explain how he has personal knowledge of the events to competently attest to their truthfulness. Assuming, without finding, that the father's statements are competent and credible, the Board nevertheless finds that the service treatment records and the private medical records, as described above, are more probative as to the pain the Veteran was experiencing while in service and after separation. As explained above, these records were all created contemporaneously with the time period in question and are highly probative. In a September 2020 statement, the Veteran's fellow servicemember, Mr. J.V., recalled witnessing the Veteran's reported in-service injury. During hand-to-hand combat training, Mr. J.V. stated that the Veteran was slammed "down toward the ground causing his head and shoulders to be turned awkwardly to each other." Mr. J.V. stated that the Veteran was injured and that he rode with the Veteran to the hospital, and that, "if I remember correctly, [the Veteran] had either a broken or severely sprang collar bone." Mr. J.V. made no mention of any back or spine injury, despite stating that the Veteran "was always, always vocal about his injury because he wanted the best medical treatment...." This statement does not support the Veteran's service-connection claim herein and makes no indication that the Veteran injured his back at the time of his service-connected shoulder injury, despite the Veteran "always, always" being vocal about his injury. The Board observes that the 1999 date provided by the Veteran in the August 2010 private medical records is approximately two years following service discharge. However, this does not equate to a finding that the onset of the lumbar spine pain occurred in service. The Board notes that a herniated disc is not a chronic disease that allows for consideration of presumptive service connection and there is no evidence of degenerative or arthritic changes in the Veteran's spine within one year of service discharge to support service connection on a presumptive basis. In a January 2014 letter, Dr. Robert Hash II explained that the Veteran's treatment had ended and the Veteran was released from care, but, after his release, the Veteran told Dr. Hash that the onset of his back problems was related to his contended injury in service. The Board finds the physician's recitation of the Veteran's report has no probative value, as it is clearly based on history provided by the Veteran after his claim was filed, and he was no longer seeking treatment. Moreover, the Board, as explained in detail above, has found that the Veteran's statements and testimony regarding an in-service injury to the lumbar spine are not credible. For all the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran having sustained a disease or injury involving his lumbar spine during his period of service from September 1996 to May 1997. His allegation of an in-service injury is not credible. Thus, the preponderance of the evidence is against the second element of a service-connection claim, evidence of a disease or injury in service, being met, and direct service connection is not warranted. The Board also finds that the preponderance of the evidence is against a nexus between the post-service lumbar spine disability and service. All the positive opinions provided by medical professionals are all based on the belief that the Veteran sustained an injury to his low back in service. As the Board finds that such injury did not occur, these medical opinions are based on an inaccurate factual premise and are, therefore, not probative. As noted in the Joint Motion, the Veteran has alternatively alleged that his back disability is caused by or otherwise related to his service-connected shoulder disability. In an April 2013 statement, the Veteran stated that "I feel my back troubles are directly related to the injury I suffered when I injured my shoulder." However, there is no competent and credible evidence of record establishing the Veteran's back condition to be secondary to, or aggravated by, his shoulder disability, and a mere conclusory statement from the Veteran, who is not competent to make such a finding, does not warrant an award of secondary service connection. The Veteran's claim for secondary service connection is incongruent with his statements indicating that he suffered a back injury in the same in-service injury that caused his service-connected shoulder disability. While the preponderance of the evidence does not show the Veteran's lumbar spine disability to be caused by or related to his shoulder disability, there is evidence that the Veteran suffered an intermediate injury after his service discharge, which required surgery in 1999, and which is not indicative of a connection between the Veteran's lumbar spine disability and the service-connected shoulder disability. As there is insufficient evidence to show that the Veteran's current disability was either caused by or aggravated by a service-connected disability, the Veteran's claim for secondary service connection is also denied. VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for a lumbar spine disability. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As laid out in detail above, the evidence does not show that an event, injury, or disease occurred in service involving the lumbar spine. The Board also finds that the preponderance of the evidence is against a finding that the lumbar spine disability may be related to service. For a VA examination to be warranted, all the McLendon criteria must be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination is not warranted for this service-connection claim. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for a lumbar spine disability is denied. 2. Entitlement to service connection for bilateral lower extremity pain and numbness The Veteran contends that his bilateral lower extremity pain and numbness is caused by his lumbar spine disability. As his lumbar spine disability is not service connected, his bilateral lower extremity pain and numbness may not be service connected on a secondary basis. Alternatively, the Veteran contended at his Board hearing that his bilateral lower extremity pain and numbness is due to the same contended injury in service that caused his service-connected right shoulder disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for bilateral lower extremity pain and numbness. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral lower extremity pain and numbness had their onset in service, manifested within one year following service discharge, or is otherwise related to service. The reasons follow. As to evidence of a current disability, the evidence shows that the Veteran has complained on numerous occasions of having bilateral lower extremity pain and numbness, which the Board finds, for the purposes of this decision, is evidence indicative of a current disability. Therefore, the facts establish the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran sustained a disease or injury to his bilateral lower extremity or lumbar spine during service. As noted in the previous section, the Veteran's allegations of an in-service lumbar spine injury are not credible. For the same reasons, his contentions related to his bilateral lower extremity pain and numbness are not credible. Moreover, all competent medical evidence of record shows that the Veteran's bilateral lower extremity pain and numbness are likely related to his lumbar spine disability. Notably, medical records show that the Veteran first reported that his pain and numbness in his bilateral lower extremity started in July 2010, along with the onset of his back pain that did not involve a concurrent injury. Thus, the preponderance of the evidence is against the second element of a service-connection claim being met. VA has not provided the Veteran with a medical opinion in connection with the claim for service connection for bilateral lower extremity pain and numbness. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that an event, injury, or disease occurred in service involving the lumbar spine or the lower extremities. The Board also finds that the preponderance of the evidence is against a finding that the bilateral lower extremity symptoms may be related to service. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination is not warranted for this service-connection claim. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for bilateral lower extremity pain and numbness is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate 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.