Citation Nr: 21007608 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-35 400 DATE: February 10, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine (a lower back disability) is denied. FINDING OF FACT The evidence of record does not show that a chronic low back disorder was manifest during active service nor that arthritis of the lumbar spine was manifest within a year of discharge, and the preponderance of the evidence fails to establish that a present low back disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a lower back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1965 to February 1968. The matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) in a June 2010 videoconference Board hearing. A transcript of that hearing is of record. The issue was five times before the Board: in October 2010, November 2011, April 2014, March 2018, and May 2020. In November 2011, the Board denied the issue, and the Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims. In July 2013, the Court issued a Memorandum Decision, vacating the Board’s November 2011 decision, and remanded the matter to the Board for additional development. The issue was remanded in October 2010, April 2014, March 2018, and May 2020. The most recent May 2020 remand mandated that the RO retrieve any outstanding treatment records and provide the VA examination. In June 2020, the RO received notice that a thorough search of the Terre Haute/Indianapolis VAMC electronic and archived record systems revealed no records responsive to the document request. Regarding the retrieval of any private treatment records, in July 2020, the Veteran’s attorney provided correspondence noting no private medical records and that the Veteran had only been treated at VA medical centers. The Board finds that there has been substantial compliance with the prior remand orders as to these matters. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Regarding obtaining medical records from the Federal Bureau of Prisons, the evidence of record shows that the Veteran was first incarcerated at the Ohio County Correctional Facility in Wheeling, West Virginia, in March 1970, more than a year after leaving service. Further, he was incarcerated at various times between May 1970 to May 1982 at other state/local departments of rehabilitation and correctional facilities. At various times between August 1984 and October 1995, he was incarcerated at the Federal Correctional Institution (FCI Sandstone, Minnesota and FCI Milan, Minnesota), the U.S. Penitentiary in Terre Haute, Indiana, the Federal Prison Camp Medical Service, and the FPC in Ashland, Kentucky. During the appeal, the RO attempted to obtain any outstanding treatment records from the Federal Bureau of Prisons (FBP). In the most previous remand, the RO was instructed: “to make arrangements to obtain the Veteran’s complete medical treatment records … from the Federal Bureau of Prisons.” In July 2020, the Veteran’s attorney provided an executed DOJ-361 Form, Certification of Identity, and a detailed “Summary of Research to find [the Veteran’s] Prison Records from his incarceration in the 1980s.” The summary noted the efforts taken by the attorney to obtain the Veteran’s prison treatment records during the 1980’s and a request for additional VA assistance was provided. The Board notes that the available record includes a copy of an August 2018 FBP letter to the attorney noting 36 pages of responsive medical records were located pertaining to the Veteran’s back injury and were released in response to a Freedom of Information Act (FOIA) request. It is additionally noted that applicable law provides that “[i]nformation that concerns an individual and is contained in a system of records maintained by the [Federal Bureau of Prisons] shall not be disclosed to any person, or to another agency except under the provisions of the Privacy Act, 5 U.S.C. 552a, the Freedom of Information Act, 5 U.S.C. 552, and Departmental regulations.” 28 C.F.R. § 513.34. Although the Veteran’s attorney has provided a summary of activity noting efforts since August 2018 to obtain “missing medical records and X-ray report from the 1980’s” from the FBP, there is no indication of any unresolved FOIA request or appeal for such records maintained by the FBP. Therefore, the Board finds that further VA efforts as to the matter would be futile. The Board notes that in correspondence dated in October 2020 the Veteran’s attorney requested copies of a September 2020 VA examination report and requested a 60-day extension of time to respond from the date the records were provided. Subsequent VA correspondence shows the records were provided on November 2, 2020, and that on November 4, 2020, Veteran and his attorney were notified that additional argument or evidence could be submitted within 90-days from the date of the letter. As such, the Board finds that no further action as to these matters is required. Entitlement to service connection for a lower back disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his diagnosed lower back disability is a result of military service, which has continued. Specifically, he avers that he sustained a back injury while lifting tires and other heavy equipment in service. The Veteran’s service treatment records (STRs) dated in April 1966 show that the Veteran was treated at an out-patient clinic at the US Army Hospital at Bremerhaven, Germany, for a low lack strain caused by heavy lifting. He was treated with analgesics, muscle relaxant, and two days of diathermy and massage of the lumbar area. Otherwise, the STRs are absent other treatment, complaints, or diagnoses of lower back disorders. His separation physical in January 1968 notes no complaints of a lower back disorder. In fact, the Report of Medical Examination noted normal spine and other musculoskeletal regions, and he denied having experienced arthritis or rheumatism and having worn a back brace or support. The Veteran’s post-service treatment records contain VA examination dated in October 1979 and November 1990, wherein he did not report back pain. The Veteran, however, reported long hours as a truck driver caused his hemorrhoids to protrude. Furthermore, his truck driving job involved “constant standing, lifting