Citation Nr: 21006342 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-26 410 DATE: February 3, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability was not manifested in service; arthritis of the low back was not manifested in the first postservice year; and, any current low back disability is not shown to be etiologically related to the Veteran’s service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1981 to June 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. In May 2013, a hearing was held before a Decision Review Officer (DRO) at the Regional Office (RO). In February 2017, a videoconference hearing was held before the undersigned. Transcripts of both hearings are associated with the Veteran’s record. A July 2017 Board decision denied service connection for a low back disability. [The Board decision also denied service connection for bilateral knee and shoulder disabilities.] The Veteran appealed the Board’s July 2017 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). Pursuant to a November 2018 Memorandum Decision, the CAVC set aside the portion of the July 2017 Board decision denying service connection for a low back disability and remanded the matter to the Board for additional action. [The Veteran expressly abandoned claims seeking service connection for bilateral knee and shoulder disabilities, and those matters are no longer before the Board.] This matter was remanded in July 2019 pursuant to the Veteran’s request for AOJ review of new evidence (new buddy statements) in the first instance. Entitlement to service connection for a low back disability is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis).  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to his back. On April 1984 service separation examination, his spine was normal; he denied having, or ever having had, recurrent back pain, arthritis, rheumatism, or bursitis. The Veteran’s service personnel records (SPRs) show that he participated in track and field events at the 1983 Soldiers Olympiad, and went “beyond the requirement of physical conditioning” and showed “excellence in athletics.” See July 7, 1983 Letter of Appreciation. Additionally, Army physical readiness test scorecards (noting a maximum available score of 300, 100 points each for pushups, sit-ups, and a 2-mile run) reflect that the Veteran obtained the following scores during service: October 1981 – 293, April 1982 – 300, November 1982 – 300, July 1983 – 300, and November 1983 – 300. The Veteran also reported, “In my spare time in Germany I would go out and run marathons.” See May 2013 DRO hearing transcript. The earliest postservice clinical record pertaining to a back disability is a November 1998 notation of low back pain following a work-related lifting injury; the assessment was lumbosacral strain. The Veteran was placed on light duty for approximately three weeks before returning to full duty. An October 2001 clinical record (also from the Veteran’s then employer) notes complaints of back pain after “moving furniture at home” the prior day. The diagnosis was backache, unspecified. A November 2006 VA clinical record (from the Veteran’s initial visit at the Columbus, Mississippi community-based outpatient clinic (CBOC)) notes complaints of right shoulder pain for one month. He denied any chronic medical problems. A March 2007 clinical record notes an impression of back pain. A November 2007 clinical record notes complaints of low back pain; the impression was chronic back pain, stable. April 2008 clinical records note continued complaints of back pain and stiffness. A May 2009 VA clinical record notes complaints of low back pain radiating to the right leg. Lumbar spine X-rays showed minimal anterior lipping at the L3-4 and L4-5 levels; the impression was minimal degenerative disease. A January 2010 VA clinical record notes complaints of abdominal and back pain following sit-ups; the impression was chronic low back pain. May 2010 x-rays of the thoracic and lumbar spine showed mild degenerative disease. In an August 2010 statement, the Veteran acknowledged that his postservice records only show a back problem since 1998, but he reported that he has had back pain since service that has progressed with age. He reported that his back symptoms “would go away [by] simply exercise and staying in shape. As I get older the problem manifest[s] more and more.” In an October 2010 statement, he similarly reported that he experienced some back pain and soreness in service, “and in a few days it was over.” He reported that, “Up until 1998, pain would come and go, and I never really worried about my back pain.” He acknowledged a 1998 work-related back injury, and stated that the pain was similar to “pain that I alway[s] felt but ten times worse.” At the March 2013 DRO hearing, the Veteran testified that he injured his back in service lifting antennas in October 1981, a task that “usually takes two or three people to do.” He related that he had back pain that “comes and goes” throughout service, but did not seek medical treatment. He reported current back pain that radiates down his legs to his knees. He explained that he never sought medical treatment after service as he prided himself on remaining physically fit so that he “could do most things [he] wanted to do.” An August 7, 2013 clinical record notes complaints of chronic low back and neck pain. The nurse practitioner noted an impression of DJD (degenerative joint disease) – low back pain. He was referred for x-rays of the spine and chiropractic services. An August 30, 2013 VA chiropractic record notes the Veteran reported “low back pain since moving equipment in 1998.” Following review of x-rays, the assessment was lumbar disc degeneration, cervical disc degeneration C5/C6, thoracic segmental dysfunction, and muscle spasm. At the February 2017 Board hearing, the Veteran testified that he began VA treatment in 2007 or 2008. He testified that between separation from service and 2007 he self-medicated with Advil, Tylenol, ice packs, and heat packs, and that he he injured his back in service putting up an antenna. He reported that because he was in good physical shape, he “was fine” in “usually a day or two…and that went on for years.” He testified that he assumed he would similarly “be fine” after his 1998 work-related back strain, but that the pain persisted beyond two or three days. A July 2017 Board decision denied service connection for a low back disability. In a November 2018 Memorandum Decision, the CAVC noted that at the February 2017 Board hearing, the undersigned “stated how a claimant may substantiate a claim of service connection”… but did “not signal to the [V]eteran that more evidence was needed on the in-service injury requirement.” The CAVC observed that “evidence such as buddy statements and journal entries are relevant to the claim because they could serve to corroborate [the Veteran’s] testimony regarding in-service injury and continuing symptoms, which the Board ultimately found incredible.” The CAVC also noted that “such evidence could trigger VA’s duty to assist [the Veteran] in obtaining a medical nexus opinion.” In March 2019, VA received a buddy statement from R.J., who reported serving with the Veteran in 1982 and 1983. He reported that the Veteran complained of “having lower back pain” on “several occasions,” but that he was not the type to see a doctor. VA also received a buddy statement from B.R.J., who reported serving with the Veteran from 1983-1984. He stated that the Veteran would sometimes complain about having lower back pain that he believed was from installing an antenna, and that the Veteran never saw doctor because “He was that kind of soldier.” [Neither statement discusses postservice symptomatology.] On November 2019 VA (fee basis) back examination, the diagnoses were degenerative arthritis of the spine and lumbar radiculopathy. The Veteran reported back pain onset in AIT while “lifting a lot” and “putting up 40 feet antennas”; he reported feeling a “pull in his back as if something was shocking him.” He reported, “In 1998, the pain began to hang around and be constant.” Following interview/examination of the Veteran, and review of his claims file, the examiner opined it was less likely than not that the Veteran’s low back disability was incurred in or caused by the claimed in-service event or injury. She acknowledged the Veteran’s statements and the “two separated buddy statements.” She also noted that the Veteran has been treated multiple times for low back pain and degeneration after active duty. She provided a negative nexus (to service) opinion, citing to “insufficient evidence noted in the claims file of a back condition while in service” and to the Veteran’s separation from service examination, which “does not indicate any complaints of a back condition at the time of discharge.” Analysis It is not in dispute that the Veteran now has a low back disability. What remains to be established is whether such disability is related to an injury in service. The Veteran’s STRs are silent for complaints or findings pertaining to his low back. On service separation examination, his spine was normal, and he denied having, or ever having had, recurrent back pain, arthritis, rheumatism, or bursitis. While he testified at the DRO hearing that he sustained a back injury in service lifting antennas in 1981, such injury is not noted in STRs. The Board acknowledges that an unreported back injury [of insufficient gravity to require treatment] may have occurred, as alleged. The Board also acknowledges the buddy statements received in March 2019, which report that the Veteran complained of low back pain on occasion from 1982-1984. However, his SPRs show he participated in the 1983 Soldiers Olympiad, scored a perfect score of 300 on four of five physical readiness tests (with a near perfect 293/300 on the fifth test) between October 1981 and November 1983, and earned a July 1983 letter of appreciation from his lieutenant colonel noting his efforts to “go beyond the requirement of physical conditioning and bring recognition to themselves and this unit for excellence in athletics.” He also testified (at the DRO hearing) that he ran marathons in his spare time in Germany. Such accomplishments and citations are inconsistent with a claim of a low back injury in service in 1981 (two years prior to the Olympiad) that resulted in a chronic disability that persisted, and his lay reports of continuing low back pain from 1982-1984. Presence of a chronic disease low back disability (such as arthritis of the spine) is not shown . The Board has considered the Veteran’s (and his buddies’)lay statements reporting continuity of symptoms since an injury in service. However, the preponderance of the evidence is against a finding of continuity of low back arthritis symptoms (which is significant as the arthritis service-connection for arthritis of the spine may be established on that basis, because it is a chronic disease listed in 38 C.F.R. § 3.309(a)). On service separation examination, the Veteran’s spine was normal, and he denied recurrent back pain and arthritis. Following service, the Veteran sought treatment for his back prior to March 