Citation Nr: 21008622 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-46 180 DATE: February 17, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his low back disability is at least as likely as not related to an in-service injury, event, or illness. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1977 until his honorable discharge in February 1995. In a June 1996 rating decision, a Regional Office (RO) of the United States Department of Veterans Affairs (VA) denied the Veteran’s claim for service connection for back pain, which became a final decision as the Veteran did not appeal or file supplemental evidence within one year of the rating decision. In July 2011, he filed a claim to service connection for a low back disability. In a June 2013 rating decision, the Roanoke, Virginia, Regional Office reopened the Veteran’s original claim and continued denial of service connection. The Veteran timely filed a notice of disagreement. The RO issued a December 2015 statement of the case (SOC) continuing denial of service connection, and the Veteran timely appealed to the Board of Veterans’ Appeals (Board). In June 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In a November 2019 decision, the Board reopened the Veteran’s claim and remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA medical examination and opinion as to the etiology of the Veteran’s low back disability, which the RO accomplished. The case now returns to the Board after substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a low back disability Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability As to the first element of service connection, a current disability, the Veteran submitted a 2006 private radiologist report from Dr. N.K. who found that the Veteran had “slight scoliosis of the thoracolumbar junction” with mild disc space narrowing and spondylosis deformities of the Th12 – L1 and L1 – L2 vertebrae. Dr. N.K. opined the Veteran had discogenic disease of the thoracolumbar junction. The Veteran’s private chiropractor, Dr. R.W., diagnosed the Veteran with lumbar segmental dysfunction, lumbar disc degeneration, and myalgia in August 2006. From 2006 through 2015, the Veteran sought medical treatment for his low back disability, as documented in his VA and private medical records. In July 2015, the Veteran underwent an MRI of his back. A VA certified nurse practitioner reviewed the MRI results and found that the Veteran had “multilevel degenerative disc disease and facet arthrosis most pronounced at the L4 – L5 vertebrae with mild spinal canal stenosis and mild to moderate bilateral neural foraminal stenosis.” The Veteran’s VA and private medical records from 2015 through the present continued to document his low back disability. The Board finds the competent, credible, and probative medical evidence of record establishes that the Veteran had a low back disability during the pendency of his claim. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Veteran asserts two in-service events led to his current low back disability: (1) his duties associated with his military occupational specialty (MOS) as an information management craftsman, and (2) his sporting activities while representing his military installations. As part of his MOS while stationed at the Lackland United State Air Force Base (Lackland AFB), San Antonio, Texas, the Veteran asserted he worked as a postal service employee from 1978 until 1983. The Veteran’s military personnel records confirm his service at Lackland AFB at the postal service center, and the Board has no reason to doubt his service dates. In his January 2012 correspondence, he asserted that as part of his duties he was required to lift 60-pound bags of mail on a routine basis. He submitted a letter from P.R., his supervisor at Lackland AFB from 1979 to 1980, who stated that the Veteran was required to lift postal bags of correspondence and packages weighing between 50 to 70 pounds daily. The Veteran also asserted he was required to stand on his feet for hours at a time leading to back pain. The Veteran reaffirmed his physical MOS duties and pain during his testimony at the June 2019 Board hearing. The Board finds the Veteran and his former supervisor, P.R., are each competent to report the Veteran’s physical duties associated with his MOS at Lackland AFB in the postal service center. The Board also finds their respective statements credible and probative as they relate to an in-service event. The Veteran also asserted he represented various installations in numerous sporting activities, including fast-pitch and slow-pitch softball, and flag and tackle football, from 1973 through 1992, which led to his low back disability. In a May 2013 correspondence, the Veteran provided a detailed summary of the dates, events, and locations of the sports in which he participated. He described various injuries to his extremities, including his back. His assertions are supported by his service treatment records (STRs), which documented numerous sports-related injuries throughout his active military service. A January 1978 STR documented a complaint of low back pain due to an unspecified origin. The Board finds the Veteran is competent to report his in-service sporting activities, to include dates, locations, and the nature of the events. He is likewise competent to report any physical sensations of pain or other symptoms capable to lay observation. The Board finds his statements credible and probative as they relate to an in-service event. Accordingly, the Board finds the Veteran’s physical duties associated with his MOS and his extensive participation in sports and associated medical treatment satisfy the second element of service connection, an in-service event. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s current back disability and in-service events, the Board finds the relevant lay and medical evidence of record establishes the Veteran’s low back disability is causally connected to his in-service physical duties associated with his MOS and in-service sporting activities. The Veteran provided three separate medical nexus opinions from his private chiropractor, Dr. R.W. In an August 2011 correspondence, Dr. R.W. opined that the Veteran’s low back disability was more likely than not related to his military service. Dr. R.W.’s opinion, however, was not accompanied by any rationale or indication that he relied on accurate facts when forming his opinion. In October 2013, Dr. R.W. provided a second opinion. He again opined that the Veteran’s low back disability was more likely than not related to his military service. This time, he provided a limited rationale. He recited the Veteran’s identified back disability, to include lumbar segmental dysfunction with associated degenerative changes of the lumbar spine and limited range of motion of the lumbar spine. Dr. R.W. noted that the Veteran had been a patient of his since 2006 with respect to his low back conditions. Dr. R.W. indicated the Veteran informed him that during his military service he complained of low back pain that plagued him since discharge. This was the extent of Dr. R.W.’s rationale. In August 2018, Dr. R.W. provided a third opinion. He again opined that the Veteran’s low back disability was more likely than not related to his military service. Dr. R.W. indicated that he reviewed the Veteran’s statements submitted to VA dated May 2016 and October 2017. He characterized the Veteran’s then-current low back disability as “unstable lumbar degenerative condition with associated muscular imbalances leading to pain, discomfort, and stiffness.” He then cited a medical study of 171 veterans with chief complaints of low back pain, which showed improved back conditions with chiropractic therapy. Dr. R.W. applied the study to the Veteran’s current treatment and back disability and concluded that his low back disability “will deteriorate in stability and exacerbations.” This was the extent of his rationale. The Board finds Dr. R.W. competent to diagnose the Veteran’s low back disabilities and to provide an opinion on the etiology of those disabilities. The Board also finds Dr. R.W. credible. But his October 2013 opinion the only probative opinion, and only minimally. Dr. R.W. provided the same opinion in each correspondence, but his rationale for each one differed. Initially, he offered no rationale to support his August 2011 opinion. Thus, that opinion is of no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). For his August 2018 opinion, Dr. R.W. did not explain how he connected the Veteran’s low back disability to his military service. Instead, he cited a study about the progression of the Veteran’s back disability and then applied the study to the Veteran. The rationale failed to discuss any medical connection between the Veteran’s low back disability and his military service. Thus, it is also of no probative value. Id. As to his October 2013 opinion and supporting rationale, Dr. R.W. only stated that he considered the Veteran’s assertions about his military service and was familiar with his medical history as a patient. Private medical examiners have no reasons-and-bases requirements, and they only need to offer a rationale that supports their opinion after review of relevant evidence. See generally Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Monzingo v. Shinseki, 26 Vet. App. 97, 105–06 (2012). Based on Dr. R.W.’s statements, the Board infers that he reviewed the Veteran’s pertinent medical history and considered his relevant military experience. Thus, the Board finds Dr. R.W.’s October 2013 rationale minimally supports his opinion, and the Board affords it minimal probative value. The Veteran also submitted an October 2013 opinion from his then-treating certified medical massage practitioner and massage therapist, I.R. She opined that the Veteran’s low back disability was not the result of new injuries, “but a long on-going breakdown of trauma incurred years earlier,” which she acknowledged confirmed Dr. R.W.’s medical opinion. She stated she had treated the Veteran for the past seven years, supplementing Dr. R.W.’s treatments. She described the treatment she provided to the Veteran. The Board does not find I.R. competent to provide a medical nexus opinion about the Veteran’s low back disability. She is not properly qualified through medical education, training, or experience to provide such an opinion. Even if she was competent and credible to provide her opinion, the Board would afford her opinion no probative value because it is not supported by an adequate rationale. She failed to connect the Veteran’s military service, medical history, and lay statements to his low back disability. Nieves-Rodriguez, 22 Vet. App. at 304. The RO obtained a medical opinion from a qualified VA medical professional in December 2015. The VA examiner reviewed the Veteran’s medical history and opined that his low back disability was less likely than not incurred in or caused by “back pain in service.” The examiner cited a January 1978 STR that documented the Veteran’s complaint of low back strain in service. The examiner concluded the complaint was acute and transient. He also found the Veteran’s 2015 lumbar-spine MRI, which showed degenerative joint disease, was “degenerative, the result of chronic wear and tear, a genetic predisposition, body habitus (BMI=31) and the loss of fluid in the disk spaces.” The VA examiner did not conduct an in-person examination of the Veteran, nor did he consider any of the Veteran’s lay statements. He also focused his opinion and rationale solely on the Veteran’s