Citation Nr: 21005673 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-33 582 DATE: February 2, 2021 ORDER Entitlement to service connection for lumbar spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar spine disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for an entitlement to service connection for lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 through August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in a February 2017 hearing. A transcript is of record. In September 2020, the Board remanded for obtaining a new medical addendum opinion. The Board finds there has been a substantial compliance with the previous Board remand as an adequate medical addendum opinion has been obtained since then. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, the Board is cognizant of the Veteran’s contention that he feels that the private medical opinion provided by his long-time physician was given an unequal weight, and he cited to Robinette v. Brown, 8 Vet. App. 69 (1995), Leshore v. Brown, 8 Vet. App. 406 (1995), and Hayes v. Brown, 9 Vet. App. 67 (1996). However, as will be further discussed below, in this case, the Board found the private positive nexus opinion to have only little probative value to the extent that the private physician failed to provide any explanation for a long gap between the reported onset of the Veteran’s back condition and his separation from service, and reconcile alternative potential risk factors as well as anatomical differences between the coccyx and lumbar spine, among others. As will be addressed further below, the Board ultimately assigns most probative value to the January 2020 VA examination (for lumbar strain) and September 2020 VA examination to the extent that those were furnished even after reviewing the private positive nexus opinion and provided thorough and concrete explanations for the aforementioned findings. Moreover, with regards to the Veteran’s contention that the February 2012 VA examination was inadequate, the Board had already noted in the previous Board remand that this opinion was inadequate for it failed to adequately address the Veteran’s reports/contentions. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran claims his military occupational specialty of a stockroom clerk, which required him to lift heavy boxes of frozen food (lifting and handling “tens of thousands” of cases of frozen food products and intense heavy lifting) led to his current back condition. Alternatively, he attributes his current back condition to his slip and fall incident in service. The Veteran stated either or both occasions led to his current back condition, and further noted that he did not begin seeking treatment for his spine disability until recently as he “sucked it up and went on with life.” See October 2011 lay statement. The Veteran also submitted a medical nexus opinion furnished by his private physician who treated him from July 1986 to June 2007. It is not in question that the Veteran has the current disability as he has been diagnosed with lumbar strain and osteoarthritis of the thoracolumbar spine during the appeal period. His service treatment records document a report of coccyx pain in August 1965, but there was no drainage or swelling and no evidence of a cyst. His September 1967 separation examination shows no relevant issues. His DD-214 form shows that his military occupational specialty was a stock clerk (clerical) and military personnel records describe he was responsible for the “receipt, storage, accountability, and transfer of assigned cargo.” There is a radiology report taken for his complaints of chest pain from February 2008, showing mild degenerative changes of the thoracic spine. However, it was not until 2011 that the Veteran first complained about his back pain and sought treatment for his back condition post-service. Consistently throughout his treatment sessions, to include his very first post-service back treatment session in 2011, he reported a low back pain problem for about 20 years (see also February 2017 VA treatment records, reporting low back pain problem for about 23 years). This would place onset of his back complaints to the 1990s. While the Veteran’s claimed low back condition is a chronic disease under 38 C.F.R. § 3.309 (a) subject to presumptive service connection consideration, the Veteran is not entitled to service connection under this presumption. As noted earlier, the Veteran’s September 1967 exit examination shows a normal spine/musculoskeletal evaluation. There is no credible evidence of in-service manifestations of chronic disease, as the Veteran was treated on a single occasion for coccyx pain without any diagnosis of a back condition and no further complaints during his service. The Veteran also has not claimed that he was diagnosed with a low back condition within one year of separating from service. In fact, it appears that the Veteran himself consistently reported the onset of his lower back condition as around the 1990s and was first diagnosed with osteoarthritis in 2011, while the Veteran left service in 1967. Thus, the Board finds that his back disability did not manifest to a compensable degree within a presumptive period. As for the application of continuity of symptomatology, the Board is cognizant of the Veteran’s contention that he has been experiencing chronic back pain since separating from service and that he self-treated with over the counter medication initially but once they stopped working, he sought private treatment, and subsequently VA treatment. However, even acknowledging the Veteran’s contention, as well as his statement that he “sucked [back pain] up and went on with life” and began seeking treatment for spine disability only recently (see October 2011 lay statement), the Board underlines the Veteran’s own consistent reports made during treatment sessions that his current back condition began approximately 25 years after separating from service, which tends to weigh heavily