Citation Nr: 21076551 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-15 448 DATE: December 27, 2021 ORDER The claim of entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a back disability are not 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 honorable active duty service with the United States Army from November 2003 to April 2004 and October 2005 to May 2005. The instant matter is on appeal from a July 2015 rating decision. In November 2020, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. In February 2021, the Board remanded the claim for additional evidentiary development, to include obtaining new VA examination reports. Subsequent to that remand, the Regional Office granted entitlement to service connection for chronic obstructive pulmonary disease (COPD), bilateral ankle disabilities, bilateral shoulder disabilities, bilateral hip disabilities, and bilateral knee disabilities. As those grants of service connection constitute full grants of benefits sought on appeal, those issues are no longer before the Board. 1. The claim of entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back disability incurred during his activation in support of Operation Enduring Freedom. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a lumbosacral strain, and VA treatment records note chronic back pain, the preponderance of the evidence weighs against finding that the Veteran's back disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran has reported both in written statements and testimony before the undersigned that he believes his present back pain is related to the conditions of his deployment. During his November 2020 hearing, he stated that symptoms started approximately six months after he returned from his deployment. He frequently lifted heavy objects during the deployment and was placed in physically stressful positions. When asked again as to the timeline of symptoms, he reported "six [months], maybe even while I was there." Service treatment records do not reflect a back injury or complaints of back pain during service. His April 2005 post-deployment health assessment denied back pain, and subsequent health assessments from April and September 2005 similarly deny back symptoms. October 2007 private chiropractic treatment records reflect care for neck stiffness and numbness in his arms and hands. The symptoms started approximately one year prior to the initial visit with a graduate onset and no trauma. The Veteran indicated that the symptoms were related to his civilian job in drilling. Radiology reports of the spine from October 2007 do not note fractures or dislocations. Vertebral body heights and disc spaces were normal through the thoracic and lumbar spine. In August 2008 service treatment records, the Veteran then denied joint and chronic pain. He again received private treatment for back, neck, and arm pain in March 2010. Chiropractic records reveal another set of treatment around July 2013. In February 2020, the Veteran reported experiencing chronic low back pain related to "wear and tear from work". Records also reveal the nature of the Veteran's employment history. He worked in the oil field for a number of years, and then started a position as a plant operator. A separate VA record reflects continued work in the oil industry for multiple employers, including in oil fields. In May 2021, the Veteran underwent a VA examination pursuant to Board remand instructions. He described a history of heavy physical labor during his deployment to Afghanistan but stated that the onset of his symptoms did not begin until six months after his return. He was diagnosed with a lumbar strain in the examination. The examiner noted that one diagnostic study may have indicated arthritis, but there was no associated radiologist interpretation. VA records did not otherwise indicate arthritis or a degenerative condition. Following review of the medical and lay evidence of record, the examiner concluded that the Veteran's present back disability was less likely as not related to his service. The examiner reasoned that, per the majority of the Veteran's reports, the back symptoms did not begin until six months or so after service, and typically onset of pain from low back strains was proximate to the time of the strain or injury itself. Due to the delay in the onset of symptoms, the examiner concluded that his condition was less likely as not related to service. As discussed above, the Veteran provided statements regarding the onset of symptomatology associated with his back disability, and the Veteran is competent to describe these symptoms observable to a lay person. However, the Board notes that the Veteran provided inconsistent statements regarding the timing of the symptoms associated with the condition. Treatment records do not note back complaints around the end of his deployment, nor do service records reflect any complaints of symptoms following his return. Private chiropractic records relate his symptoms to his civilian employment, which was drilling around that time. The Veteran himself has indicated that symptoms started about six months after the deployment, but he has also stated that they may have started during the deployment. He indicated difficulty remembering the events precisely as they had occurred many years prior. VA treatment records note chronic back symptoms related to "wear and tear" from his civilian employment. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) ("Credibility is determined by the fact finder."). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In the present case, the inconsistency of the Veteran's statements regarding approximate onset is contrasted with contemporaneous medical records reflecting onset of the condition related to his civilian employment. These inconsistencies, particularly as the Veteran has admitted some difficulty with recollection of events so many years prior, surrounding the approximate onset of observable symptomatology reduce the overall credibility of the Veteran's lay statements. Accordingly, the Board assigns these statements minimal probative weight overall. In contrast, contemporaneous medical records reflecting onset of symptoms related to the Veteran's civilian career, outside of one year from his deployment, are afforded significant probative weight overall. These records were generated through routine medical evaluations and treatments, and the Veteran reported or denied symptoms at those times. There is no indication from the record that the medical records are false or contrary to the Veteran's overall disability picture. Accordingly, the Board assigns these records more probative weight than the Veteran's lay statements alone regarding onset. Due to the diminished probative weight of the Veteran's statements addressing onset, particularly as contrasted with documented medical treatment records associated with the claims file, the Board finds that an alternative showing of a temporal nexus by manifestation of a back disability related to active duty service has not been proven by the Veteran's lay testimony. While the Veteran is competent to report having experienced symptoms of a back disability, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his diagnosed condition. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, the May 2021 VA examiner opined that the Veteran's back disability is not at least as likely as not related to an in-service injury, event, or disease, including the circumstances of his deployment, given the nature of the Veteran's present diagnosis and the onset of symptoms after his deployment. The examiner's opinion is probative, because it is based on a thorough review of the Veteran's medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the preponderance of the probative evidence of record weighs against an etiological relationship between the Veteran's present back disability and his military service. As such, the rule regarding reasonable doubt is not for application, and the claim is denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.