Citation Nr: 21075072 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-10 827 DATE: December 17, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability is not shown to have had its onset in service, to otherwise be related to service, or to have been caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from July 1966 to June 1968, including service in the Republic of Vietnam. This matter was previously before the Board in June 2020, when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development, to include additional VA examination and opinion. The matter was returned to the Board in August 2021, when it was again remanded for consideration of additional medical evidence and generation of a new opinion. That opinion was obtained in August 2021 and the Veteran was provided the opportunity to submit further evidence and argument on the matter prior to the issuance of this decision. Entitlement to service connection for a low back disability The Veteran seeks service connection for a low back disability. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. The Veteran's service treatment records show no evidence of a back disability at the time of service entrance in November 1965 and no evidence of a back disability on physical examination at the time of service separation in June 1968. (See STR, 04/27/1973.) However, he did check the box indicating "recurrent low back pain" on the service separation questionnaire completed in June 1968. There are no records of treatment or complaints of low back pain in service. The AOJ sought VA treatment records identified by the Veteran at Northport VA Medical Center covering the period of January 2010 to October 2013. (See Report of General Information, 07/21/2018.) It was determined that those records could not be obtained and did not exist. The Veteran was seen at a VA facility in October 2013 as a new patient. (See CAPRI, 02/01/2019.) The Veteran was seen at a VA facility in May 2015 for reports of low back pain with tingling which radiated down his left leg. (See Medical Treatment Record, 06/23/2015.) At that time, an X-ray of the back was reviewed, and an MRI was ordered to rule out spinal stenosis as the cause for the Veteran's symptoms. The X-ray report, from February 2015, showed mild multilevel degenerative disc disease at all levels in the spine. (See CAPRI, 02/01/2019.) At a follow-up visit in June 2015, the provider noted that the Veteran had been experiencing low back pain for a long time and that the symptoms increased with range of motion. (See CAPRI, 11/05/2015.) The MRI report showed lumbar facet arthropathy and severe muscle spasms in the lumbar paraspinals as the likely cause of his chronic low back pain with associated right leg weakness. (See CAPRI, 12/13/2017.) He specifically had facet disease at L5-S1 but no disc protrusion or spinal stenosis. (See CAPRI, 02/01/2019.) In July 2015, the Veteran denied having experienced any trauma to his back and indicated that the pain had begun a year prior with no known injuries or accidents which would have caused it. (See CAPRI, 11/05/2015.) At a physical therapy visit that same month, he stated that he had been experiencing low back pain for four years, but it had worsened one year prior. (See CAPRI, 02/01/2019.) He reported that he also felt unsteady on his feet. In August 2016, the Veteran was again treated at VA and noted he experienced weakness in his right leg which necessitated use of a cane for walking and pain in the low back which radiated down his right leg. (See CAPRI, 02/01/2019.) He said he had not tried anything for his low back pain or right leg weakness but had been "toughing it out" for some time. A VA treatment note from December 2016 stated that the Veteran did not have neuropathy of the lower back but did have chronic low back pain. (See CAPRI, 11/09/2017.) An X-ray in 2015 had shown multilevel degenerative disc disease and an MRI in 2016 had shown lumbar disease. He had been evaluated by orthopedics and physical therapy and diagnosed with lumbar disease with radiculopathy. He used a cane for walking as a result of his low back disability. In December 2017, a CT scan of the Veteran's abdomen and pelvis showed age-appropriate degenerative changes in the lumbar spine. (See CAPRI, 01/27/2018.) At the VA examination in October 2020, the Veteran was noted to have been diagnosed with degenerative arthritis of the spine and scoliosis in 2015. (See C&P Exam, 10/28/2020.) He reported an onset of back pain in 1968 when he injured his low back jumping off a truck during an ambush in Vietnam. He was given painkillers by the local medic and evaluated when he returned stateside. He stated that the medical records pertaining to this treatment had been lost in a flood at the Brooklyn Navy Yard. The Veteran reported that his back pain had progressively worsened over time and that he had been treated with trigger point injections and physical therapy in 2016. Current symptoms included low back pain, which was worse with bending, lifting, walking, using the stairs, standing, and sitting. He did not