against a finding that he has had continuous symptoms for his back disability. Therefore, service connection for his back condition is not warranted based on continuity of symptomatology. Turning to the medical evidence of record, the Board first notes that while the Veteran underwent multiple VA examinations throughout the appeal period—February 2012 (diagnosed with a lumbar strain and osteoarthritis of the thoracolumbar spine), July 2017, January 2020, and September 2020—to the extent the first two opinions failed to consider the Veteran’s report of heavy lifting in service and in-service coccyx pain, the Board had previously found these opinions inadequate. They will not be discussed further. As for the negative direct service connection opinion provided for the Veteran’s lumbar strain condition in January 2020, the Board assigns a high probative value to this VA opinion, as it was provided after extensive review of all records, to include the Veteran’s lay statements/reports and in-service/post-service treatment records, substantiated by concrete factual findings. Specifically, the examiner explained that the Veteran’s service treatment records and his separation examination were silent as to any lumbar spine condition, referenced his treatment records documenting reports of the initial onset of his back pain as almost 30 years after separating from service, and further pointed out that there being no medical literature available that substantiates a potential nexus between in-service heavy lifting without back support/slipping and falling and the subsequent development of lumbar strain 30 years later, and further provided the pathophysiology of back strain/sprain and its alternative risk factors. Since the most recent Board remand, a new medical addendum opinion was furnished, in which the examiner provided a negative etiology opinion for both osteoarthritis and lumbar strain. The examiner specifically explained that the coccyx anatomically belongs to a different part from the lumbar spine (coccyx being below the sacrum and lumbar spine terminating at the sacrum), and further highlighted the Veteran’s report of the onset of his back condition as 30 years after separation and there being no medical literature supporting such a gap between the two; and the examiner also enumerated alternative risk factors/pathophysiology of lumbar strain and degenerative disc disease. The Board assigns a high probative value to this opinion, as the examiner considered all pertinent records, to include the Veteran’s contentions/reports, treatment records and the private medical opinion (as will be addressed immediately below), and provided concrete rationales in support of the findings. The Board appreciates and is cognizant of the February 2017 private medical opinion provided by the Veteran’s former long-time private physician. Dr. S opined that his back condition is at least as likely as not from the fall he incurred in service. In doing so, the physician pointed out that the Veteran has had no other falls or serious injuries since leaving the military and that he had a fall that caused his lumbar spine injury for which he continues to have chronic pain and receives pain medication. However, the opinion fails to discuss in any meaningful way the significant gap between the reported onset of the Veteran’s back condition in the 1990s (per his own statements) and his separation from service in 1967, as well as address the anatomical difference between coccyx pain/injury and developing lumbar spine disorders. Therefore, the Board assigns only minimal probative evidentiary value to this opinion. The Board has not ignored the opinion of his treating physician, but the evidentiary value of that physician's statement is to be weighed, just as with any other piece of evidence. A broad application of a treating physician rule (giving greater weight to opinions of treating physicians) has been explicitly rejected as applying to VA claims. See White v. Principi, 243 F.3d 1378, 1381 (Fed.Cir. 2000) ("[T]he VA benefits statutes and regulations do not provide any basis for the 'treating physician' rule and, in fact, appear to conflict with such a rule). A "treating physician rule" which would lend greater weight to the opinion or diagnosis of a treating physician would violate the statutory and regulatory VA scheme, including 38 U.S.C. § 5107(b) as to resolution of doubt and 38 C.F.R. § 3.303(a) requiring that VA adjudication be based on the entire record. The Board also considered the Veteran’s assertions that his current back condition resulted from an in-service injury, event, or disease, including his in-service job and in-service coccyx injury from falling. The Board recognizes that the Veteran is competent to provide lay statements as to observable symptoms, such as pain, but the issue of etiology is medically complex, as it requires medical training. Thus, to the extent that the Veteran has attributed the cause of his claimed condition to his military service, he is not competent to provide such an opinion, and the Board assigns a high probative value to the most recent VA etiology opinion. Last but not least, the Board has also considered the section 1154(b) combat presumption. The Veteran described himself as a combat veteran in his substantive appeal. His DD-214 form shows that his military occupational specialty was a stock clerk and while he served in Vietnam, in a combat area, there is no suggestion he, himself, participated in combat. Furthermore, the combat presumption does not apply because the Veteran has not claimed he incurred any kind of back injury during combat activities. Instead, he has repeatedly stated that he injured his back due to his slip and fall in service and/or due to his duties relating to his MOS of stockroom clerk. In light of the above, the Board finds that the evidence preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the service connection claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.