Citation Nr: 21009535 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-35 293 DATE: February 22, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include mild degenerative disc disease (DDD) of the L2-L3 vertebrae and degenerative arthritis, is denied. FINDING OF FACT A chronic lumbar spine disability, to include mild DDD of the L2-L3 vertebrae and degenerative arthritis, did not have its onset during active service, was not manifested by arthritis within one year of service discharge, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include mild DDD of the L2-L3 vertebrae and degenerative arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1977 to June 1980. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2018 videoconference hearing and a transcript of the hearing has been associated with the claims file. The Board previously denied the Veteran’s claim in a March 2019 decision, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) requesting that the Court remand the claim for additional development, which the Court signed that same month. Thereafter, the matter was remanded by the Board in July 2020 in order to obtain an adequate VA medical opinion. Given the development discussed further herein, the Board finds that there has been substantial compliance with the July 2020 Board remand directives, such that the matter is properly returned to the Board for adjudication. Entitlement to service connection for a lumbar spine disability, to include mild DDD of the L2-L3 vertebrae and degenerative arthritis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, 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. For certain chronic diseases, including arthritis, which is also known as degenerative joint disease, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The Veteran claims that his current lumbar spine disability is related to back injuries incurred during his active service. In an April 2015 statement, the Veteran reported that he first injured his low back during boot camp and was put on light duty for about a week, as well as a second subsequent injury to his back for which he was again placed on light duty. He stated that after his period of active service, he continued to have back pain for over the years. Within his September 2015 VA Form 9, Appeal to the Board, the Veteran reported that he was treated by a chiropractor for his low back in the 1980s and 1990s. At the October 2018 Board hearing, the Veteran testified he had injured his low back on the obstacle course during basic training, which he described as a mishap, after which he was sent to the medical officer and was put on light duty for a week or so. He also described a second injury while doing physical training, such as running and sit-ups, and stated that his back seized up on him while performing sit-ups. He testified that after this, he was sent to an evaluation board, which found that he was fit for duty, although he stated that he was still having issues with his back when they found him fit for duty. He testified that he was put on light duty and finished up his service by doing administrative work, which involved basically sitting at a desk. He reported that he had persistent back pain from active service until the present time. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include mild DDD of the L2-L3 vertebrae. The reasons for this decision follow. As to evidence of a current disability, a May 2015 VA examination documents a diagnosis of DDD of the lumbar spine. Thus, this first criterion is met. Regarding evidence of an in-service disease or injury, service treatment records document that the Veteran experienced problems with his back for over a year during service. A November 1978 statement written by the Veteran in response to an October 1978 medical board finding that he was fit for duty shows he was contesting the “fit for duty” finding. The Veteran explained that he had been having problems with his back for over one year. He wrote that from the time his medical board started until now, his back had been getting worse and not better. He stated that he had been told it takes time for the back to heal, but he had been telling his doctors that he was not getting better. The Veteran described being limited in what he could do and was unable to keep up with the Marine Corps training standards. He wrote he had not been able to run a physical fitness test (PFT) since boot camp and was limited in what he could lift, and he asked that the Marine Corps reconsider the finding that he was fit for duty. Later that same month, in November 1978, the Physical Evaluation Board documented that it had considered the November 1978 rebuttal statement from the Veteran and there was no change in the finding that the Veteran was fit for duty. A subsequent February 1979 letter from the Central Physical Evaluation Board documents that the evaluation board had found several members of the Naval Service, including the Veteran, to be physically fit to perform the duties of his/her office, grade, rank, or rating on active duty. Thus, service treatment records document the Veteran’s report of ongoing back pain for over one year, and, as such, the in-service element of the Veteran’s direct service-connection claim is also met. While an in-service disease or injury is shown in the service treatment records, the Board finds that there is no probative evidence that arthritis of the lumbar spine shown by x-ray evidence manifested within one year of the Veteran’s service discharge so as to warrant a grant of presumptive service connection for arthritis as a chronic disease. The first showing of degenerative changes was after the 2011 motor