Citation Nr: 21006509 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-28 924 DATE: February 4, 2021 ORDER Service connection for a back disability is denied. FINDINGS OF FACT 1. No back injury or disease, and no chronic symptoms of lumbar degenerative arthritis, were manifested during service. 2. Lumbar degenerative joint disease (DJD), including symptoms related thereto, has not been continuous since separation from service and was not manifested to a compensable degree within one year of service. 3. The current back disability is not causally or etiologically related to active service, to include any event therein. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from March 1976 to February 1979. This matter is on appeal from a January 2011 rating decision. The procedural history detailed in the introductions of the June 2017 and June 2019 Board decisions are incorporated herein by reference. In June 2017 and June 2019, the Board remanded the issue on appeal, in pertinent part, for a supplemental VA medical opinion that addressed whether the current back disability was related to service; however, the Board had not assessed the credibility of the Veteran’s account that he experienced back pain and back injury during service with continuing symptoms since service. After reviewing relevant lay and medical evidence of record, in order to give the Veteran fair process notice, the Board sent a December 2020 letter to him advising him that that it planned to find that there was no back injury or back symptoms during service and no continuous back symptoms since service. The Board asked the Veteran to submit, within 30 days of the letter, all evidence and argument that shows in-service back injury and back symptoms and back symptoms since service and to explain why his account of in-service back injury and symptoms and back symptoms since service should be given more weight than other evidence of record showing no back injury during service, no back symptoms during service, and no back complaints or symptoms immediately after service. In January 2021, the Veteran responded to the letter. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Turning to the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). The Veteran is currently diagnosed with lumbar DJD and degenerative disc disease (DDD). Because the current diagnosis of lumbar DJD (arthritis) is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable. The Veteran contends that the current back disability is related to service. He contends that the low back experienced multiple impacts during service while he performed his duties as a heavy truck driver, and such impacts constituted back injury that later developed into the current back disability. After review of all the lay and medical evidence of record, the evidence weighs against a finding of low back injury during service or disease that was manifested during service, or chronic symptoms of lumbar spine arthritis that were manifested during service. The service treatment records (STRs), which are complete, are absent of any report, complaint, findings, diagnosis, or treatment for back problems. At service separation, the spine and musculoskeletal system were clinically evaluated as normal, and the Veteran checked “no” when asked if he then had or had ever had recurrent back pain. See January 1979 service examination report and service report of medical history; see also February 1979 service statement of medical condition (noting that there had been no change in medical condition since the separation examination). The STRs are complete which reflect that the Veteran was treated for orthopedic problems (i.e., right foot and leg symptoms) on several occasions during service without mention of back injury or symptomatology at those times, the spine was clinically evaluated at service separation and determined to be normal, and the Veteran was specifically asked if he had recurrent back pain at service separation and he denied having any such symptoms. As such, a back disability, to include any injury, disease, and chronic symptoms related thereto, is a condition that would have ordinarily been recorded during service, if it had in fact been present. Therefore, the lay and medical evidence generated contemporaneous to service is likely to reflect accurately the Veteran’s physical condition during service, is of significant probative value, and weighs against a finding of a back injury or disease during service, or chronic symptoms of lumbar degenerative arthritis during service. In January 2021, the Veteran wrote that he frequently encountered slopes in the ground and other debris while driving as a heavy truck driver during service and believed that navigating the rough terrain of wooded areas at night while driving a convoy with minimal lumbar support caused repeated impacts to the spine resulting in an in-service back injury. He also cited other in-service experiences such as operating a vibrating truck, lifting, pushing, pulling, cranking, loading, unloading, and carrying heavy cargo as activities that he believed caused stress on the spine. While the Veteran is competent to report that he drove over rough terrain during service, and to report his duties during service, he does not describe a back injury or symptoms of a back injury, and does not assert that there were chronic back symptoms during service. As stated above, the lay and medical evidence contemporaneous to service, including the Veteran’s own reports of symptoms and medical history, shows no back injury or disease or symptoms or treatment during service. The evidence includes the Veteran’s own denial, at the time of service separation, of ever having experienced recurrent back pain or of then having recurrent back pain. Under the facts of this case that include military duties involving the back but no actual back injury in service, no chronic symptoms in service, no back treatment during service, a history and findings of normal spine at the time of service separation, years with no treatment or reports of symptoms after service, and evidence of post-service back injuries, the Veteran is not competent to relate the current back disorder to the events during service. The Veteran’s recent supposition that the current back disability is related to navigating rough terrain as a heavy truck driver during service or other experiences and/or tasks during service does not account for a spine clinically evaluated as normal at service separation, his own denial of back symptoms at service separation, and multiple post-service work-related back injuries and the onset of back symptoms that occurred thereafter as documented in post-STRs. Additionally, arthritis is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person, includes various possible etiologies, only one of which involves trauma to a joint, and is diagnosable only by X-ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, the Veteran is not competent to opine as to the etiology of lumbar arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too “medically complex” for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or DJD to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The lay and medical evidence also weighs against a finding of continuous symptoms of lumbar degenerative arthritis since service, to include to a compensable degree within one year of service separation. The earliest evidence of back injury and back pain is in 1991, approximately 12 years after service separation. See February 1991 private health plan referral request (noting a referral diagnosis of low back strain due to a work injury); February 2001 (noting complaint of low back pain due to a lifting a door as a truck driver). At that time, the Veteran reported back pain associated with a post-service work-related back injury. The next mention of back problems is in 2001 and relates to a 2001 post-service back injury and resulting back