Citation Nr: 21007769 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-21 559 DATE: February 10, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s back disability had its onset in service, or manifested to a compensable degree within one year of service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 2000 to July 2000, from January 2004 to August 2004 and from September 2005 to October 2005 in the United States Army, National Guard (Oklahoma) during the Gulf War Era, including foreign service in Afghanistan from March 2004 to August 2004. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He was awarded the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from an October 2009 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2018, March 2017 and November 2013, this matter was previously before the Board and the case has now been reassigned to the undersigned Veterans Law Judge. In the most recent 2018 Board remand, the remand directives required the AOJ to: (1) obtain any outstanding records to include VA and non-VA treatment records from Muskogee Regional Hospital (Muskogee) dated July 2009, Oklahoma Neurosurgical Associates (ONA), and Hillcrest Medical Center (Hillcrest); and (2) obtain an addendum opinion for Veteran’s claimed back disorder. Pursuant to the Board’s December 2018 remand directives, the AOJ made numerous Veteran requests for authorization to disclose information in order obtain treatment records from Muskogee, ONA and Hillcrest in September and November 2019. See September and November 2019 VA letters to the Veteran. However, the Veteran did not respond to these requests. Additionally, the AOJ obtained a supplemental medical opinion in January 2020. Thus, the Board finds that there has been substantial compliance with the December 2018 Board remand directives and VA’s duty to assist the Veteran has been satisfied. Stegall v. West, 11 Vet. App. 289 (1998). Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Certain chronic diseases 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. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates: (1) that a condition was “noted” during service, (2) evidence of post-service continuity of the same symptomatology, and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). The term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1131. When a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty (on Reserve ACDUTRA /INACDUTRA or during federalized National Guard service). Otherwise, the period would not qualify as “active military, naval, or air service” and the claimant would not achieve “veteran status” for purposes of that claim. 38 U.S.C. § 101 (2)-(24). Presumptive periods for service connection, the presumption of soundness, and the presumption of aggravation generally do not apply to ACDUTRA or INACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or by an injury incurred or aggravated in the line of duty during INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for back disability The Veteran contends that his back disability is related to military service. Specifically, he asserts that he was injured his back in July 2009 while attending active duty training (ACDUTRA) when he was struck in his lower back while sitting in the rear of a humvee by a falling right vision sight. See VA Form 21-526 received July 2009; VA Form 21-4138 received August 2009. The Veteran has been diagnosed with multiple back disabilities to include degenerative arthritis of the spine, spinal fusion and lumbar spondylosis with right lower extremity radiculopathy in May 2017; right lumbar neuritis in November 2011; lumbar spondylosis with severe right L5 foraminal stenosis in April 2011; and degenerative arthritis changes in the lumbar spine in October 2009. Thus, a current disability exists. Shedden, 381 F.3d at 1163; 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Also see C&P Exam received October 2009; Capri received May 2017; C&P Exam received May 2017. The Board concludes that the claim must be denied because the preponderance of the evidence is against finding that the Veteran’s claimed back disability was incurred during active military service, manifested to a compensable degree within a year of service, or is otherwise related to his active military service. Further, no preexisting back disability was aggravated during service Service treatment records (STRs) reveal that on multiple occasions, the Veteran reported symptoms of back pain to include a post deployment health assessment in July 2004. An August 2004 service treatment record reflects that the Veteran suffered a back injury in May 2004 while deployed overseas. An August 2004 radiologic report ordered because of low back pain showed “normal lumbosacral spine.” In a February 2007 report of medical history, the Veteran reported that he was in a car accident in December 2006. The provider noted that no medical records were available and the Veteran low back pain was secondary to the “MVA.” He underwent spinal surgery and the fusion of his L5-S1 vertebrae in October 2007 and “did well” until July 2009. At that time, while he was on ACDUTRA, a missile night site fell on his low back and a line of duty determination noted disc disruption at L5-S1. In a July 2009 statement of medical examination and duty status, the provider noted that the nature and extent of the Veteran’s injury was “back sprain, NOS” and that he was seen at Muskogee where he was diagnosed with