vehicle accident, which is decades following service discharge. Thus, service connection on a presumptive basis involving a chronic disease is not warranted. As to evidence of a nexus between the current disability and service, two VA opinions were obtained. A May 2015 VA examination report documents a diagnosis of mild degenerative disc disease L2-L3 in 2011. The examiner wrote that the Veteran had alleged a lumbosacral injury during boot camp but was not sure of the mechanism of the injury. The examiner wrote, “No trauma reported.” The examiner wrote that the Veteran reported chronic low back pain persisting since active duty and that the symptoms had been variable and exacerbated by standing for prolonged periods of time. The examiner noted the Veteran had been evaluated and treated by a chiropractor in 2012. The Veteran reported he was a convenience store manager for some years after service, which job required standing for prolonged periods of time. Following the physical examination, the VA examiner concluded that it was less likely than not that the mild degenerative disc disease L2-L3 was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran claimed lumbosacral injury while on active duty and at boot camp, with ongoing low back pain subsequent to active service. The examiner noted that the Veteran was allegedly evaluated at a military treatment facility (MTF) for this condition, with treatment rendered consisting of light duty; however, there were no MTF records available for exact diagnosis or treatment modalities rendered at the time of alleged injury and no documentation that the Veteran was evaluated or treated for the alleged injury while on active duty. The examiner stated that, although there were no MTF records available, the injuries sustained could have resulted in pain sequela that persisted throughout life. The examiner noted that there were treatment notes from a civilian chiropractor regarding treatment for back injuries sustained in a motor vehicle accident in June 2011. Due to the absence of supporting evidence of a persistent back condition in the medical records, the examiner was unable to link the Veteran’s current lumbar disc disease to a single event of back pain in service. Notably, as discussed in the parties’ December 2019 JMR, the May 2015 VA opinion above was found to be inadequate, as the VA examiner relied on the absence of corroborating treatment records to find that the Veteran’s current lumbar spine disability was less likely than not to have been incurred in service. Additionally, the May2015 VA examiner stated that the Veteran had “a single event of back pain in service;” however, the November 1978 letter written by the Veteran while still in service shows that his reported back pain had been ongoing for at least one year. Thus, there was more than a single event of back pain in service or at least ongoing back pain. Following the July 2020 Board remand, which requested additional development in accordance with the December 2019 JMR, VA obtained an additional VA medical opinion in September 2020. At that time, following a review of the claims file, a VA examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the claim was complicated, primarily due to the insistence of the Veteran that he has had significant low back pain that was precipitated by his time in service. The examiner wrote the Veteran stated that he developed low back pain while doing sit ups during boot camp, was placed on light duty for 2 weeks, then released back to regular duty. The examiner noted the Veteran’s November 1978 complaint of pain in the back for over a year, which statement was written to contest a finding that he was “fit for duty.” The examiner also noted the Physical Evaluation Board (PEB) that found the Veteran was fit for duty and in a February 1979 letter from the Central PEB, the Veteran was listed among those noted as fit for duty. The examiner stated that there were no additional records of treatments or complaints of pain found until the Veteran was involved in a rear end collision on June 17, 2011. The examiner noted that subsequent to that injury, the Veteran reported that all of his current symptoms were related to the motor vehicle accident. The examiner acknowledged that the Veteran then went on to be seen briefly by chiropractic, with imaging studies of the lumbar spine that were relatively unremarkable, the only finding of significance was of mild degenerative disc disease at L2-L3. Based on the lack of continuous care, the paucity of contemporary records indicating ongoing and significant low back pain while in service and the prevalence and incidence of low back pain in the U.S. being quite high, the examiner concluded that it does not appear that there is a contiguous record linking the Veteran’s low back pain to ongoing treatment between then and the June 2011 motor vehicle accident. Rather, the examiner concluded that the motor vehicle accident, which occurred 33 years following his report of back pain during active service, is the most likely etiology of his current complaints, diagnosed as lumbosacral strain, degenerative arthritis, and degenerative disc disease. Given a review of the evidence discussed above, the Board that the preponderance of evidence weighs against a finding of a nexus between the Veteran’s current lumbar spine disability and his active service. Significantly, the Board affords the most probative value to the September 2020 VA examiner’s negative nexus opinion, as the examiner performed a careful review of the Veteran’s in-service complaints and lay history, and concluded that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also provided a detailed