Citation Nr: 21006357 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-42 142 DATE: February 3, 2021 ORDER Service connection for a back disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current back disorder that began during active service or is otherwise related to an in-service injury or disease. 2. Arthritis of the lumbar spine was not shown as chronic in service, and is not shown to have become manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology has not been established by credible and probative evidence. CONCLUSION OF LAW The criteria for an award of service connection for a back disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1975 to August 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. In February 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In December 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back disorder is denied. The Veteran contends that her current back problems are related to an injury to her back sustained during military service. See April 2019 statement (“My back injury occurred while on active duty stationed at Ft Dix, NJ in 1976. I fell off a military vehicle.”). She essentially explains that she had intermittent pain in her back since service and prior to a post-service work injury that occurred in April 2005, which aggravated her existing back pain. See February 2019 Board Hearing Transcript at 3, 6-7 (describing back pain “during service and after” and explaining that her 2005 work injury “made it extensively worse”). 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). Additionally, certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Veteran has current diagnoses of osteoarthritis, degenerative joint disease, and spondylosis of the lumbar spine. See, e.g., September 2014 and May 2019 X-rays of the lumbar spine; July 2005 private treatment record (“MRI shows DJD of the lumbar spine.”). Additionally, private treatment records also reflect diagnoses of spinal stenosis and disc bulge of the lumbar spine. See September 2018 lumbar spine CT. Review of the service treatment records reflects that the Veteran did indeed complain of back pain in service. In November 1977, she was issued a physical profile for limited duty due to “lumbago.” According to the service treatment record, she complained of back pain for two days and was assessed with lumbosacral strain. She was seen again a few days later in November 1977 for back pain of five days duration, and the assessment rendered was “low back pain.” However, at her separation examination in July 1978, the examiner noted a “normal” clinical evaluation of the spine. In the contemporaneous Report of Medical History, the Veteran expressly denied a history of “recurrent back pain.” As the Veteran has a current back disorder and evidence shows that she had a back strain in service, the Board must ascertain the likelihood that her current disorder began during service or is otherwise related to an in-service injury, event, or disease. In this regard, the Veteran was provided with a VA examination in July 2013, and the VA examiner specifically determined that “[h]er current back condition is not related to military service.” The VA examiner explained that the Veteran’s in-service low back strain in November 1977 was a “condition that resolved,” citing the absence of back-related complaints at the time of separation from the military. The VA examiner further explained that “[a] review of the [claims] file shows that this Patient sustained a work related injury to the lower back in 2005. This was a Worker’s Compensation claim.” The VA examiner issued a negative nexus opinion, finding that it was “less likely than not” that the Veteran’s claimed back condition was “incurred in or caused by the in-service injury, event, or illness.” The Board recognizes that the Veteran has a provided a lay opinion that her current back condition is related to service. While competent to report having experienced symptoms of back pain since service, she is not shown to have the requisite training or experience necessary to provide a diagnosis in this case or to make a determination that earlier symptoms of back pain were manifestations of her current disorders. The issue regarding the etiology of her current diagnoses (osteoarthritis, spondylosis, degenerative joint disease, stenosis, and disc bulge) is medically complex, as it involves interpretation of medical imaging of the spine, amongst other medical considerations regarding causational processes for those abnormalities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Veteran’s statements with respect to continuity of symptoms since service are contradicted by her own in-service report that she did not have “recurrent back pain” at the time of her separation from service in July 1978. Her claim of longstanding back pain since service is likewise inconsistent with statements she provided when seeking treatment for an on-the-job back injury in 2005. In this respect, in early April 2005, at the time of her work injury, she described pain “starting suddenly with lifting[] while at work” and expressly denied a diagnosis history of lower back strain. In late April 2005, she reported “upper lumbar and lower thoracic pain x 3 wks” with an “[o]nset [] lifting 7 gal[lon] bucket of oil.” Significantly, at that time, the notes indicated a referral due to “back pain post lifting injury.” April 2005 private treatment record (emphasis added). These contemporaneous records all suggest back pain with an onset in 2005, at the time of her work injury. The Board also finds it important that private and VA treatment reports consistently describe on onset of back-related pathology since the 2005 work injury and are silent for any complaints of preceding back pain dating back to service. See July 2005 private treatment record (“back injured at work 4/1/05”); August 2005 private treatment record (“lower l[ef]t back area pain (p[atien]t got hurt on the job 3 months ago. . . Left lumbar pain since April. Fall on the job. Not improving.”); August 2005 (“H[a]s work related injury.”); March 2006 private treatment record (noting “f[ollow-up] on back injury/work comp” and assessing spinal stenosis); April 2006 private treatment report (“Low Back Pain for 1 year, exacerbated yesterday when helping clean pots and pans at work.”); April 2006 VA treatment record (“Pt is here for back pain, civ[ilian] employee in the nutrition care, cook shift leader, hurt her back [April 12th] by lifting & twisting carrying heavy pots & pans, . . . says she already ha[d] a old injury work related 2005”); May 2006 VA treatment record (“Pt [complains of] of L[ower] B[ack] P[ain], for approx one year, after lifting injury. Pt was carrying heavy container of oil last April and felt back pain. Workman’s Comp claim filed.”); March 2008 private treatment record (listing the reason for appointment as “back problems[,] work injury referred by occupational health”); June 2008 private treatment record (“[Veteran] injured her back in 2005”); November 2008 VA treatment record (listing her past medical history as including “chr[onic] L[ower] B[ack] P[ain] but has had [on-the-job injury] for back pain”); April 2009 private treatment record (“workers comp [follow-up] . . . Back pain is worse.”); November 2009 private treatment record (“previous injury on the job and need for [follow-up] care.”); March 2010 VA treatment record (“She reports injuring her back on the job”); March 2010 VA treatment record (“in 2005[,] injured her back lifting”); March 2010 VA treatment record (“retired this year from food service, injured her back at work”); August 2010 private treatment record (noting “Retiree with 2005 back injury at work” and “Continuing low back pain”); April 2011 private treatment record (worker’s compensation follow-up noting “[s]he still has lots of back pain”); October 2012 VA treatment report (noting “back pain: on the job injury”); April 2015 VA treatment record (noting spine X-rays performed due to back pain after a motor vehicle accident); September 2018 VA treatment records (noting lumbar spine CT images performed due to “motor vehicle collision”). It would be expected that if the Veteran had intermittent back pain stemming from an original injury in service and prior to her work injury, she would have included that pertinent information when she was being continuously treated for her back from 2005 through the present. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Unfortunately, the Veteran’s lay assertions of continuing symptoms of back pain since service are less credible and persuasive in light of the other evidence of record and are outweighed by the other evidence. The examiner’s opinion, on the other hand, is highly probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the preponderance of the evidence is against a finding that any of the Veteran’s current back disorders are related to service. Moreover, service treatment records are silent for arthritis of the lumbar spine in service and, as discussed above, there is a lack of credible evidence of continuing pain since service. Given the VA examiner’s express finding that the in-service back injury resolved, the Board finds that any current arthritis-related diagnoses were not shown as chronic in service, are not shown to have become manifest to a compensable degree within a presumptive period, and were not otherwise noted in service with attributable continuity of symptomatology. As the weight of the evidence is against the Veteran’s claim on both a presumptive and direct basis, the Board must find that the criteria for an award   of service connection for a back disorder have not been met. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow 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.