single complaint of back pain in service rather than the physical impact on his back due to his duties associated with his MOS and sporting activities while in service. Because of these deficiencies, the opinion is of limited probative value. The RO obtained a second medical opinion, along with a medical examination, from a VA-contracted examiner in January 2020. The examiner conducted an in-person examination, reviewed the Veteran’s relevant medical records and electronic claims file, and documented the Veteran’s lay statements. The examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by his in-service events. The examiner’s rationale was that the January 1978 STR did not diagnose the Veteran with low back pain and there was no evidence that his low back pain was chronic in service. Furthermore, he was not diagnosed with degenerative joint disease until April 2017, several years after service. The Board finds the rationale inadequate and the opinion to have no probative value. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.”). There is no indication the examiner considered the Veteran’s lay statements in relation to his low back disability; documentation of his lay statements alone is insufficient. See Dalton, 21 Vet. App. at 39‒40. Instead, it appears that the examiner solely focused on the Veteran’s documented isolated complaint of back pain in service and a lack of any further in-service complaints or diagnoses. Consequently, the examiner did not appropriately address whether the Veteran’s physical duties associated with his MOS or his in-service sporting activities played any role in relation to his current low back disability. In addition to the medical evidence, the Veteran has provided lay statements from relevant sources, which demonstrates the Veteran continuously had symptoms of back pain while in service and following his separation from service. In his various correspondences, the Veteran stated that his back pain in service was not documented because he did not seek treatment for it. He attributed this to his youth and general character, seeking to self-treat and self-medicate if possible. He only sought treatment for illnesses and injuries when he felt it was “absolutely” necessary. It was not until 2006 that he saw a chiropractor for his back pain because it became too much to bear any longer on his own. His medical records indicate continuous complaints and treatment for back problems beginning in 2002. The Veteran’s wife submitted a statement in January 2012. She and the Veteran met in 1992 while in service. She said the Veteran continuously suffered back pain. She confirmed that it was in 2006 that the Veteran sought professional medical treatment for his back pain because the pain had become too much for him. The Veteran’s former in-service supervisor, P.C., submitted a statement dated October 2013. He explained that during his time as the Veteran’s supervisor from 1979 to 1980, he observed numerous instances when the Veteran had a difficult time bending and leaning forward to pick up postal bags. During those times, the Veteran said he felt “stiff” from training for football and softball throughout the week. P.C. encouraged the Veteran to see the medical professionals at the base, but the Veteran chose to self-medicate with over-the-counter medicine, braces, and wraps to improve his mobility. A fellow service member, L.S. (also known as L.E.), submitted a letter dated in October 2013 on the Veteran’s behalf. She knew and worked with the Veteran from 1991 to 1992. She was aware of his in-service sporting activities and the multiple injuries he received from his participation in sports. She personally knew that the Veteran did not seek medical treatment for every in-service ailment or injury. In a June 2019 affidavit, she described how the Veteran routinely complained of low back pain while working with her. She saw looks of pain on his face as he “limped” around the office where they worked. She observed him grimace on occasion and encouraged him to use ice to on his back. She specifically recalled that the Veteran’s back pain was worse after his weekend sports tournaments, which caused him to walk slower while at work. The Board finds the Veteran is competent to report his sensations of back pain during and following separation from active military service. The Board also finds the Veteran’s wife, his former supervisor, and his former fellow servicemember are each competent to report their interaction with and observations of the Veteran regarding his back pain. The Board finds each of these individuals’ respective statements credible and probative as to establishing a link between the Veteran’s in-service events and current low back disability. Looking at the lay and medical evidence together, the Board finds that the lay statements from the Veteran, his friends, and family credibly establish the “chronic wear and tear” referenced by the December 2015 VA examiner in his rationale, which he cited as a contributing factor to the Veteran’s low back disability. It is reasonable to infer that that the Veteran’s repeated sports activities, particularly tackle football, lead to back pain, and his back pain was compounded by his general physical duties associated with his MOS. This conclusion leads the Board to place emphasis on the Dr. R.W.’s opinion that the Veteran’s low back disability is more likely than not due to his active service. Therefore, the Board finds the lay and medical evidence of records establishes the Veteran’s low back disability is causally linked to his in-service physical duties associated with his MOS and is in-service participation in various sports. Accordingly, service connection is warranted for the Veteran’s low back disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.