rationale for the conclusion reached. While the prior April 2015 VA opinion was found inadequate based upon its reference to an absence of corroborating treatment records and its reference to a single episode of in-service back pain, the September 2020 VA examiner specifically noted the Veteran’s November 1978 complaint of back pain for over a year, after which he was found to be fit for duty, without further treatment for low back pain while in service. Additionally, the examiner pointed out that after the Veteran’s June 2011 motor vehicle accident, he attributed all of his symptoms to the motor vehicle accident, which is the most likely etiology of his current complaints. Thus, the September 2020 VA examiner’s negative nexus opinion is not based solely upon the absence of corroborating treatment records, but the totality of the evidence, including a lack of continuous care, the paucity of contemporary records indicating ongoing and significant low back pain while in service, the general prevalence and high incidence of low back pain in the U.S., and the Veteran’s lay and medical history, including consideration of his June 2011 motor vehicle accident, where, following this accident, the Veteran consistently attributed the pain he was experiencing at that time to the June 2011 motor vehicle accident. The examiner noted that no additional records of treatment or complaints of pain were found until the Veteran was involved in a rear-end collision on June 17, 2011. This is a fact that the Board finds is accurate in that the Veteran was not having chronic ongoing low back pain in the years leading up to the June 2011 accident, which is explained in detail below. Thus, the examiner’s opinion is based on the facts that the Board finds are accurate—that the Veteran was not having ongoing low back pain in the 20 years leading up to the motor vehicle accident. Therefore, the Board finds this medical opinion is highly probative. The Board has considered an October 1, 2018 VA treatment record referred to by the Board and the Court, albeit inaccurately, as a statement by VA Dr. M.A.C. The October 1, 2018 VA treatment record was, instead, authored by Dr. C.S.O., who is a VA chiropractor. The reason it was thought that such record had been authored by Dr. M.A.C. was because the seemingly second page of the October 1, 2018 VA treatment record shows Dr. M.A.C. as signing that record. However, in looking at the VA treatment records, which had been submitted by the Veteran, it is clear that the pages were not in chronological order when they were scanned. For example, in the upper right-hand corner of the October 1, 2018 VA treatment record, which shows it was authored by Dr. C.S.O., it states, “Page 7 of 227.” On the next page, which has Dr. M.A.C.’s name, it shows in the upper right-hand corner, “Page 129 of 227.” Dr. M.A.C. signed that document on August 12, 2018, which is clearly not a continuation of the October 1, 2018 record. Nevertheless, when VA obtained the VA treatment records from April 2015 to September 2020, the records are in chronological order, and the entire treatment record from October 1, 2018 is part of these records. Within the October 1, 2018 record, it shows that the Veteran presented at that time for follow-up with regard to a chief complaint of chronic low back pain, with distant onset, nearly 40 years ago while serving with the Marines. The Veteran reported that the pain began during his service in the Marines, exacerbated by the daily rigors of service, and especially by running and sit-ups. The VA chiropractor wrote that given the time of onset and temporal association with abrupt increase in physical activity, “it is possible that the [low back pain] is service-related.” The chiropractor noted also that the Veteran reported a motor vehicle accident 6-7 years ago that resulted in an exacerbation of his familiar pain. To the extent that the Veteran relies on the VA chiropractor’s statement to support a nexus between his current lumbar spine disability and his active service, the Board finds that it is of little probative value. First, Dr. C.S.O.’s statement that “it is possible” that the Veteran’s back pain is related to service is speculative in nature, and therefore, insufficient to constitute probative medical nexus evidence. Additionally, the examiner had written that the Veteran had chronic low back pain for 40 years, which is a fact that the Board does not find is accurate, which is explained below. Further, to the extent that this medical opinion has probative value, the Board finds it is outweighed by the September 2020 VA opinion, which opinion was based on a review of the evidence of record, which included the Veteran’s consistent reports within the private medical records that all of his low back symptoms began the day following the June 17, 2011, motor vehicle accident, which is an important fact that Dr. C.S.O. did not consider, and which fact the Board will address in more detail below. At the time of the June 2011 motor vehicle accident, the Veteran was not reporting an exacerbation of his low back pain, but rather the onset of such pain. Within the December 2019 joint motion, the parties had determined that the Board erred in failing to provide an adequate statement of reasons or bases for its finding that the Veteran did not experience ongoing lumbar spine pain for a 25-year period. Thus, as set forth below, the Board details those factual bases. The record clearly reflects that the Veteran did not report low back pain between 1990 and June 2011, when the motor vehicle accident occurred, much less report consistent low back pain. Instead, the record amply demonstrates that the Veteran began reporting