Citation Nr: 21008472 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-54 766 DATE: February 17, 2021 ORDER Entitlement to service connection for a low back disorder, to include as secondary to a bilateral knee disability, is denied. FINDING OF FACT The Veteran’s current low back disorder is not related to service and it was not caused or aggravated by service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder, to include as secondary to bilateral knee disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to July 2005. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified during a videoconference hearing before the undersigned; a transcript of this hearing is of record. During the hearing, the undersigned agreed to keep the record open for 90 days. In December 2019, the Board remanded the matter. Entitlement to service connection for a low back disorder, to include as secondary to a bilateral knee disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends his low back disorder is related to service or his service-connected knee disabilities. In November 2016, he also stated that while in service he slipped on an oily surface and hurt his back, which was aggravated by a post-service motor vehicle accident. See November 2019 Form 9. In May 2019, he testified that while in service he fell off a creeper, which is an object with wheels that a person lays down on to get underneath a car, and tweaked his back. He stated that at the time he did not think it was a big deal and did not seek treatment. He also indicated that the low back disorder was made a little worse by his bilateral knee disabilities. He believed they were related because an injury with one can cause other problems or misalignment with the spine. See April 2019 Hearing Transcript. Consistent with his testimony, the Veteran’s service treatment records contain no evidence of a low back injury. Both the December 2002 enlistment examination and the June 2005 separation medical assessment contain no evidence of low back complaints, injury, or diagnosis. The June 2005 assessment also shows that the Veteran gave a negative response to having suffered from any injury or illness on active duty for which he did not seek medical care. See February 2008 STR – Medical. The record shows the Veteran had three car accidents within the first three years after separating from service and there is no evidence of low back complaints prior to the first car accident. The first car accident was in October 2006, more than one year after he separated from service. The Veteran was seen at a private hospital right after the accident and then went to a VA facility the following day where he reported having pain from his knees to mid-his back. He was treated and the diagnosis was musculoskeletal pain. See February 2008 Medical Treatment Record – Government Facility. January and February 2007 VA treatment records show the Veteran had a second car accident in January 2007 and that he had been seen in the emergency room. He reported having mid and low back pain. The impressions were chronic pain in the thoracic and lumbosacral spine areas and myofascial pain syndrome. See June 2018 CAPRI records. An April 2008 VA treatment record shows he had been in a third car accident in February 2008. The airbag was deployed, and the car was totaled. He had been having thoracic spine pain since the accident. See June 2008 CAPRI. In May 2008, he was referred for physical therapy due to thoracic spine pain status post motor vehicle accident. The Veteran reported having pain in the low and mid back that had been present for a couple of months. The clinician’s assessment was that the Veteran presented with signs and symptoms suggestive of a thoracolumbar sprain/strain with pain from the T7 through the L4-L5 levels. A July 2008 neurology record notes the Veteran had been in a car accident in October 2006 and that he reported having pain in the lower thoracic/upper lumbar areas since that time. Results of nerve conductive studies show the findings were indicative of L1-L2 radiculopathy. See June 2008 CAPRI records. An October 2008 VA treatment record shows he had an MRI of the lumbar spine in September 2008 that revealed a small herniation. See June 2018 CAPRI records. However, there is no probative evidence that links it to service. As shown, the Veteran has a low back disorder, but despite his current assertions that it is related to an injury in service or secondary to service-connected bilateral knee disabilities, the early records show he only attributed his back pain to the car accidents. A May 2008 VA treatment record shows the Veteran reported that he had been in three serious car accident in the past three years and that he had chronic back problems as a result. See June 2008 Medical Treatment Record – Government Facility. A July 2008 VA treatment record shows he reported having a car accident in 2006 and that he had pain in the thoracolumbar spine since then. See July 2008 Medical Treatment Record – Government Facility. Records from the Social Security Administration (SSA) show that in June and August 2010 he reported having back problems after and due to a car accident. See December 2015 Medical Treatment Record – Furnished by SSA. The Veteran is competent to report his symptoms and when they began. His statement that he “tweaked” his back in service and that it was not significant enough to seek treatment is credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, the Board does not find he is competent or that his statements are credible concerning an etiological relationship between his current back disorder and service since this assertion was first raised as part of his claim for service connection. As noted, there are several more contemporaneous records that show he attributed his back problems to post-service car accidents. The Board finds that the reported onset of the Veteran’s back problems contained in the contemporaneous records are more credible than the history of the Veteran’s symptoms and statements made many years later. