Citation Nr: 21076929 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 07-13 113 DATE: December 28, 2021 ORDER Service connection for a low back disorder is denied. FINDING OF FACT A low back disorder is not shown to be causally or etiologically related to a disease or injury incurred during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the Army National Guard with a period of ACDUTRA from October 1981 to November 1981.This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2006 by a Department of Veterans Affairs (VA) Regional Office. In August 2008 and January 2021, the appellant testified at Board hearings before two of the undersigned Veterans Law Judges. Transcripts of both hearings are associated with the record. At the time of the second hearing, the appellant was informed of his right to have a third hearing before a different Veterans Law Judge who would participate with the other two Veterans Law Judges in deciding his appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, he waived this right to a third hearing. In January 2009, the Board remanded the claim on appeal for additional development and, in August 2011, denied service connection for a low back disorder. The appellant appealed such decision to the U.S. Court of Appeals for Veterans Claims (Court), which, in January 2013, issued a Memorandum Decision vacating and remanding Board's August 2011 decision. In September 2013, January 2014, May 2015, and February 2018, the case was remanded for additional development and it now returns for further appellate review. Entitlement to service connection for a low back disorder. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38C.F.R. §3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The appellant contends that his current low back disorder is a result of an injury incurred during his period of ACDUTRA. In this regard, his service treatment records (STRs) reflect that he sustained an injury to his low back after falling in a manhole in October 1981. Physical examination revealed an abrasion to the lower back that was tender on palpation and a contusion of the left thigh. The appellant was subsequently hospitalized for three days for treatment of cellulitis of the left leg. An X-ray of the lumbar spine was normal. The clinical impression was bruised back. The Board further observes the proceedings of an Entrance Physical Standards Board (EPSBD) in November 1981 recommended the appellant be separated from the military based on inability to use his left thumb secondary to an old, healed fracture with malunion of the proximal phalanx. However, the EPSBD proceedings were negative for any findings or a diagnosis referable to a low back disorder, and reflects that the appellant concurred with the EPSBD's findings and requested to be discharged from the military. After service, the file is devoid of any treatment records pertaining to the low back until 1990 when the appellant began fairly regular treatment for back pain as a result of multiple motor vehicle accidents (MVA). In this regard, the Board notes that, while he received chiropractic care from October 1983 to September 1988, purportedly for back pain, his treatment provider, Dr. R.K., Sr., was unable to provide any information on the nature of such care. See March 2012 and November 2013 letters from Dr. R.K., Jr. Additionally, while magnetic resonance imaging (MRI) in 1991 showed an area of bulge to the right of the L4 level, a 1997 X-ray of the lumbar spine was normal with the exception of very minor degenerative changes at L5-S1. At an October 1998 appointment the appellant reported his symptoms began sometime in the early 1980s, but he did not report any specific injury. He did, however, note his past injuries included multiple MVAs. See Dr. E.E. records. The Board also observes that the appellant's first MVA occurred in 1979, prior to service, but he was involved in post-service MVAs in 1985, 1989, 1990, 1991, July 1996, July 1997, February 1999, May 2006, September 2007, and October 2015, which resulted in related complaints of back pain. The record also reflects that the appellant incurred at least one work-related injury in 1991 in his employment as a tile setter. Additionally, in an April 1998 South Carolina Vocational Rehabilitation Department (SCVRD) Functional Vocational Evaluation Report interview, the appellant stated that he had chronic back pain secondary to "19 or 20" car accidents, and reported a recent fall while climbing stairs at work. Further, Social Security Administration (SSA) records reflect that the appellant reported his onset of disability, which included back problems, as October 17, 1993. Additionally, on his disability report, he claimed that his back first bothered him on December 5, 1989, and, in a March 1994 statement, he claimed that his back condition "began in 1989 when I was injured in an MVA." Additionally, he stated "I've also been involved in other MVAs where I aggravated prior injuries." Similarly, in August 1996, he stated that he had been in several car accidents over the years, as well as a few work-related accidents, where he hurt his back. Rather, the first record in which the appellant claims that his low back disorder is a result of his military service is in a January 2007 private treatment record, which is subsequent to the filing of instant July 2006 claim. See Dr. K.E. records. Similarly, in a May 2008 private treatment record, he reported that he was discharged from the military due to his October 1981 back injury. See Dr. A.T. records. However, as noted supra, the appellant was actually discharged due to an old left thumb fracture. Additionally, at his August 2008 and January 2021 Board hearings, the appellant testified that he had experienced back problems since he fell in a hole during ACDUTRA and had received continuous treatment for such condition. He further reported that, while he was