Citation Nr: 21075062
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 15-31 683
DATE: December 17, 2021

ORDER

Entitlement to service connection for a low back disorder is denied.

FINDING OF FACT

The Veteran's current low back disability is not related to active service. 

CONCLUSION OF LAW

The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Marine Corps, on active duty from November 2003 to December 2006. 

This claim was previously before the Board in November 2016, February 2019 and June 2021, when it remanded the claim for further development. The Board is now satisfied there was substantial compliance with its latest Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, an addendum medical opinion was obtained in September 2021, which the Board finds adequate for adjudication. The issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2021. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation regarding this claim. 

In July 2021, the Veteran's former attorney submitted a motion to withdraw representation. As matter of background, the former attorney withdrew from representing the Veteran in December 2020. A January 2021 letter to the Veteran from VA confirmed the withdrawal of his former attorney and informed him he may appoint a service organization or representative to assist him. Under VA regulations, prior to certification of an appeal to the Board, a claimant's representative may withdraw from representation before an agency of original jurisdiction at any time, "if such withdrawal would not adversely impact the claimant's interest." 38 C.F.R. § 14.631; see also 38 C.F.R. § 20.6. As the former attorney withdrew prior to re-certification to the Board, and in its latest Remand it considered the Veteran as pro se, the undersigned grants the July 2021 motion to withdraw representation before the Board. 

Service Connection

Generally, to establish service connection for a present disability, "the 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." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Entitlement to service connection for a low back disorder

The Veteran asserts that his low back disorder is related to an in-service injury. Specifically, he states that he suffered a low back strain while conducting physical training for two hours during service in 2005. In his February 2012 statement, he asserts that his current low back strain stems from this event. 

Based on the evidence of record, service connection is not warranted for a low back strain, because the evidence does not show that the disorder is related to, or onset during the Veteran's service. 

First, the Veteran's service treatment records (STRs) do reflect a diagnosis of an acute low back disorder in service. STRs, including one dated February 2006, corroborate treatment for low back pain characterized as a low back strain, treated with Motrin and stretching exercises. At his separation examination in September 2006, he reported low back pain as a herniated disc. The separation examiner noted low back pain while lifting objects. 

Next, the post-service evidence does not reflect symptoms related to a low back disorder until June 2010, when the Veteran complained of low back pain during VA treatment. While the record indicates he presented for VA treatment starting as early as 2008 for other ailments, the Veteran did not complain of low back pain during those visits. Thus, while the Veteran complained of low back pain at separation, the Board concludes that any back symptoms suffered in service had resolved by the time the Veteran presented himself for VA treatment in 2008. As the record indicates a nearly four-year gap between his separation and the first post-service complaints of low back pain, the Board cannot grant service connection based on continuity of symptoms. 

The Board recognizes the Veteran's statements that his low back pain has continued since service. Specifically, at his December 2014 VA examination he stated he has suffered from chronic low back pain since separation. The Board is, unfortunately, unable to grant service connection based on the Veteran's statement alone, as it is inconsistent with the other evidence of record. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Despite his specific statements regarding the circumstances of the event, the Veteran's statement is inconsistent with the available evidence of record. Notably, while the Veteran complained of neck pain during June 2009 VA treatment, he denied any other musculoskeletal pain. Further, treating medical personnel noted no musculoskeletal deformities. Finally, when presenting to a private medical center in October 2016, he complained that his chronic low back pain "started approximately 2-3 months ago" and continued "on and off." The Board finds the Veteran's statements that he has had continuous low back pain to be inconsistent with the medical record. Thus, service connection cannot be awarded based on the Veteran's statements alone. 

Finally, service connection may also be granted when the evidence establishes a medical nexus between active-duty service and current complaints. In this case, the weight of the competent evidence does not attribute the Veteran's low back pain to service.

The Veteran underwent a VA examination for his low back condition in December 2014, and an addendum opinion was submitted in March 2018. Unfortunately, the Board found these examinations to be inadequate, as neither discussed all of the Veteran's in-service complaints of low back pain. While both the December 2014 and the March 2018 examiners opined against service-connection, the Board places no probative value on these VA examinations. 

The Board places significant value on the opinion of the VA examiner who examined the Veteran during a December 2014 VA examination, and provided an addendum opinion in September 2021. This examiner opined against service connection, stating that while the Veteran complained of low back pain in-service, such pain did not appear chronic in nature and had resolved itself post-service. In support, the examiner stated that the Veteran presented for VA treatment starting in 2008 without any complaints or recurrent low back pain. The examiner noted that they themselves provided the first post-service diagnosis of record, of a low back strain in 2014, nearly eight years following service. 

The examiner's report indicates the Veteran's low back pain in-service was not chronic, but acute in nature. This, combined with no notes of treatment or complaints until 2010, and no diagnosis until 2014, led the examiner to determine that his current disability is not related to his in-service injury. The Board gives significant probative weight to this examination, as the examiner conducted a thorough review of his claims file and had examined the Veteran in person in 2014.  Accordingly, the evidence is against finding a nexus to service. 

In arriving at this conclusion, consideration has been given to the Veteran's statements relating his current back disorder to his injury in service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

However, the Veteran is not competent to provide testimony regarding the etiology of a back disorder. See Jandreau. 492 F.3d at 1377, n. 4. Because such a disorder is not diagnosed by unique and readily identifiable feature, it does not involve a simple identification that a layperson is competent to make. Therefore, the contentions made by the Veteran linking his low back disorder to service are found to lack competency. 

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a low back disorder, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107. Therefore, the appeal is denied. 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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald