Citation Nr: 21006589 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-06 726 DATE: February 4, 2021 ORDER Entitlement to service connection for a back condition is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran’s degenerative arthritis of the spine with left lower extremity radiculopathy manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the spine with left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a Board virtual hearing in July 2020. A transcript of the hearing has been associated with the claims file. The Veteran’s claim was before the Board in October 2020 and was remanded for additional development. The directives having been substantially complied with the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Entitlement to service connection for back condition The Veteran contends that service connection is warranted for a low back disability. The Veteran reports that his ongoing back pain is related to service and that he has had ongoing symptomology since service. The Veteran testified in July 2020 to ongoing low back symptomology after an in-service injury shoveling gravel and experiencing severe pain that has gotten worsen over time. Post-service the Veteran reported ongoing use of over the counter medication and anti-inflammatories with ongoing symptomology. Further, the Veteran testified that at discharge from service he reported his ongoing back injury and prolonged recovery with associated symptomology. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a low back disability that began during service, manifested during the applicable presumptive period, or is at least as likely as not caused by an in service injury or disease. The Veteran has a diagnosis of degenerative arthritis of the spine with left lower extremity radiculopathy. The Veteran’s service treatment records (STRs) have been associated with the claims file. During service in July 1965 the Veteran was seen in the emergency room for an injured back. On examination he denied pain and no abnormality or emergency was noted and an orthopedics consult was recommended. Then, the Veteran was seen in the emergency room in February 1968 for a back sprain after developing pain from shoveling gravel. The Veteran reported left L-5 pain radiating down his left leg to his ankles, that had not been relieved with bed rest, heat and analgesics. The Veteran reported pain which increases with bending and stretching and started the day before after shoveling. Physical examination noted no muscles spasms, tenderness at L5-S1 area, a positive straight leg test at 45 degrees was noted with increased pain with dorsiflexion of the foot. No muscle weakness or hypesthesia was noted. An orthopedics consult was recommended. A probable herniation of nucleus pulposus of noted. The Veteran was prescribed bed rest, heat and to return in several days and no duty. An orthopedics consult in February 1968 noted the Veteran was seen by orthopedics for a suspected herniation of nucleus pulposus left, and evaluation noted that no disease was found, and there was no herniation of nucleus pulposus of the left side. Imaging of the lumbosacral spine noted that no significant bony abnormality was noted. Treatment records note in February 1968 the Veteran was given a temporary physical profile for 30 days with no lifting over 5 pounds and no bending. The Veteran was then seen by orthopedics for a follow up in March 1968 and reported after 2 weeks of bedrest his symptoms had resolved. The Veteran reported no problems since and physical examination noted no pain, no muscular weakness and no deep tendon reflex deficits. It was noted no ongoing pathology was found and the Veteran was found fit for full duty. At separation in March 1968 on the report of medical examination clinical evaluation of the spine and musculoskeletal system was normal. Examination noted no significant illness or injury during service. At separation in March 1968 on the report of medical history the Veteran denied swollen or painful joints, arthritis, bone joint or other deformity and denied recurrent back pain. Based on the Veteran’s statements and treatment records the Board finds an in-service low back injury but that residual symptoms and limitations of function were not present at the time of discharge. The Veteran previously submitted a claim for a low back condition in January 1987 which was denied when the Veteran failed to appear for a VA examination. The Veteran was afforded a VA examination in October 2012. The Veteran reported an in-service injury in 1967 which resolved and that he began seeking treatment in the early 1980s using muscle relaxers and stretching. The examiner noted degenerative disc disease of the lumbar spine with left leg radiculopathy. The Veteran reported flare ups that make getting out of bed difficult. Functional loss was noted in that the Veteran has less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight bearing. Localized tenderness was noted with guarding and/or muscle spasms that do not result in abnormal gait or spinal contour. Muscle strength testing was normal, with no muscle atrophy. A reflex exam was normal. A sensory exam was normal. A left straight leg test was positive. Mild left lower extremity radiculopathy was noted with involvement of the L4/L5/S1/S2/S3 nerve roots. No additional neurologic abnormalities or IVDS were noted. The Veteran occasionally uses a cane. Imaging noted arthritis. The examiner noted the Veteran’s back condition impacts his ability to work in that he has not worked as a chemistry courier due to his back since 2010. The examiner found that the Veteran’s current back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s current back condition is not the same condition that he was treated for in-service. The examiner noted no documented evidence that the Veteran’s back condition continued in the decade post-service. A private opinion from May 2015 has been associated with the claims file. The Veteran’s treating doctor noted that he first presented with symptoms of lower back pain in April 2013. The Veteran reported severe pain which with aggravation presents as aching, stabbing and pain radiating down his legs. The Veteran reported ongoing pain since February 1968 after an in-service injury. The private opinion noted that in-service X-rays diagnosed the cause of this pain as a slipped and ruptured lumbar disc. The Veteran was hospitalized and had difficulty walking for 2 weeks and was told not to lift anything over 5 pounds for more than 5 months. The private opinion noted that currently on examination the Veteran consistently reports severe pain of the lower back radiating down both legs with a normal