involved in an MVA in 1984 or 1985, such only aggravated his pre-existing back condition. Nonetheless, upon review of the foregoing, the Board finds the appellant's reports as to the onset of his low back disorder in service and a continuity of symptomatology thereafter to be not credible. In this regard, his STRs reflect that, while he injured his back in a fall, contemporaneous X-rays were normal and the ultimate diagnosis was bruised back. Moreover, EPSBD proceedings the following month were devoid of any mention of a low back disorder. Furthermore, post-service treatment records reflect multiple MVAs and work-related injuries with contemporaneous reports of back pain. Additionally, prior to the filing of his claim in July 2006, the appellant, with the exception of reporting a history of back pain since the early 1980's in October 1998, attributed his back pain solely to such post-service events when seeking treatment and filing for disability benefits from SSA and the state of South Carolina. Cucuras v. Sec'y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder's decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that "[m]edical records, in general, warrant consideration as trustworthy evidence, and that "oral testimony in conflict with contemporaneous documentary evidence deserves little weight"); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Additionally, as to such single report of a history of back pain since the early 1980's, the appellant did not report any specific injury that precipitated the onset of such complaints. Similarly, while Dr. R.K., Jr., reported that the appellant received chiropractic care purportedly for back pain from October 1983 to September 1988, his treatment provider, Dr. R.K., Sr., could not recall the nature of such care. Moreover, in his recent statements reporting the onset of his low back disorder during ACDUTRA, the appellant downplays or ignores the impact of his multiple post-service MVAs and work-related injuries. Rather, he reported a single post-service MVA that aggravated his pre-existing low back disorder, which conflicts with his earlier statements documented in contemporaneous records that his low back disorder started after service as a result of MVAs and work-related injuries. Consequently, as the appellant's statements as to the onset of his low back disorder in ACDUTRA and a continuity of symptomatology thereafter are inconsistent with his contemporaneous statements and related documentation, to include treatment records and disability determinations, the Board finds them to be not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility). Therefore, the appellant's statements in such regard are afforded no probative weight. As to whether the appellant's current low back disorder is related to his in-service injury, in September 2007, Dr. K.E., a private physician, stated that, to the best of her knowledge, the appellant's current chronic back pain was associated directly with an injury during active duty in the fall of 1981 when he fell into storm drain. In February 2018, Dr. K.E. noted the appellant's injury in 1981 and his report that he has had chronic back pain since such time, which he managed conservatively. However, she indicated that there was only one treatment record from 1990 during the period from 1981 to 1998. Dr. K.E. stated that it was the appellant's belief that his back issues stem from his in-service injury and, while he admitted to further injury due to MVAs and work-related accidents, he believed that the pain began with the initial injury in 1981. Thus, Dr. K.E. opined that, in light of the appellant's assertion of what occurred and his medical history, it is at least as likely as not that his condition is related to service. Additionally, in February 2021, Dr. W.S., another private physician, opined that the appellant's low back disorder is due to the October 1981 in-service injury. In support thereof, he relied on his "credible" history of the event and since the event, and found that, in light of his well-documented medical history of complaints and treatment of the injury on ACDUTRA leads one to agree that the initial injury/ mechanism of injury of falling into a storm drain and then being treated for such injury while on duty shows the injury to the lumbar spine to be chronic in nature. He further stated that the appellant continued to treat his injury from the date of discharge, and sought medical care from a chiropractor, Dr. R.K., soon after he left the military. Dr. W.S. then acknowledged the appellant had a MVA after service, but in his opinion, such aggravated an already existing lumbar spine condition. However, the Board observes that Dr. K.E.'s September 2007 and W.S.'s opinions are based on an inaccurate factual premise, i.e., that the appellant was involved in one MVA after service, as opposed to the 9 documented in his treatment records or the 19 to 20 MVAs he reported to the state of South Carolina, and do not address his post-service work-related injuries. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). Additionally, to the extent that all opinions, to specifically include Dr. K.E.'s February 2018's opinion, rely upon the appellant's reported onset of his low back disorder and a continuity of symptomatology thereafter, the Board has found such to be not credible. