Citation Nr: 21009314 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-38 948A DATE: February 22, 2021 ORDER Service connection for residuals of a low back injury is denied. FINDING OF FACT A back disorder, claimed as residuals of a low back injury, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge. CONCLUSION OF LAW The criteria for service connection for residuals of a low back injury have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1961 to July 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2011 by a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran, his brother, and his sister-in-law testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2017, the Board denied the claim on appeal as well as claims for service connection for a bilateral shoulder, bilateral leg disorder, and left foot disorders. Thereafter, the Veteran appealed such decision only to the extent that it denied service connection for residuals of a low back injury to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s August 2017 decision as to such issue. In December 2018 and October 2020, the case was remanded for additional development and it now returns to the Board for further appellate review. The Board notes that, in October 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge; however, such letter was sent in error as his hearing was already held in April 2017 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019); Cook v. Snyder, 28 Vet. App. 330 (2017). The Board also observes that, since the issuance of the most recent supplemental statement of the case in November 2020, additional evidence, to include a VA audiological examination and VA treatment records, has been associated with the record and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of it. However, the Board finds that no prejudice results to the Veteran in the Board proceeding with a decision at the present time as such is irrelevant to the claim decided herein or contain findings duplicative to those previously considered by the AOJ. 38 C.F.R. § 20.1305(c). Entitlement to service connection for residuals of a low back injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a current back disorder that resulted from an in-service low back injury. Specifically, during the April 2017 Board hearing, he testified that he injured his lower back while he was trying to pick up a heavy tire on a 2 ½ ton truck, and his back popped. The Veteran also stated that he has had continued problems with his back ever since such incident. As an initial matter, the Board notes that the Veteran’s in-service back injury was documented in his service treatment records (STRs), and he has a current back disorder, diagnosed as lumbar spine degenerative joint disease (DJD) at the October 2011 VA examination and degenerative disc disease in treatment records. Thus, to establish service connection for residuals of a low back injury, the evidence must show a link, or nexus, between the Veteran’s currently diagnosed back disorder and any instance of his military service, to include his in-service back injury. However, upon review of the evidence, the Board finds the preponderance of the evidence is against such claim. In this regard, an August 1962 STR noted that the Veteran injured his back when he was fixing a tire on a truck, and he had persistent pain ever since. The examiner noted that the Veteran had no radiation and, upon physical examination, there was pain and tenderness to percussion at the L3 level, and muscular spasms were reported. X-rays were negative and an impression of a low back strain, acute, was noted. The Veteran was also put on light duty for five days. His May 1963 separation examination revealed that his spine was normal upon clinical evaluation, and he denied all relevant symptomatology. The Veteran was afforded a VA examination in February 1983 in connection with his original claim for service connection for residuals of a low back injury. At such time, the examiner noted the Veteran’s reports of his in-service back injury and that, ever since, he has had low back distress that gradually became worse with pain descending into his right ankle and foot. The examiner noted that the Veteran had a diagnosis of a low back traumatic injury by history with a clinical impression of lumbar disk disease of L5-S1. In his June 1983 substantive appeal, the Veteran stated that his private physician told him he had symptoms of ruptured intervertebral disc at L4-L5 with nerve root pressure to lateral aspect of the right leg to foot. The Veteran contended that, since he strained and weakened his back in the same area while in service, such led to his present ruptured lumbar disc. The Veteran’s Social Security Administration (SSA) records revealed that he worked in the oil fields in Texas and, in approximately 1985, he injured his back while lifting tanks. The Veteran was treated non-operatively for 2 to 3 years and, in February 1988, he underwent a bilateral L5-S1 hemilaminectomy and discectomy, and a bilateral posterolateral L5-S1 fusion with left iliac crest autogenous bone graft. His SSA records also revealed that he re-injured his back in 1991 on the job. In December 1990, a lay statement was received from the Veteran’s sibling who stated that there was nothing wrong with the Veteran and he was able to pick up a clothes’ dryer and carry it across the room by himself. In a December 1993 statement, the Veteran stated that the doctor who treated him in 1964 or 1965 was dead and he did not know who took over his practice. The Veteran also stated that he was examined by Dr. H. at Quitman after