gait. Objectively the Veteran presents with severe hypertonicity of the erector spinae group, hyperlordosis, multiple subluxations, L5 spondylolisthesis, sacroiliac ligament laxity, flexion malposition and laterality activator assessment. The Veteran reports ongoing back pain which is aggravated by increased physical activity. The Veteran’s private treatment provider noted after a review of the records of the Veteran’s original injury in 1968 that his current pain and aggravation in his low back is directly related to the injury in 1968 during service. The Board finds this private opinion is entitled to less probative weight as the private opinion failed to provide a thorough and reasoned rationale for the conclusions reached. The treating doctor noted in-service X-rays diagnosed the cause of this pain as a slipped and ruptured lumbar disc, however this conclusion is factually inaccurate. In-service X-ray imaging of the lumbosacral spine in February 1968 noted no significant bony abnormalities were noted, and the radiographic report was normal. The Board has considered the private opinion but finds such is entitled to less probative weight. Then, the Veteran was afforded a VA examination in October 2020. The Veteran reported first injuring his back in service during shoveling work and that he was on best rest for 2 weeks. The Veteran reports that the pain resolved but he was very cautious with his back and would occasionally have flare ups that required him to stay in bed for several days for the symptoms to resolve. The Veteran reports that at times he was prescribed pain medication and had X-rays done about 10 years ago. The Veteran reports flares that occur every few weeks, and one recently occurred this week that required him to lay flat on his back and take pain medication. At times the Veteran reports needing assistance from his wife in getting up from the couch or a seated position. The Veteran reports ongoing symptoms of aching with episodes of sharp pain and occasional radiating pain down his left leg. The examiner noted a thorough review of the Veteran’s service treatment records and claims file. The Veteran has a diagnosis of degenerative arthritis of the spine with left lower extremity radiculopathy. Flare ups were noted every few weeks resulting in the Veteran needing to lay flat on his back and take pain medication. Range of motion testing noted forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees and right and left lateral rotation to 25 degrees. Pain was noted which causes functional loss. Pain on weight bearing was noted. Repetitive use testing did not result in any additional loss of function. Pain, fatigue and a lack of endurance significantly limit functional ability with repeated use over time. Guarding was noted that does not result in an abnormal gait or abnormal spinal contour. Muscle strength testing noted as 4/5 with reduced strength in left ankle plantar flexion, ankle dorsiflexion and great toe extension. No muscle atrophy was noted. A reflex exam noted left knee hypoactive deep tendon reflexes. A sensory exam noted left thigh/knee and lower leg ankle decreased sensation to light touch and an absent sensation to light touch bilaterally in his foot/toes. Mild left lower extremity radiculopathy was noted. No ankylosis or IVDS was noted. The Veteran reports occasional use of a cane. Imaging noted arthritis. The examiner noted that the Veteran’s back condition impacts his ability to work in that he has difficulty bending and lifting. The examiner noted a thorough review of the in-service treatment records including the July 1965 emergency room note where the Veteran was seen for back pain with no abnormalities and the February 1968 STRs noting that the Veteran was seen in the emergency room for a back sprain after doing shoveling work the day before. The Veteran reported low back pain radiating into his left lower extremity all the way to his ankle. The Veteran was diagnosed with a “probable HNP” and placed on bedrest. An orthopedic consult was ordered and lumbosacral X-rays in February 1968 note no significant abnormality. An orthopedic consult noted that there was no proven or found herniation of nucleus pulposus, left. A follow up orthopedic consult noted the Veteran was observed for HNP in February 1968 with 2 weeks bedrest and his symptoms had resolved with no ongoing problems. Physical examination noted a negative straight leg raise, no sensory loss, no muscular weakness and no deep tendon reflex deficit. The Veteran was deemed fit for full duty and noted to have “no disc disease found”. Then at separation in March 1968 the Veteran reported his health was excellent and noted no recurrent back pain. A report of medical examination at separation in March 1968 noted no back complaints and the examiner noted no other significant illness or injury during the current term of service and no aggravation of a pre-existing condition. The examiner also noted a review of private treatment records and the Veteran’s lay statements noting ongoing reports of back pain and pain radiating to the thigh. The examiner found that it is less likely than not that the Veteran’s current back arthritis was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that while the Veteran’s STRs do document a back injury after shoveling gravel in February 1968 the Veteran was placed on bedrest for 2 weeks and an orthopedic followup in March 1968 noted no objective finding or residuals of a back condition, and a neurological exam was normal. Further, a normal motor exam, negative straight leg raise test and normal deep tendon reflexes were noted. In addition, at separation the Veteran did not note any residual back complaints of the injury that occurred one month prior. The Veteran reported currently on the present examination that his symptoms had resolved in-service but that he experiences periodic flare ups since service and would get pain medication and lay flat on his back for several days waiting for his symptoms to resolve. Private treatment records note a history of back pain noted as early as 2004, and the Veteran was seen periodically for such. In 2011 he was seen by neurosurgery and diagnosed with facet syndrome and degenerative disc disease with lumbago. The examiner noted that examination of the Veteran is consistent with this degenerative process. The examiner found that if the Veteran had had a herniated nucleus pulposus injury in 1968 then from a medical standpoint it would be expected that he would have had a degenerative process that would have manifested itself within 20 years of discharge from active service which did not occur. It is not until 2011 that the Veteran was noted to have degenerative