for eight hours per day.” Similarly, treatment records received from the U. S. Department of Justice/FBP note various Report of Medical History, dated in July 1988, August 1989, and November 1989, wherein the Veteran denied arthritis and recurrent back pain. During a December 1994 review of systems history, the Veteran reported no history of back pain and denied swollen, tender erythematous joints or decreased range of motion. A December 19, 1994, to December 31, 1994, period of hospitalization for illegal substance abuse detoxication noted the Veteran was diagnosed with Axis I cocaine dependence, opiate dependence, alcohol abuse, and Axis III diagnosis of gastritis, hemorrhoids, purified protein derivative, and chronic back pain. A progress note dated December 27, 1994, indicated he was transferred from the detox unit and that “complaints appear to be of low back pain. [The] pain appears to be getting worse now that Veteran is off opiates and cocaine.” Treatment records dated in February 1995 note the assessment of lower back pain chronic. In March 1995, during an Inmate Clinical Evaluation, the Veteran’s history of low back pain and scoliosis was noted, as well as X-rays of the lower pain. Treatment notes dated in May 1995 indicate the Veteran’s reported a history of lumbar pain. X-ray findings revealed degenerative disease lumbosacral spondylosis of discogenic disease L3-L4 and L4-L5. The diagnosis was degenerative disc changes at L3-L4 and L4-L5. Subsequent treatment notes show diagnoses of arthritis lumbar spine and DJD in the lumbar spine in June 1995 and October 1995. During a January 1997 clinical visit resulting from an automobile accident three weeks earlier, the Veteran reported experiencing lower back pain. Clinical findings showed disc space narrowing and small anterior osteophytes of the L3-4 and L4-5 in the lumbosacral spine. The clinician’s impression was degenerative disc changes at L3-4 and L4-5, especially L4-5. In June 2001, during a clinical visit for a right wrist disability, the Veteran reported having arthritis in the back, and the past medical history revealed degenerative joint disease (DJD). Additional post-service service treatment records continued to show the Veteran’s complaint of chronic back pain. Treatment records dated in August 2008, November 2008, and June 2013 indicate the Veteran’s report of in-service back injury and having had low back pain since. During a September 2009 clinical visit, the Veteran reported a history of sprained back while on active duty pre-1968 while lifting heavy truck tires. He also reported that he was retired from janitorial work/COTA diesel fueling. The clinician diagnosed backache, and the Veteran was fitted and issued a back brace. In his September 2009 dated Form 9, Appeal to the Board, the Veteran reported injuring his back while in service and the doctor “telling [him] that it may take years before degenerative arthritis becomes a problem. My arthritis first showed up in 1995 as osteoarthritis spurs of the lumbar vertebrae.” At his June 2010 Board hearing, he testified that after service, he first noticed problems with the back “after I got into the VA clinic in the 70s.” Further, “went to sick call in Indiana [U.S. Penitentiary in Terre Haute, and] they told [him] that arthritis had set in on the 3rd, 4th, 5th, and 6th vertebrae.” During a VA examination of November 2010, the examiner diagnosed degenerative disc and joint disease of the lumbar spine. The examiner noted there was no evidence of periodic treatment for the claimed back disability following service and that in 1989 during a prison health examination the Veteran answered no to a question regarding current or past back pain. It was additionally noted that there were no records indicating the condition was related to service and indicated that the degenerative changes of the spine were commonly seen with age progression. VA examination in September 2020 included diagnoses of lumbosacral strain, degenerative arthritis of the spine, and degenerative disc disease, lumbar spine. The examiner found it was less likely that the current diffuse degenerative disc space narrowing with no interval changes was caused by or the result of the lumbar strain that occurred in 1966. It was noted that an in-service examination was performed and that the evidence of record had been reviewed and that there was no evidence that the lumbar strain in 1966 resulted in a chronic condition. The examiner also found that there was no evidence that the Veteran’s arthritis was manifest in service or within one year of his separation from service. The first available diagnosis of degenerative disc disease of the lumbar spine was noted to have been provided in 2010. Based upon the evidence of record, the Board finds that a chronic low back disorder was not manifest during active service, that arthritis of the lumbar spine was not manifest within a year of discharge, and that the preponderance of the evidence fails to establish that a present low back disability is etiologically related to service. Although the Veteran is shown to have sustained a low back injury in service, his statements as to having experienced chronic symptoms that continued after service are found to be not credible based upon inconsistency with the other evidence of record. It is significant that he denied having or having ever had a history of arthritis, bone, joint, or other deformity upon discharge from service in 1968 and denied recurrent back pain in 1988 and 1989 post-service reports of medical history. The November 2010 and September 2020 VA opinions as to these matters are persuasive and based upon adequate rationale. The examiners are shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no medical opinion to the contrary. The Board acknowledges that the Veteran is competent to report observable symptoms, like back pain. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for degenerative arthritis of the lumbar spine (a lower back disability) is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. The preponderance of the evidence is against the claim. T. L. DOUGLAS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, Associate 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.