Citation Nr: 21076117 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-54 759 DATE: December 22, 2021 ORDER Service connection for a low back disability is denied. Service connection a left shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current low back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's current left shoulder disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. 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, 3.307, 3.309. 2. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty in the United States Army from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a VA Regional Office (RO). The Board finds that the November 2018 and September 2021 letters sent to the Veteran satisfy VA's duty to notify. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In April 2020, the Board reopened the claim for back strain based on a finding of new and material evidence and remanded the claims for additional development, including updating any VA and private medical treatment records since 2015 and obtaining supplemental VA examination opinions. In July 2021, the Board found that the October 2020 opinions were inadequate because they did not address the Veteran's lay statements. VA medical treatment records since 2015 have been associated with the Veteran's claims file. He underwent VA examinations in September 2021. The September 2021 VA examinations of the Veteran's back and shoulder were thorough, and the examiner's opinions and rationales were detailed and reflected consideration of the Veteran's lay statements regarding pain symptoms during service and after discharge. Therefore, the Board finds that the September 2021 VA examinations were adequate and substantially complied with the July 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for disability from injury or disease that was incurred in or aggravated during active-duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection is also available for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Basic requirements for service connection are (1) a current disability; (2) and in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the disability and service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for a low back disability. The Veteran was diagnosed with degenerative disc disease of the lumbar spine at his September 2021 VA examination. In April 2016, an x-ray showed osteoarthritis. He has a current disability. His service treatment records (STRs) show that in November 1976, he fell on ice and had back pain as a result. The second element of a service connection claim is met. The question for the Board is whether the Veteran's current back disability began during service or is at least as likely as not related to an in-service injury, event, or disease. In his January 2016 Notice of Disagreement (NOD) and in December 1979 and March 2020 hearing testimony, the Veteran said he injured his back in 1977 when he slipped on ice and fell 20 feet down the side of a mountain after getting off a helicopter during a military training exercise in South Korea. The Board concludes that, while the Veteran has a current back disability, the preponderance of the evidence weighs against finding that it began during service or are otherwise related to an in-service injury, event, or disease. Additionally, the Board finds that presumptive service connection for his osteoarthritis of the lumbar spine is not warranted. Although arthritis is a chronic disease as set forth in 38 C.F.R. § 3.309(a), the preponderance of the evidence is against a finding that it manifested within one year of the Veteran's service. In January 1979, an x-ray of his lumbar spine was normal. The Veteran denied back symptoms in October 1981 and October 1983. The preponderance of the evidence is against a finding that his arthritis manifested within one year of separation. Arthritis was first noted on an x-ray in April 2016. Turning to the STRs, the October 1975 Report of Medical History for entry into service is silent for joint or back problems. A November 1976 record notes that the Veteran fell on some ice and had back pain for three days. He was diagnosed with low back strain. December 1976 records note complaints of low back pain for 3 weeks after an injury in November 1976, and a diagnosis of low back pain. February and March 1977 service treatment records show low back strain, with a normal x-ray and examination. In March 1977, the Veteran was placed on profile and a 3-week period of limited duty, including no running, lifting, and field duty. In his August 1978 report of medical history for separation, the Veteran specifically stated "no" for recurrent back pain. No back problems were noted by the examiner. His August 1978 separation examination report specifically found his spine to be normal, and no back symptoms were noted by the examiner. In November 1978, he filed a claim for service connection for "Sprained back. Dec 76," and stated that he sprained his back in Korea. He testified at a hearing in December 1979 and reiterated that he slipped on ice and injured his back. He stated he had a "soft tissue injury" and claimed that the same injury was still "with him." He stated that he sought treatment "all the time." He reported having back pain. His treatment was at-home exercises. In January 1979, the Veteran underwent a VA orthopedic examination in conjunction with his claim for service connection for a back disability. The examining physician stated that the Veteran had a normal alternating gait and was not in distress. He was able to dress, undress, mount and dismount from the examining table, walk on toes and heels, and perform a deep knee bend "with facility." His range of motion was "free, full, unrestricted, and painless." He did not have pain on percussion over the spinous processes, the lateral processes, or the paravertebral musculature along his entire spinal column. There was no visible or palpable spasm along the entire spinal column. He did not have sciatic notch tenderness and no extensor hallucis longus weakness. There were no abnormalities of the lower extremities. An x-ray taken with the examination was negative. This examination report is highly probative against the claim. It shows that the Veteran did not have a back disability in January 1979. His examination was entirely normal, painless, and there was no functional impairment of his back at all. After separation from active service, he applied to serve in the Reserves. His spine was specifically found to be normal at his October 1981 screening examination and no back symptoms were noted by the examiner. In his October 1981 report of medical history for entry into the Reserves, he marked "no" to the question of whether he had, or had ever had, recurrent back pain. In October 1983, he filled out another report of medical history for enlistment into the Reserves. He marked "no" to the question of whether he had, or had ever had, recurrent back pain. The examiner noted, "[n]o past or present pertinent medical history." In the October 1983 report of medical examination, his spine was specifically found to be normal, and no back symptoms were noted. The January 1979 VA examination report, combined with the 1981 and 1983 Reserves records, are highly probative evidence against a finding of continuity of back symptoms since service. The Veteran was examined three times and no back symptoms were found. Additionally, the Veteran specifically stated that he did not have recurrent back pain in two reports of medical history. The earliest post-discharge record noting complaints of back pain is dated August 2015, when the Veteran was seen at the Beaufort Memorial Hospital emergency room, presenting with chronic low back pain and sciatica to his right leg and left hamstring. The Veteran filed his second claim for service connection for a back disability in July 2015. After he filed his claim, a VA treatment record from November 2016 shows a report of having back pain for the previous 30 years after falling down a hillside. That would place onset of symptoms in approximately 1986, which was eight years after separation. At his March 2020 hearing, the Veteran stated that his back symptoms continued since service. At a July 2020 VA treatment appointment, he reported having back pain for "more than" 30 years. The Board finds that the Veteran's report of continuity of symptoms is less credible than the specific denials of recurrent back pain at his separation report of medical history or his two reports of medical history for the Reserves. The STRs and Reserves records are more contemporaneous to his in-service injury. Significantly, when the Veteran was being examined specifically for his back, his January 1979 VA examination was entirely normal and no back symptoms, including pain, were present. The Board finds that there was not continuity of symptoms. VAMC post-discharge treatment records from April 2016 through September 2021 show complaints of chronic low back pain, back spasms, and bilateral leg pain. In April 2016, the Veteran had a lumbar spine x-ray and was diagnosed osteoarthritis at levels L4-5. June 2016 records note complaints of back pain and the Veteran's statement that he works full-time in a warehouse processing boards for building construction. In May 2017, he had a spine MRI which showed multilevel degenerative disc disease at levels T12-L1, L2-S1. At his Board hearing, he testified that he was told he needed surgery in the 1970s and that he refused it and used exercises and pain medication for treatment. He testified that he did not seek treatment for his back problem again until 2015 or 2016. The September 2021 VA examination report notes the Veteran's statement that his back disability began when he injured his back in 1976 after a fall down a mountain during training exercises and he managed the pain with workouts and pain pills. He also rated his current back pain symptoms as "severe" but managed with low dose pain pills and refraining from strenuous activities. He said, "I'm very careful about everything I do, and I don't do a lot of things I used to." The examiner opined that the Veteran's current back disability was "less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The rationale points out that the evidence shows "acute low back pain in service in 1977, resolved, with absence of condition at separation or during his January 1979 examination and a normal x-ray." The examiner cited to the Reserves reports of medical history and examination that were silent for back symptoms. The examiner also noted that there was no evidence of chronicity of back pain symptoms or complaints in the record from 1978 until 2015: "Some 38 years pass until evidence of back pain." The examiner found that the back disability was "more likely than not due to age-related changes and not a previous muscle strain." Although the examiner relied in part on a gap in treatment records, and the Veteran had acknowledged not seeking treatment for many years, this does not render the opinion inadequate. The examiner specifically pointed to the January 1979 VA orthopedic examination and normal x-ray, as well as the records from the Reserves where the Veteran specifically denied back symptoms and his spine was found to be normal. The examiner also provided a cause of the Veteran's current disability that it is age-related