he separated from service, who found that the Veteran’s arthritis build up was caused from the injury he received in-service. However, the Veteran stated that Dr. H. passed away. While the Veteran is competent to report such opinion, it is offered no probative weight because no rationale has been provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Veteran’s post-service VA treatment records reveal that he re-injured his back in July 1994. Specifically, he fell from a ladder while changing a bulb outside. He stated he was having back pain, but denied any numbness or tingling sensations. A diagnosis of compression fractures of thoracic 12 and lumbar 1, stable, was noted. A January 2007 private treatment record reflects that an MRI of the lumbar spine revealed an impression of no spinal canal stenosis and moderate stenosis of the left L4-L5 neural foramen, secondary to a posterior disc bulge and degenerative facet changes. The Veteran was afforded a VA examination in connection with his current claim for a back disorder in October 2011. At such time, the examiner diagnosed DJD of the lumbar spine and lumbar radiculopathy (intermittent) since 1983. He noted the Veteran’s past medical history consisting of his 1962 in-service back injury and his previous back surgery in the late 1980s, and the Veteran’s reports of frequent intermittent low back pain, spasms, and stiffness of his back. However, the examiner opined that the Veteran’s back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he explained that the Veteran had an isolated lumbar strain in 1962 and no complaints of the back were noted at the time of separation. The examiner also explained that the records suggested the Veteran’s back problems started in the 1980s from work-related injuries, which was confirmed by his SSA records. Thus, the examiner found that the Veteran’s current back problems were related to his back injuries as a civilian, and the records suggested the Veteran separated from service without lumbar spine residuals. In a December 2015 statement, the Veteran reiterated that Dr. H. stated his arthritis in his back was related to his in-service back injury. However, as stated before, it is offered no probative weight because no rationale has been provided. Id. Further, at the April 2017 Board hearing, the Veteran reiterated his contentions regarding his in-service back injury, and he, his brother, and his sister-in-law testified that the Veteran’s physical health has proceeded to decline in the last several years due to his claimed disorders. Based on the foregoing, the Board denied the Veteran’s claim for service connection for residuals of a low back injury in the August 2017 decision. However, the parties to the JMPR found that the October 2011 VA opinion did not adequately address the Veteran’s lay statements regarding the incurrence and continuity of symptomatology of his back disorder prior to his post-service work injury, to include the statements he made during his February 1983 VA examination in which he stated that he experienced back symptoms since his in-service back injury that occurred in 1962. Consequently, in December 2018, the Board remanded the case in order to obtain an addendum opinion addressing such matter. Following examination in October 2019, a VA examiner opined that the Veteran’s back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness in May 2020. In support thereof, he explained that the Veteran had an isolated event in service, normal X-rays in service, and a normal separation examination. He also noted that the Veteran had a silent medical history post-service for many years and Social Security records related a low back injury from working after service. He further noted that there was no objective data verifying continued low back pain post-surgery as claimed in the history provided in the February 1983 examination. However, as determined in the October 2020 remand, such opinion is inadequate as the sole basis for rejecting the Veteran’s lay statements cannot be the fact that there are no corroborating records. Accordingly, another addendum opinion was obtained in November 2020. At such time, the examiner opined that the Veteran’s back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he reasoned that the Veteran was diagnosed with an acute strain in August 1962 and the X-ray was normal. The Veteran’s separation examination was also normal and there was no mention of a chronic back issue. With regard to the February 1983 VA examination, the examiner noted that the Veteran reported low back pain since the August 1962 in-service incident and X-rays at the time revealed some degenerative arthritis. However, he observed that, in May 1982, the Veteran reported a workman’s compensation injury while employed as a police officer at the University of Arkansas Medical Center. X-rays at such time were normal and a diagnosis of a strain was noted. The examiner explained that such was noteworthy as the May 1982 X-ray was normal and the X-ray from the February 1983 VA examination revealed arthritis, indicating there was no chronic low back condition from the military incident. The examiner also noted that SSA records reflected the Veteran’s report that his back disorder started after lifting a tank while working in the oil fields in 1985, for which he filed a workman’s compensation claim and was treated conservatively until 1988 when he underwent surgical repair. He further reasoned that SSA records reflected the Veteran’s multiple jobs after service, which included police officer, oil field worker, auto mechanic, plumber, carpenter, truck driver, and