Citation Nr: 21006427 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-39 072 DATE: February 4, 2021 ORDER Entitlement to service connection for residuals of low back injury, status post-operative, is denied. FINDING OF FACT The weight of the evidence of record is against a finding that the Veteran’s currently diagnosed post-operative low back disorder had onset in active service or is otherwise related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of low back injury, status post-operative, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.655(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1966 to June 1968. Afterward, he was a member of a State Army National Guard (ARNG) from December 1980 to May 1981. The Board remanded the case to the Agency of Original Jurisdiction (AOJ) in February 2019 for additional development. See 02/19/2019 BVA Remand. As discussed further in the decision below, the Board finds substantial compliance with the duty to assist the Veteran and the Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also 38 C.F.R. § 3.159(c). Entitlement to service connection for residuals of low back injury, status post-operative, is denied. Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease 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). Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. Discussion The Veteran contends that he sustained a low back and upper neck injury in an off-base motor vehicle accident (MVA) in April 1968 while based in Europe. Per the Veteran, he was treated at a civilian hospital where he was given pain medications, and that afterwards he went to sick call where he was given more pain medication. He contends further that his first post-service treatment was in 1971 or 1972 at a VA facility. See 10/04/2018 Hearing Testimony. The AOJ made multiple attempts to obtain the Veteran’s service treatment records (STRs) that were associated with his active service, but the inquiries were unsuccessful. The Veteran noted on his formal claim that he was treated at a military hospital in Europe. Hence, the AOJ efforts included a request to search for any records related to treatment at a military hospital in Europe. See 01/15/2014 VA 21-3101; 07/21/2015 Notification. The post-remand efforts by the AOJ did not result in records that contained any information not already considered by the AOJ. Based on the evidence of record, however, the AOJ did arrange for a fee-basis VA examination to assist the Veteran, and that he was informed that an examination had been requested. See 11/26/2019 Exam Request; 11/27/2019 Subsequent Development Letter. The AOJ was informed by the designated examining facility that the Veteran failed to report for the examination. See 12/19/2019 Exam Request; see also 05/27/2020 SSOC. In a June 2020 response, the Veteran acknowledged the AOJ decision noted in the SSOC, and he requested a decision on his claim. He did not dispute the notation in the SSOC that he had failed to report for a scheduled examination. See 06/8/2020 Correspondence. When a claimant, without good cause, fails to report for a scheduled examination in conjunction with an original claim for benefits, the claim shall be decided on the basis of the evidence of record. 38 C.F.R. § 3.655(b). In this case, the Board finds that the preponderance of the evidence of record is against the Veteran’s claim. The Veteran is fully competent to attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). Hence, his lay written assertions and sworn hearing testimony is competent evidence that he sustained a low back injury while serving in Europe. Although his military personnel records (MPRs) associated with his active service are not available, the ones from his brief membership in the ARNG note that he was approved for a secret security clearance while based in Europe. See 11/04/2019 MPR, 2nd Entry, P. 11. Hence, there is corroborative evidence that he served a tour in Europe. The Board acknowledges that it may not base a negative substantive finding on the absence of evidence. Nonetheless, while the Board finds no documentary or other evidence that contradicts or disproves the Veteran’s lay assertion of an in-service injury, the Board does find that the preponderance of the evidence is against a finding of any residuals of such an in-service injury. In making this finding, the Board notes the April 2018 nexus opinion of the Veteran’s VA primary care physician (PCP). In the opinion (05/21/2018 Medical Treatment-Government Facility), the physician notes that she had treated the Veteran for more than one year, and that she had become familiar with the Veteran’s active duty medical history. She noted further that she had not reviewed the Veteran’s STRs because of unavailability. She opined that it was at least as likely as not that in-service trauma has contributed, caused, or aggravated the Veteran’s chronic low back pain. She offered no rationale. Id. The Board notes that the Veteran’s PCP did not explain how she became familiar with the Veteran’s active duty medical history. Since she conceded that she had not reviewed any records, the logical inference is that she relied on the history that the Veteran himself reported to her. A physician may properly rely on a patient’s reported history in formulating a diagnosis and opining on etiology, but the efficacy of any resultant diagnosis or opinion on etiology will be no better than the history on which it is based. See generally Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Board acknowledges the Veteran’s assertion that his in-service MVA supports his claim. See 11/21/2012 NOD. However, even if an in-service injury is conceded the record fails to support the finding that a current disability is due to such incident. To the extent the Veteran has expressed an opinion on etiology, the Board finds it incompetent and non-probative, as opining on such matters requires medical training. In this case, there is no evidence that the Veteran has medical training. See Jandreau, 492 F. 3d 1372, 1377; see also 38 C.F.R. § 3.159(a)(1). As noted earlier, the Veteran testified that he was treated at a VA facility in 1971 or 1972. The records from the identified facility do not contain any records of treatment in the 1970s. Correspondence in the claims file reflects that the Veteran withdrew from school in 1970 due to an unspecified accident. See 11/03/1970 Correspondence. Subsequent correspondence reflects that he subsequently resumed his educational pursuits. The Veteran enlisted in the ARNG in December 1980. On his October 1980 Report of Medical History for his enlistment examination, he denied any history of recurrent back pain. See 08/14/2014 STR-MED, P. 5. Concerning that Form and the query on bone, joint, or other deformity, the Board finds as fact that the “X” is placed more in the “No” Column than the “Yes” column, thereby denying any prior related history. The only prior hospitalization that the Veteran noted was in April 1975 in his home state for burns. Id. P. 6. The December 1980 Report of Medical Examination for Enlistment, ARNG, reflects that the Veteran’s spine was assessed as normal. See 08/14/2014 STR-MED, P. 7. The Board affords far greater weight to statements the Veteran made closer in time to the claimed events that those dated more recently. In 1981 the Veteran sought and obtained a Hardship Discharge from his State ARNG, not for reason of any disability or physical inability to perform his duties but because it interfered with his ability to operate his business. See 11/04/2019 MPR, 2nd Entry, P. 51, 53. Thus, the documentary evidence of record shows that in 1980 the Veteran denied any prior history of recurrent back pain, his spine was assessed as normal, and he was found otherwise physically qualified to perform the duties of a national guardsman. VA outpatient records note that the Veteran complained of low back pain onset in June 2010, an MRI examination revealed significant pathology, and he underwent lumbar spine surgery in October 2011, from which he developed osteomyelitis. See 10/15/2012 CAPRI, 1st Entry, P. 64; 2nd Entry, P. 9. The Board must assess the credibility and probative value of evidence. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Further, the Board is not required to accord more weight to the opinion of a treating physician, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), as the Court of Appeals for Veterans Claims has explicitly “rejected the broad application of the ‘treating physician rule’ that gives the opinions of treating physicians greater weight in evaluating veterans’ claims.” Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993)); see Guerrier v. Brown, 7 Vet. App. 467 (1993). Hence, while the Board is not free to ignore the opinion of medically trained treating personnel, neither is it required to accord it substantial weight. See generally Guerrieri, 4 Vet. App. at 471-73; Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Veteran’s VA primary care physician did not note or discuss any of the medical history set forth above, to include what is documented in his VA outpatient records. Hence, the Board finds her opinion to have been based on an incomplete history as reported to her by the Veteran and an absence of review or discussion of the Veteran’s medical records. Thus, the Board accords her opinion de minimus probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no evidence that documented degenerative disease manifested at least to a compensable degree within one year of the Veteran’s separation from active service. Hence, the Board finds no factual basis for presumptive service connection due to a chronic disease. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Neither is there evidence of chronic low back pain at the time of his separation from active service. Indeed, 12 years after his separation from active service he denied a history of back pain. Thus, the Board finds no factual basis to allow the claim on that basis. See generally Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Based on the discussion of all of the evidence of record as set forth above, the Board finds that, resolving reasonable doubt in the Veteran’s favor based on his lay testimony, there was an in-service MVA and that there is a currently diagnosed post-operative low back disorder, the preponderance of the evidence of record is still against a finding that his currently diagnosed post-operative low back disorder is causally connected to any in-service event. 38 C.F.R. §§ 3.102, 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. Gilbert, 1 Vet. App. 49, 57-58; see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.