experience any flare-ups and his back hurt all the time. The VA examiner offered the opinion that the Veteran's low back pain was directly caused by or the result of his military service. Further, his low back pain was not caused or aggravated by his diabetes mellitus, type II, and the resulting bilateral peripheral neuropathy. (See C&P Exam, 10/28/2020.) The VA examination in January 2021 considered all of the Veteran's service-connected disabilities and any relationship between them and his low back disability. (See C&P Exam, 01/06/2021.) The examiner offered the opinion that the Veteran's low back disability was not caused or aggravated by his posttraumatic stress disorder (PTSD), coronary artery disease, or any other service-connected disability. Specifically, the examiner noted that there was no medical basis to establish a causal link between any service-connected disability and the low back disability or aggravation of the low back disability by the service-connected coronary artery disease, diabetes, peripheral neuropathy, or PTSD. The examiner noted that degenerative disc disease or arthritis of the spine is an age-related condition which occurred when one or more of the discs between vertebrae in the spinal column deteriorated or broke down, resulting in pain. Degenerative disc disease is a natural occurrence in the aging process, caused by wear and tear over time which progressively worsened, usually starting in the late 30s or early 40s. The VA examiner expressed the opinion that the Veteran's low back disability was not caused or aggravated by any events in service or any service-connected disabilities. In August 2021, the Veteran was provided another VA examination to consider his lay statements and history of low back pain and related symptoms. (See C&P Exam, 08/19/2021.) The Veteran stated that his low back pain began in 1968 when he jumped off a truck and hit the ground hard; he was treated with painkillers. His current symptoms included low back pain that radiated up his back and was treated with painkillers and heating pads. He was unable to walk long distances and experienced flare-ups of back pain every day. The examiner provided the opinion that the Veteran's current low back disability was less likely than not related to any incident in service. The examiner noted that the Veteran was not shown to have sought or received any treatment for back pain for 50 years following service separation and the service treatment records showed no evidence of a serious back injury. The examiner noted that a young and healthy back, the rubbery spinal discs allowed for bending and twisting and provided height between the vertebrae, but the impact of aging caused the discs to wear down and even disappear over time. When the discs were worn down or gone, the vertebral bones would rub together, resulting in osteoarthritis with pain and stiffness. After the age of 40, most people experienced some degeneration of the discs, which was not always accompanied by pain. Without any evidence of treatment or complaints of back pain for nearly 50 years after service, the examiner was unable to find a medical basis for any relationship between the injury in service and the current low back disability. After reviewing all of the evidence of record, to specifically include the documents discussed above, the Board finds that entitlement to service connection for a low back disability has not been shown. The Board acknowledges the Veteran's reported injury in service in 1968 jumping out of a truck in Vietnam. The fact that this injury is not documented in the service treatment records does not impact the Board's acceptance of the injury's occurrence, as the Veteran was in a war zone at the time of injury. The Board also acknowledges the Veteran's report at the time of service separation of having low back pain, as well as the fact that the service separation examination did not mention any findings of low back disability. Based on the Veteran's reports in 2015 when he began receiving treatment for his low back pain, he did not have significant levels of low back pain for more than 40 years after leaving service, with symptoms beginning in about 2010. This history as provided by the Veteran, in conjunction with the VA examinations and opinions of record support the finding that the Veteran's low back disability was not caused by or incurred in service. Rather, the current symptoms of degenerative disc disease and arthritis are the result of the normal aging process which includes wearing down of the vertebral discs which provide cushioning between the bones. In addition, the VA examination in January 2021 specifically ruled out any connection of causation or aggravation between any service-connected disability and the Veteran's current low back disability. Notably, the Veteran has not provided any competent medical evidence to the contrary. As the preponderance of the medical evidence is against the claim, the benefit of the doubt standard does not apply here. 38 U.S.C. § 5107 (b). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.