acute back pain. In the remarks, the provider noted that the Veteran was loading equipment in the back of a truck when a TOW missile-sight fell, hitting him in the back. See Medical Treatment Record (SSA) received August 2015; Medical Treatment Record received January 2012; STR received August 7, 2009. VA treatment records contain numerous complaints of and treatment for back pain throughout the years. For example, days after his active duty training accident, in a July 2009 emergency department note, the Veteran presented after passing out (unwitnessed) from taking a shower. In addition to other pains, he stated that it hurts in his low back. In an October 2009 clinical note, the provider noted that the Veteran brought films and paperwork from ONA that showed the workup and failed conservative treatments given to him in 2006 and 2007 leading up to lumbar discogram. Also, the provider noted that the Veteran underwent posterior body fusion and a right L5-S1 … discectomy were performed on October 5, 2007 at Hillcrest. In a December 2009 emergency room visit, the Veteran presented complaining of excruciating back pain. Additionally, in March 2010, he was assessed with low back pain with mild radiculopathy. See Medical Treatment Record received November 2013; Capri received August 2012. Based on the Board remands (December 2018 and November 2013), the 2009 VA examination and the 2017 VA medical opinion were found inadequate. The 2017 opinion was insufficient as it relied on an inaccurate factual premise, and the 2009 examination did not address whether the back disability was related to service or aggravated by active duty service or training. As a result, the 2017 VA medical opinion will not be discussed in this decision. See BVA Decision received December 2018; C&P Exam received May 2017; Remand BVA received November 2013; C&P Exam received October 2009. In a January 2020 VA medical opinion, the clinician concluded that the Veteran’s claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness prior to the December 2006 motor vehicle accident (MVA). For rationale, the clinician opined that during service, “the condition was acute only” and that there is no evidence of chronicity of care. The examiner noted that the Veteran’s claim-file is silent for a back disability from service to the December 2006 MVA; and a nexus has not been established. See C&P Exam received January 2020. Additionally, in the January 2020 VA medical opinion report, the clinician concluded that the Veteran’s claimed back disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness during his period of ACDUTRA in July 2009. For rationale, the clinician opined that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing low back condition. The clinician opined that the current medical literature does not support the conclusion. The clinician specifically noted that the July incident, and “ER” and PT notes from July and August were noted. Further, the clinician noted that on September 25, 2009, the Veteran stated he felt his back issue is from a service parachute jump. The clinician also supported his finding of no aggravation by noting that neurosurgery notes “noted no direct relation to the 07/09 50# night sight impact on back.” The clinician concluded that “the current condition 10 years later appears to be a natural progression only of the 2006 MVA[,] 2007 fusion and age.” See C&P Exam received January 2020. The Board finds the January 2020 VA opinion with respect to the Veteran’s claimed back disability is entitled to great probative weight. In this regard, the opinion was provided following review and consideration of the Veteran’s claim-file, which included STRs, and VA and non-VA medical records and medical literature. Significantly, the clinician provided a conclusive opinion; and offered clear reasoning to explain why the Veteran’s current back disability is not related to service and was no aggravated during a period of ACDUTRA. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the Veteran is competent to describe the symptoms such as low back pain and any related trauma he experienced. However, as a lay person without specialized medical training, his opinion as to the nature and/or cause or origin of his claimed back disability is not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the preponderance of the evidence is against a finding that the Veteran’s claimed back disability is related to or aggravated by his military service. Also, the preponderance of the evidence is against a finding that service connection for is warranted on a presumptive basis for chronic diseases or on the basis of continuity of symptomatology as the Veteran does not contend, and the evidence does not show, that any arthritis manifested to a compensable degree within a year of service or that any back symptoms have been continuous since service. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Specifically, STRs show that in an August 2004 radiologic report, the findings showed “normal lumbosacral spine.” Furthermore, the preponderance of the evidence is against a finding that the Veteran’s current back disability is related to service or that a preexisting back disability was aggravated during a period of service. Therefore, entitlement to service connection for a back disability is not warranted in this case. Thus, because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes, 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.