pain. See, e.g., February 2003 postal service national limited duty and rehabilitation reassessment initiative. There was no mention of a prior in-service back injury or back symptoms when seeking treatment for back problems in 1991 or 2001. Such reported history that makes no mention of in-service back injury or symptoms or continuous post-service symptoms is of high probative value because the history was being presented by the Veteran, who would be motivated to provide an accurate medical history in order to receive efficacious medical treatment. Considered together with the evidence of no in-service back injury or back symptoms, the earliest post-service evidence of back pain was in 1991 and related to a post-service 1991 back injury. The next post-service evidence of back problems was a post-service work-related back injury with back pain in 2001. The absence of evidence of complaint, diagnosis, or treatment of a back disability for 12 years or more after service is another factor that weighs against a finding of service incurrence. While pursuing this claim for compensation, the Veteran has reported that he sustained back stresses and had back symptoms during service and has experienced back symptoms since service. He has also submitted lay statements dated in February 2011 and March 2011 from a former spouse, brother, and a former National Guardsman collectively reporting that back pain began during service and continued after service separation However, the lay and medical evidence contemporaneous to service showing no actual back injury or back symptoms until after various post-service work-related back injuries is deemed more credible and outweighs these later accounts of a back injury and back symptoms during service and back symptoms since service, which were first made many years after service separation when the memory was less reliable and are not credible and were written for the Veteran in support of his compensation claim. These statements from others are outweighed by the same evidence and factors discussed above that rendered the Veteran’s testimony and assertions not credible, including the inconsistent service history and findings, absence of complaints or treatment, histories presented by the Veteran for treatment purposes that omit such history of continuous symptoms, and the fact of post-service back injuries. Next, the lay and medical evidence weighs against a finding that the lumbar spine disability is otherwise causally or etiologically related to service. After review of the record and interview and examination of the Veteran, the July 2014 VA examiner opined that the back disability was less likely than not incurred in or caused by service. The July 2014 VA examiner reasoned that the Veteran did not have documented in-service low back complaints. The July 2014 VA examiner wrote that the Veteran’s back complaints became prominent in late 1990s when he was working for the Postal Service, and he had his first lumbar MRI after reporting significant back complaints which demonstrated lumbar DJD. The July 2014 VA examiner added that subsequent MRI had shown progression of the DJD. In a December 2014 addendum report, the July 2014 VA examiner stated that he had reviewed the August 2012 private treatment note stating that the Veteran’s back pain began in 2001 and that the Veteran has extensive degenerative lumbar DJD. The July 2014 VA examiner added that the note by the private medical provider further confirmed the prior medical opinion that the lumbar DJD was less likely than not related to service. The July 2014 VA examiner reasoned that there were no in-service back symptoms or signs, and the back problems began years after discharge. In a February 2015 addendum, the July 2014 VA examiner opined that the current back disability was less likely as not related to service because there were no in-service back complaints or treatment and the back complaints began years after discharge, so there was no nexus to service. The December 2014 VA examiner added that the back symptoms were secondary to lumbar DJD and there was no incident noted in the STRs that could have initiated the evolution of lumbar DJD. After review of the record, a December 2019 VA reviewer similarly opined that the Veteran’s current back disability was less likely than not incurred in or caused by service. In support of the medical opinion, the December 2019 VA reviewer reasoned that the STRs were silent for back complaints, examinations, diagnosis, diagnostic testing, or treatment plans, and the first noted back complaint post-discharge was in 2001, 22 years after service separation. The July 2014 VA examiner and December 2019 VA reviewer have medical training and expertise, had sufficient facts and data based on review of the record, and provided a sound rationale for the medical opinion; therefore, the Board finds that the collective July 2014 and December 2019 VA medical opinions are of significant probative value. Although neither the July 2014 VA examiner nor the December 2019 VA reviewer addressed the 1991 post-service back injury, the VA medical opinions are not rendered inadequate because the negative medical opinions relied on the absence of back injury, disease, or symptoms in service and the onset of back symptoms several years after service. The underlying rationale is supported by the record even if the VA examiners misstated the precise post-service year when back problems had their onset (i.e., stated that back problems began 22 years after service separation rather than 12 years after service separation). In a May 2011 letter, a private medical provider noted that the Veteran was well known to him and had chronic intermittent lower back pain that was well documented starting approximately in 2001. The May 2011 private medical provider wrote that the Veteran had reported that he may have injured the back during service. The May 2011 private medical provider opined that it was possible that the in-service back injury could have contributed to the current back disability. Although the May 2011 private medical opinion purports to link the current back disability to service, the statement is of lesser probative value. First, the private medical provider used speculative language when providing the medical opinion (i.e., it was possible that the in-service back injury could have contributed to the current back disability). When such speculative language is read in the context of this case, which the Board has found includes no back injury in service, not chronic symptoms in service, no back treatment during service, a history and findings of normal spine at the time of service separation, years with no treatment or reports of symptoms after service, and post-service back injuries, it is a speculative statement of mere possibility, and is not a statement of probability, so has no probative value to draw a nexus between current back disability and service. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that the veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative). Second, the May 2011 medical opinion was based on the Veteran’s report that he may have injured the back during service, and the Board has found that the Veteran’s account of an in-service back injury is inconsistent with the weight of the lay and medical evidence, so is not credible. As a result, the purported opinion relies on an inaccurate factual assumption of back injury during service, so is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). For these reasons, the Veteran's purported opinion that the current back disability was caused by service is of no probative value. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a back disability; therefore, the appeal must be denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J. PARKER Veterans Law Judge Board of Veterans’ Appeals L. HOWELL Veterans Law Judge Board of Veterans’ Appeals K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.