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). Given that the contemporaneous medical records show the Veteran consistently attributed the onset of his back pain to a post-service car accident, this evidence is more probative than his more recent statements that link his back pain to an in-service back injury or his service-connected bilateral knee disabilities. Furthermore, the only probative nexus evidence is against the claim. May 2019 correspondence from a VA physician who treated the Veteran, examined him in April 2019, and reviewed his records states that while it is possible the Veteran’s chronic low back pain could be related to service, it is most likely secondary to a severe car accident. The physician noted that during an interview, the Veteran stated that he had low back pain in service, but it was “too mild” to seek medical attention. It was not until the 2007 car accident when his symptoms worsened, and the disc herniation was found. See June 2019 Medical Treatment Record – Government Facility. In September 2020, after a VA physician stated that the Veteran agreed that his knees were not related to his back, the clinician added that it was difficult to see a serious injury could occur from missing a creeper and hitting the ground from a height of two to three inches. If an injury did occur, he never reported to medical. The physician also noted that, since his service, the Veteran had three motor vehicle accidents, which was the indication for all his consults and imaging reports. The claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See September 2020 C&P Exam. Although the treating physician states it is possible that the low back disorder is related to service, the speculative nature of the statement offers no probative value. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The clinician then explains why the back disorder is not related to service by offering a rationale supporting why the post-service car accidents are a more likely cause for the current low back disorder. While a negative opinion for direct service connection may be inferred, the physician did not actually offer an unfavorable opinion, so his statement has limited probative value. The September 2020 VA opinion does offer an unfavorable opinion and is supported by a rationale that takes into consideration the Veteran’s statements, but the clinician ultimately finds evidence of post-service car accidents is more probative. This opinion is probative and consistent with the record. The Board notes that the Veteran has characterized the in-service injury as insignificant and not warranting medical attention and since he did not note it on his separation assessment, the evidence suggests that it was a minor, acute injury and that it was not an ongoing problem. Furthermore, post-service complaints were all associated with post-service motor vehicle accidents. Thus, the opinions are consistent with the history. Regarding service connection on a secondary basis, the opinions based on this theory are also against the claim. On September 2016 VA examination, the Veteran reported that he recalled developing a back disorder doing various mechanical jobs on active duty, and he also had a motor vehicle accident in 2007 that caused him to have his back closely evaluated. The clinician opined that the low back disorder is less likely than not proximately due to or the result of the Veteran’s service-connected bilateral knee disabilities. The clinician noted that the Veteran offered no history linking his knees his back disorder. He did state that it might have started while doing mechanical work on active duty and he gave a history of a car accident in 2007 that precipitated the evaluation and investigation into his back disorder. Therefore, the clinician concluded that assuming the Veteran’s history is accurate, the current low back disorder is less likely than not related to his bilateral knee disabilities. See September 2016 C&P Exam. On September 2020 VA examination, the clinician noted that the medical records support the diagnoses of degenerative disc disease and bulging disc in the Veteran’s lower spine but opined these disorders are not related to nor the result of the service-connected condition of right knee strain. The Veteran’s low back was not at least as likely as not aggravated beyond natural progression by the bilateral knee disabilities. Generally speaking, pathology in the lumbar spine can lead to hip and knee problems but it is not supported in medical literature that knee problems ascend to the lumbar spine. The two conditions are separate issues. See September 2020 C&P Exam. The September 2016 VA opinion only addresses the causation aspect of secondary service connection. The unfavorable opinion includes a rationale that considers the Veteran’s statement that he had back pain in service and his history of a post-service car accident, but finds that there is no history of the knee disabilities being linked to the low back disorder. The September 2020 opinion addresses the causation and aggravation aspects of secondary service connection and is adequately supported by a rationale that considers the Veteran’s statements but finds medical literature does not support causation or aggravation. As the knees and the back are two separate areas of the body, the rationale suggests that the lack of relationship between the two bars causation and aggravation. Both opinions are probative and since there are no favorable opinions, the weight of the evidence is against secondary service connection. The Board notes that the Veteran’s testimony appears to suggest that disabilities in the lower extremities can cause misalignment in the back; however, a review of VA medical treatment records from July 2008 to August 2020 show on many occasions that the Veteran’s gait was normal. See July 2020 and October 2020 CAPRI records. Thus, there is no evidence of an altered gait due to the knees. In short, there is no evidence supporting the Veteran’s contention that his bilateral knee disabilities caused or aggravated his low back disability and the only probative evidence is against such a finding. In essence, VA clinicians found that the Veteran’s low back disorder is related to his post-service motor vehicle accidents rather than his knees or service. As there is a lack of nexus evidence to support direct or secondary service connection and the probative evidence is against the claim, a preponderance of the evidence is against service connection. There is no reasonable doubt to consider. 38 C.F.R. §§ 3.102. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.