2007 (from when medical records note more consistent complaints of low back) in November 1998 (following a work-related lifting injury) and in October 2001 (following an injury moving furniture at home); he did not then report a history of an earlier injury in service or of continuity of back complaints since service. A November 2006 initial VA treatment record notes complaints of shoulder pain for one month; the Veteran denied any chronic medical problems. In an October 2010 statement, he reported that he experienced some back pain and soreness in service, “and in a few days it was over [emphasis added], weighing against a finding of continuity.” And on August 30, 2013 chiropractic examination, the Veteran reported low back pain since 1998 (not since service or at any point in the 14 post-service years prior to 1998). The Board finds that his reports of the history of the claimed disability documented contemporaneously in a clinical (treatment) context merit greater probative weight than statements he has made more than 25 years after service in connection with a claim for compensation. Thus, he only sought treatment for his back on two occasions in more than two decades after separation from service, and has provided conflicting statements regarding when his back pain began. Consequently, the Board finds his more recent statements reporting continuing back complaints since an injury in service not credible. As arthritis of the low back is not shown to have been manifested to a compensable degree within a year following the Veteran’s separation from service, and postservice continuity is not shown, service connection for a low back disability on the basis that it became manifest in service and persisted thereafter, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a)), or based on continuity (under 38 C.F.R. §3.303(b)) is not warranted. In the absence of evidence of a chronic low back disability in service, manifestation of low back arthritis in the first postservice year, or credible evidence of continuity of low back complaints since service, the etiology of such a disability first diagnosed in clinical records more than 14 years after separation from service is a medical question, particularly considering the multiple intercurrent (work and home) injuries sustained in the interim. See Jandreau, supra. To the extent that the Veteran asserts his low back disability is related directly to service (vs. the documented post-service injuries, as a layperson, he lacks the expertise to offer a competent opinion in the matter. Id. He has not submitted any competent (medical opinion or treatise) evidence in support of this claim The preponderance of the competent (medical) evidence is against a finding that the Veteran’s current low back disability is etiologically related to his active service. The Board finds the November 2019 VA (fee basis) opinion against the claim to be the most probative evidence in this matter. The examiner reviewed the entire record (including the Veteran’s statements and the newly received buddy statements), and opined that his low back disability is less likely than not related to service. Her rationale cited to the factual record, including the denial of low back complaints at the time of separation [while such lay report is not medical evidence that there was no chronic back disability at separation, the negative clinical evaluation of the spine is medical evidence that supports the conclusion reached, as are his high achievements in demanding athletic endeavors following the recently reported undocumented injury that may be conceded to have occurred, the 14 year postservice period during which there is no notation of back complaints, and the documented postservice injuries (and histories provided on those occasions). There is no competent (medical opinion) evidence of record that relates the Veteran’s current low back disability to his service; the Veteran has not submitted such opinion, and nothing in the record suggests such an opinion exists. In summary, the Veteran has presented inconsistent/conflicting lay accounts regarding onset of low back symptoms (in service versus many years after service) as well as inconsistent/conflicting reports of continuity of symptomatology (since service versus onset in 1998). As explained above, regarding the occurrence of an [unreported and undocumented then] injury in 1981, it may reasonably be conceded (strictly for purposes of this decision) that such occurred. However, regarding whether any such injury resulted in a chronic disability that appeared in service, or resulted in continuous) (since the injury) back complaints, the Board finds the negative findings on service separation examination and the reports of the history of the claimed disability documented contemporaneously in a clinical (treatment) context to merit greater probative weight than lay statements (reporting recollections of remote (25 to 35 years earlier) events in connection with a claim for compensation. The preponderance of the evidence is against a finding of continuity of low back symptomatology separation from service. Arthritis of the spine was not manifested in the first postservice year. And there is no competent evidence in the record linking the Veteran’s low back disability, first shown more than 14 years after his separation from service (following a work-related injury), to his service. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s current low back disability is etiologically related to his service. The appeal in this matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.