disc disease with facet syndrome. The examiner found that such is a process of aging and is not due to a remote injury more than 40 years ago in-service. The examiner noted that it is very common for patients to associate current pain with episodes of prior pain in the same region, however this does not mean that the pain being experienced at this time is due to the previous remote episode of pain. Herein, the etiology is of a different origin and is related to the multilevel degenerative changes that have developed over time due to age and not due to a degenerative process due to trauma. Any traumatic effects would have been evident within 15 to 20 years after the injury. The examiner found that the evidence of record does support a finding that it is at least as likely as not that the Veteran’s current back condition was caused by or a result of his injury in 1968. VA and private treatment records have been associated with the claims file. A review of these records shows that the earliest self-reports of back symptomology began in 2004. Private treatment records note reports of back pain at times. August 2011 treatment records note reports of lumbar pain radiating around the suprapubic area with proximal thigh pain. A June 2011 MRI noted moderate lateral recess and moderate spinal stenosis present at L4-5 bilaterally and to a lesser degree at L2-3. Mild displacement of the associated L3 nerve roots and mild disc degeneration and annulus bulging at L3-4 was noted. These treatment records do not contradict the VA examination and are absent indications between the Veteran’s current back disability and an in-service disease or injury. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a back disability is warranted. The Board concludes that service connection for a back disability on a direct basis is not warranted as the Veteran’s current low back disability was not caused by service. The Veteran’s lay statements regarding his current symptoms, in-service events and ongoing symptomology are credible. While the Veteran reports that his current back disability is generally related to service and an in-service injury the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence including specifically the VA examination in October 2020 is entitled to significant probative weight. The examiner noted a thorough review of the Veteran’s claims file including prior opinions, lay statements and treatment in-service and since. The Veteran has a diagnosis of degenerative arthritis of the spine with left lower extremity radiculopathy. The examiner found that it is less likely than not that the Veteran’s current back arthritis was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that while the Veteran’s STRs do document a back injury after shoveling gravel in February 1968 the Veteran was placed on bedrest for 2 weeks and an orthopedic followup in March 1968 did not note any objective finding or residual back condition. Further at separation the Veteran did not note any residual back complaints of the injury that occurred one month prior. The examiner noted that private treatment records note a history of back pain as early as 2004, and the Veteran was seen periodically for this. In 2011 he was seen by neurosurgery and diagnosed with facet syndrome and degenerative disc disease with lumbago. The examiner found that examination of the Veteran today is consistent with this degenerative process. The examiner found that if the Veteran had had a herniated nucleus pulposus injury in 1968 then from a medical standpoint it would be expected that he would have had a degenerative process that would have manifested itself within 20 years of discharge from active service. Here, clearly the Veteran did not have such. It is not until 2011 that the Veteran was noted to have degenerative disc disease with facet syndrome. The examiner found that such is a process of aging and is not due to a remote injury more than 40 years ago in-service. The examiner noted that it is very common for patients to associate current pain with episodes of prior pain in the same region, however this does not mean the pain being experienced at this time is due to the previous remote episode of pain. Herein, the etiology is of a different origin and is related to the multilevel degenerative changes that developed over time due to age and not due to a degenerative process due to trauma. Any traumatic effects would have been evident within 15 to 20 years after the injury. The examiner found that the evidence of record does support a finding that it is at least as likely as not that the Veteran’s current back condition was caused by or a result of his injury in 1968. As such the Board finds that the Veteran’s current back disability is less likely than not related to active service. The Board finds that direct service connection is not warranted as the Veteran’s current low back disability was not onset in or caused by service. The Board notes that STRs note in March 1968 on the report of medical history that the Veteran denied swollen or pain joints, arthritis and a bone or joint deformity as well as recurrent back pain and the March 1968 normal clinical evaluation of the spine and musculoskeletal system was normal. The Board has considered the Veteran’s lay statements and testimony however, the Board gives more probative weight to the competent medical evidence especially the October 2020 VA examination. As such the Board finds that the Veteran’s current low back disability is less likely than not caused by active service. As to presumptive service connection the Veteran’s degenerative arthritis of the spine did not manifest until many years post-service. The Board concludes that while the Veteran has arthritis, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did these manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran’s arthritis was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. At separation on the report of medical examination in March 1968 clinical evaluation of the spine and musculoskeletal system was normal. Service records do not support an onset of the Veteran’s arthritis in active service. Based on the probative evidence of record the Board finds that the Veteran’s arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records note degenerative changes of the spine in 2010 which is over 40 years after separation from his service in 1968. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. (continued next page) In conclusion, the Board finds that the weight of competent and credible evidence is against the Veteran’s claim for service connection for a back condition. The benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.