as opposed to being due to a prior muscle strain. Additionally, the Board has found the Veteran's assertion of continuity of symptoms since service to be not credible. The examination provides probative evidence against the claim. The Veteran asserts that his back disability is related to his in-service accident in 1977. He is not competent to provide an etiology opinion. Determining the etiology of his current back disability requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has the skills, experience, or medical training needed to make such determinations. His lay opinion is not probative evidence. The most probative evidence is the January 1979 VA examination, the reports of medical history and reports of examinations from the Reserves, and the opinion of the September 2021 VA examiner. The Veteran's assertion of continuity of symptoms since service has been found to be not credible, and his lay opinion is not probative evidence. The preponderance of the probative evidence of record weighs against the claim of service connection for a back disability. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Service connection for a left shoulder disability. The Veteran has been diagnosed with left shoulder strain. The current disability requirement of a service connection is met. The Veteran also asserts that he injured his left shoulder in the same accident in November 1976 on the mountain in which he injured his back. He stated that he did not report the left shoulder pain because his back pain was worse at the time. He stated this in his NOD and also at his Board hearing. The STRs discussed above, including those related to the November 1976 back injury and subsequent treatment, are silent for complaints of left shoulder pain or injury. In December 1977, the Veteran was diagnosed with a rash on his left scapula. The Veteran asserted that he has had left shoulder symptoms since service. Similar to his assertion regarding his back disability, the Board finds his assertion not credible. In his August 1978 report of medical history for separation from service, he specifically answered "no" to having a painful or trick shoulder, and the examiner noted no shoulder symptoms. In his report of examination for separation, his upper extremities were found to be normal, and no shoulder symptoms were noted. In his October 1981 and October 1983 reports of medical history for entry into the Reserves, he specifically answered "no" to the question of whether he had a painful or trick shoulder. Shoulder symptoms were not noted by the examiner. At his October 1981 and October 1983 examinations, his upper extremities were specifically found to be normal, and no shoulder problems were noted by the examiner. This is highly probative evidence against a finding of continuity of symptoms since service. VAMC records from June 2016 through September 2021 note complaints of chronic left shoulder pain. The October 2020 and September 2021 VA examinations note a diagnosis of left shoulder strain. The September 2021 VA examiner opined that the Veteran's current left shoulder condition was "less likely than not incurred in or caused by the claimed in-service injury, event, or illness." In her rationale, the examiner noted the report of in-service left scapula shoulder rash in December 1977 but "no documentation of pain or derangement and the Veteran denies chronic/recurrent joint pain on October 1978 separation exam." She also noted the records from the Reserves, which were silent for shoulder conditions. Further, she stated there is no documentation of joint pain after service until 38 years after active duty. Additionally, she stated that "current VA examination findings and review of diagnosis indicate mild left shoulder strain. There is documentation of pain in anterolateral aspect of shoulder but nothing regarding left scapula specifically." Although the examiner relied in part on a gap in treatment records, and the Veteran acknowledged not seeking treatment for many years, this does not render the opinion inadequate. The examiner specifically pointed to his separation report of medical history and examination, as well as his records from the Reserves where the Veteran specifically denied having shoulder pain or a trick shoulder, and his upper extremities were specifically found to be normal on examination. Additionally, as noted above, the Board has found the Veteran's assertion of continuity of symptoms since service to be not credible. The examination provides probative evidence against the claim. The Veteran asserts that his shoulder disability related to his in-service accident in 1976. He is not competent to provide an etiology opinion. Determining the etiology of his current left shoulder disability requires medical inquiry into biological processes, anatomical relationships, and physiological functioning. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). The record does not show that the Veteran has the skills, experience, or medical training needed to make such determinations. His lay opinion is not probative evidence. The Board finds the STRs, October 1981 and October 1983 Reserves records, and the September 2021 VA examination and opinion to be the most probative evidence of record regarding his left shoulder disability. The Veteran's assertion of continuity of symptoms since service has been found to be not credible, and his lay opinion is not probative evidence. The preponderance of the probative evidence of record weighs against the claim of service connection for a left shoulder disability. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany, 9 Vet. App. 518. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.