Citation Nr: 21007814 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-45 292 DATE: February 10, 2021 ORDER Entitlement to service connection for low back disability is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran’s current low back disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty over two periods of enlistment from December 1959 to September 1964. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). A September 2020 Board decision remanded the Veteran’s claim for service connection for a low back disability. At that time the Board found that a remand was warranted for a new VA opinion as the VA examiner failed to provide a sufficient rationale for adjudication purposes. The Board noted that the examiner’s rationale did not consider the Veteran’s lay statements indicating that his symptoms have persisted since an in-service helicopter crash in 1962. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for low back disability is denied. The Veteran contends that his low back disability was caused by injuries sustained while on active duty. Specifically, he claims that he injured his lower back during a helicopter malfunction and crash off the coast of Vietnam in March 1962.The Veteran has made several statements indicating that symptoms of a lower back injury began immediately upon the helicopter crash in 1962 and have continued ever since. See September 2018 VA Form 9, August 2014 Personal Statement, March 2015 VA Form 27-0820, December 2016 Personal Statement. The Veteran also testified at a hearing before the undersigned on July 12, 2020 that he has had continuous symptoms since the helicopter crash in March 1962. Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §1131; 38C.F.R. §3.303. Service connection requires competent evidence showing: (1) 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. Shedden v. Principi, 381 F.3d1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, when manifested to a compensable degree within a year of separation from service. 38C.F.R. §§3.307, 3.309. DDD, as a form of degenerative arthritis, is such a condition. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records are silent for any complaints, reports, or documentation of a back injury in service. Notwithstanding this, the VA has conceded that a helicopter took off from the USS Princeton and crashed in the water near the coast of Vietnam in March 1962. See September 2018 Statement of the Case (SOC). The Veteran’s post service medical records include documentation of back issues decades after service. A January 2014 treatment record states that the Veteran complains of lower lumbar pain with standing for very short periods of time. See Medical Records Received February 2015. A March 2013 treatment record states that on exam of the back, there is mild tenderness to palpation at the L5 vertebral body and no palpable lumbar paraspinous muscle spasm. See Medical Treatment Records Received February 2015. A separate March 2013 report from Lake Regional Health System which contained findings form a CT scan of the Veteran’s lumbar spine states that there is straightening of the normal cervical lordosis and no fracture or subluxation is seen. See Medical Treatment Records Received in October 2015. It is further noted that there is a diffuse disc space narrowing throughout the lumbar spine with the least involvement of L5-S1.Additionally, it is noted that vacuum disc phenomenon is seen at all levels with the exception of L5-S1 and extensive osteophyte formation was also seen. See Medical Treatment Records Received in October 2015. A May 2018 treatment record states that the Veteran is being seen in consultation for low back pain. See CAPRI treatment records received June 2018. The treatment note also states that the Veteran had a CT scan of his back and was seen by a pain doctor. Id. The Veteran was afforded an examination to evaluate his back disability in August 2018. The examiner diagnosed the Veteran with degenerative arthritis of the spine, lumbosacral spine degenerative disc disease (DDD) with stenosis. The VA medical examiner found that the Veteran’s lumbosacral spine DDD was less likely than not (less than 50% probability) incurred in or caused by the lower back injury during service. The medical examiner noted that the Veteran’s STRs were silent for an acute or chronic, disabling lumbosacral spine condition or diagnosis. In her rationale, the medical examiner did not consider the Veteran’s lay statements indicating that his symptoms have persisted since the helicopter crash in 1962. Because the examiner did not consider the Veteran’s lay statements regarding his symptoms of lower back pain existing since 1962, the Board assigns this opinion little probative value. The Veteran was afforded another examination in October 2020 pursuant to the September 2020 remand directives. The examiner indicated that the Veteran’s VA e-folder and VA electronic health record were reviewed. The examiner noted that longitudinal medical evidence, including the Veteran’s assertions, and the Veteran’s statement in the transcript of the hearing conducted in July 2020 have been carefully considered and stated that based on the objective findings, the examiner’s previous opinion from the August 2018 examination is unchanged. The examiner noted that available post separation medical records are negative for a lumbosacral spine canal stenosis diagnosis such as neurogenic claudication condition diagnosis, greater than thirty three years after active service separation. The examiner also stated that a post separation note dated April 2002 (33 ½ years after active service separation, when the Veteran was 61 years of age) from the Veteran’s primary care physician noted that the Veteran had osteoarthritis of the knees and back. The examiner concluded that “the Veteran’s lumbosacral spine DDD with varying degrees of spinal canal stenosis and neuroforaminal stenosis per post separation CT lumbar Spine w/o Con (March 2013), 48 ½ years after active service separation at 71 years of age is less likely as not to have had its onset during service or other wise be related to an in-service injury, disease or event.” The examiner also opined for the same reasons that it is less likely as not that the Veteran’s back disability had its onset within one year of the Veteran’s separation from active duty service in September 1964. Based on a review of the record, the Board is unable to attribute the Veteran’s low back disability to his military service. While the Board has conceded that a helicopter took off from the USS Princeton and crashed in the water near the coast of Vietnam in March 1962, there is no causal link to the back issues the Veteran currently experiences. The earliest medical evidence of record indicating the presence of a low back disability is several decades after his separation from active service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Regarding the Veteran’s statements that his low back disability was due to a helicopter crash during service, the Board acknowledges that the Veteran is competent to report his symptoms. However, to the extent that such assertions purport to establish the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board acknowledges that during service the Veteran’s military occupational specialty (MOS) was medical technician in addition to the Veteran’s testimony of serving as a hospital corpsman during active duty service; however, the Veteran himself noted that he dealt with issues related to anesthesia and he has not shown that he possesses medical expertise with respect to back disabilities. The Board finds that the most recent October 2020 examiner thoroughly reviewed the record and carefully considered the Veteran’s lay statements with respect to the onset of his back disability being related to the 1962 helicopter crash. The VA examiner was aware that the Veteran asserted that he injured his back while in a helicopter crash during active service and she considered this fact among other factors in her rationale for the medical opinion. (Continued on the next page)   The Board finds that the October 2020 VA examination is the most probative evidence of record. The examiner reviewed the Veteran’s entire claims file which included STRs, considered his lay statements, and examined his post-service medical treatment records. After a thorough review, the examiner provided sufficient rationale supporting her opinion with direct citations to evidence in the record. The examiner considered the helicopter crash that occurred in service and ultimately concluded that there was insufficient evidence to suggest a back injury in 1962 was causal to the Veteran’s current back disability. The August 2018 and the October 2020 VA medical reports were the only medical nexus opinions of record and both examiners provided negative etiological opinions. There was no positive medical nexus opinion of record provided by the Veteran or his representative linking the Veteran’s low back disability to service. Thus, based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a low back disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107 (b). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.