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on veterans' statement renders a medical report not credible only if the Board rejects the statement of the veteran). Furthermore, Dr. K.E. does not provide a rationale for her opinions beyond reliance on the appellant's statements, and Dr. W.S.'s statement that the appellant's STRs show that the injury to the lumbar spine to be chronic in nature is directly contradicted by the fact that his STRs reflected normal lumbar spine X-rays at the time of injury and the EPSBD the following month was devoid of any findings referable to a low back disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, Drs. K.E.'s and W.S.'s opinions are afforded no probative weight. Conversely, in April 2009, a VA examiner reviewed the record, including the appellant's STRs detailing his initial back injury in October 1981 as well as his post-service accidents in 1985, 1989, 1990, and 1991, all with associated back pain, and X-rays from 1997 showing minor degenerative changes at L5-S1, and noted that there was no documentation showing he sought treatment for his back between service discharge in 1981 and 1990. Although the appellant reported that he had been followed by a chiropractor during that time, those documents were not of record. Following physical examination, the examiner diagnosed chronic lumbar spine strain, and opined such was not related to service. In support thereof, she explained that the appellant had an injury in 1981 where he contused his lower back, but such did not contribute to a chronic condition. The examiner further noted that there was no additional documentation to support a chronic disability from this injury as there is no documentation between 1981 and 1990. She also explained the appellant's current lumbar spine X-ray was unremarkable where one would expect an injury in 1981, severe enough to cause 28 years of symptoms, would also cause radiographic changes. However, in the January 2013 Memorandum Decision, the Court found the April 2009 opinion to be inadequate as such relied on the absence of medical records from 1981-1990, did not consider the appellant's reports of a continuity of low back symptomatology, and his full post-service medical history, to include the disc bulge seen on MRI in 1991. Thus, in March 2015, a VA neurosurgeon reviewed the record and noted that the appellant incurred a lumbar strain/contusion in service in October 1981, which is a self-limiting problem and would not be a cause of chronic issues. In this regard, he further observed that there was no documentation of a neurologic injury/ radiculopathy, and no record of treatment until 7 years after the injury in 1981. The VA neurosurgeon indicated that such break in treatment would imply a break in symptoms and would therefore imply no causation from the injury in 1981. He further noted that, after service, the appellant had numerous incidents of injury with MVAs in particular and a worker's compensation injury. The VA neurosurgeon explained that a disc bulge is not a surgical lesion and all patients who live long enough develop bulging discs and those who continue to have injuries will often eventually develop chronic pain. He further stated that there was no documentation of a disc bulge in 1981 and not until 1991 that would support a documented problem resulting from the fall in service. However, in February 2018, the Board found that, in light of the appellant's representative's argument that the previously obtained VA opinions did not consider the appellant's lay statements regarding his treatment history and continuity of low back symptomatology, another opinion was necessary to obtain greater clarity regarding the etiology of his low back disorder. Thus, in August 2019, a VA examiner reviewed the record and opined that the appellant's low back disorder was less likely than incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he reported that the appellant's testimony that he has experienced chronic low back pain since his in-service injury was weighed in conjunction with the report that he received chiropractic care for back pain from October 1983 to September 1988; however, he found that, given the diagnosis of a contusion for the in-service back injury with no contemporaneous evidence of a more severe injury, the two-year gap between service and treatment, and the lack of treatment records documenting the proximate cause of the back pain resulting in such chiropractic care, it was less likely than not that the appellant's low back disorder was incurred in or caused by service. Rather, the examiner found that such disorder was proximately due to or related to the documented back injuries from MVAs and accidents at work that occurred years after his separation from service. Ultimately, he found that, after weighing the medical evidence related to the appellant's complete history referable to his low back disorder, his lay statements, and his representative's arguments, there was no convincing or substantive evidence that establishes a service-related etiology for the appellant's low back disorder. The Board affords great probative weight to the March 2015 VA neurosurgeon's explanation of the disc bulge noted in the 1991 MRI and the August VA examiner's opinion as to the etiology of the appellant's low back disorder as such considered all of the pertinent evidence of record, to include the appellant's statements and his relevant medical history, to include his multiple post-service MVAs and work-related injuries, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez; supra; Stefl, supra. The Board also considered the appellant's assertions as to the etiology of his low back disorder; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the spine and the impact a fall may have on it. Thus, such may not be competently addressed by lay statements. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the appellant's opinion as to the etiology of his low back disorder is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that the appellant's low back disorder is not shown to be causally or etiologically related to a disease or injury incurred during a period of ACDUTRA. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim for service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. JAEGER Veterans Law Judge Board of Veterans' Appeals M. Tenner Veterans Law Judge Board of Veterans' Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.