electrician, were in occupations that created stress on the low back that could result in chronic pain and/or injuries, and the Veteran noted having to lift objects weighing around 100 pounds. Additionally, the examiner explained that medical literature noted that the vast majority of acute lumbar strains resolve without residual and all of the Veteran’s medical documentation agreed with such principle. He also noted that vague back complaints alone do not indicate a chronic back condition, and the Veteran’s employment history indicated that these complaints were episodic in nature because he performed jobs that required lifting and placed other stress on his back. Thus, the examiner concluded that it was less likely as not that the Veteran’s present back disorder was related to his active duty service. The Board accords great probative weight to the November 2020 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. In this regard, the examiner explained that, while the Veteran reported he was experiencing back symptoms since his 1962 in-service back injury during his February 1983 VA examination, May 1982 back X-rays were normal, indicating that the Veteran did not have a chronic low back condition from such in-service injury. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. The Board acknowledges that the Veteran believes that his current back disorder is related to his military service. However, while lay persons are competent to provide opinions on some medical issues, the cause of degenerative arthritis or disc disease falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the etiology of degenerative arthritis or disc disease involves an internal process, and specialized knowledge is necessary to determine whether a specific event led to such disorder. Accordingly, the Veteran’s opinion as to the etiology of his back disorder is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that arthritis of the back manifested to a compensable degree within one year of the Veteran’s separation from active duty. In this regard, as previously noted, X-rays from August 1962 and May 1982 were normal. Rather, the first indication of arthritis, which was described as only minimal degenerative changes at the time, was noted on X-ray in February 1983, which was over 20 years after the Veteran’s separation from service. Furthermore, while the Veteran has reported a continuity of back symptomatology since service, to include as reported at the February 1983 VA examination, and, in a November 2020 statement, stated that, to the best of his recollection, he made complaints regarding his back at every medical appointment, the Board finds that such statements are contradicted by contemporaneous evidence. In this regard, the Veteran’s May 1963 separation examination revealed that his spine was normal upon clinical evaluation, and he specifically denied experiencing any relevant symptomatology. Moreover, post-service treatment records dated from 1979 to 1981 are negative for any complaints, treatment, or diagnosis referable to a back disorder. Further, such reflect that, in May 1982, the Veteran sought treatment after injuring his back while lifting a car; however, he did not report a pre-injury history of back pain, and imaging did not reflect any relevant findings until after such post-service injury as reflected in February 1983 X-rays and a December 1985 CT scan. Cucuras v. Sec’y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder’s decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that “[m]edical records, in general, warrant consideration as trustworthy evidence, and that “oral testimony in conflict with contemporaneous documentary evidence deserves little weight”); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Furthermore, consistent with the foregoing treatment records, SSA records include a general physical examination, which was conducted in December 1992, and notes that the Veteran reported experiencing back pain since 1985, which was found to be consistent with his hearing testimony before SSA, and an orthopedic examination, which was conducted in December 1993, and reflects that injured his back in 1985 and 1991. Consequently, the Board finds that, as the Veteran’s reports of a continuity of back symptomatology since service is contradicted by the contemporaneous evidence, to include while seeking treatment, they are not credible and afforded no probative weight. Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Therefore, presumptive service connection, to include on the basis of a continuity of symptomatology, for arthritis is not warranted. The Board further notes that, in a November 2020 statement, the Veteran stated that never claimed he could pick up 100 pounds. However, the November 2020 VA examiner explained that the Veteran had several post-service occupations that added potential stress on his back, regardless of whether he could lift 100 pounds. The Veteran also reiterated that he was awarded SSA benefits based on his back disorder. However, the disabling nature of his back disorder is not at issue; rather, the matter before the Board is whether his current back disorder is related to his military service, and the SSA records do not indicate such a relationship. Rather, as noted previously, such reflect that Veteran’s report that his back disorder started after lifting a tank while working in the oil fields in 1985. Therefore, the Board finds that a back disorder, claimed as residuals of a low back injury, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for a back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.