consistent low back pain immediately after the motor vehicle accident. In several private medical records, it was documented on multiple occasions that the Veteran’s current low back symptoms had begun as of June 18, 2011. For example, a June 21, 2011 private treatment record shows that the examiner, when addressing the Veteran’s medical history, wrote that the Veteran presented with low back pain, neck pain, bilateral shoulder pain, upper back pain, and numbness in the hands and fingers. The examiner described the accident and then wrote, “P[atien]t reports all current symptoms began following [motor vehicle accident].” In a separate June 21, 2011 private treatment record, the examiner wrote that the Veteran’s symptoms began the morning following the motor vehicle accident. In a third June 21, 2011, private treatment record, it shows that the response to, “When did condition begin,” was “6-18-11,” which is the day following the motor vehicle accident. In this same record, the Veteran was asked, “Has this area been a problem before?,” and he checked, “No.” In another June 21, 2011 private medical record, the examiner documented the date of “injury/illness” as June 17, 2011, and diagnosed “[a]cute” lumbar sprain. Medline Plus, from National Library of Medicine, explains acute vs. chronic conditions. It states, “Acute conditions are severe and sudden in onset. This could describe anything from a broken bone to an asthma attack. A chronic condition, by contrast is a long-developing syndrome, such as osteoporosis or asthma.” https://medlineplus.gov/ency/imagepages/18126.htm. Thus, the examiner was not diagnosing a chronic low back disability at that time, but rather an acute disability, which is consistent with the Veteran reporting that the onset of his symptoms began the day following the June 2011 motor vehicle accident. Additionally, the Veteran’s records on this issue at the time of the motor vehicle accident and more than one year later further demonstrate the absence of consistent back pain prior to June 2011. For example, in a June 2011 private medical record, completed at the time of the accident, the Veteran was asked whether he had received previous chiropractic care, and he checked, “Yes” and wrote 1980 or 1990 in St. Paul (the third number is difficult to read, but it is either an 8 or a 9, but not both, but looks more like an 8 because it does not resemble the 9 in “19”). Whatever the case, the record still reflects a report of one incident of prior treatment to the accident. More than one year after the accident, in a November 2012 private medical record, the Veteran had written that the last time he had received chiropractic care was 25 years ago and added, “Nothing Lately.” The November record is consistent with the fact that only one isolated report was made pertaining to the Veteran’s low back prior to the motor vehicle accident. Indeed, as further demonstrated in several areas of this November 2012 record, the Veteran’s responses, once again, were consistent with the above facts and what the Veteran reported in June 2011. For example, when this private treatment record asked for “Date of injury,” the Veteran wrote 6-17-11; and when asked, “When did your complaint(s) begin?,” the Veteran wrote, “6-18-11.” Thus, in multiple private medical records covering a period of approximately one year and five months from 2011 to 2012, the Veteran was very specific in reporting that the onset of the current pain he was experiencing in his low back had begun on June 18, 2011. He was not reporting a chronic problem that had been going on for years, which had worsened or had been exacerbated (as documented in the October 1, 2018 VA treatment record) following the motor vehicle accident, but rather the onset of his pain in his low back as starting the day following the motor vehicle accident. Within one of the June 21, 2011, private medical records, the examiner documented that the Veteran reported a history of a left ankle fracture and surgery and denied a history of “other trauma, illness, hospitalizations.” This was the same document where the examiner wrote that the Veteran’s symptoms began the morning following the motor vehicle accident. Thus, the Veteran had the thought process to think about past trauma, illnesses, injuries, and hospitalizations he had experienced, and he reported a left ankle injury. This would have been an opportunity for him to report prior low back pain and/or symptoms as part of his medical history, as it would have been relevant to his current complaints at that time, and he did not report such, but specifically denied a history of other “trauma, illness, or hospitalizations.” The Veteran’s failure to report ongoing past chronic pain involving his low back, at a minimum, supports a reasonable inference that the Veteran had not been having chronic low back pain in the years leading up to the June 2011 motor vehicle accident. If he had experienced such chronic symptoms, it would seem highly likely that he would have relayed experiencing prior low back pain more recently than 25 years ago or in 1980 or 1990 (not both, as he reported one year only), since the onset of his current pain was discussed on multiple occasions, and his report of medical history was consistent for more than one year that all his low back symptoms were from the June 17, 2011 motor vehicle accident. In other words, if the Veteran had been experiencing chronic low back pain in the years leading up to the motor vehicle accident, he would have reported prior pain when specifically asked that question. Instead, the record shows that the he documented, “Nothing Lately,” when asked about his prior chiropractic care. All the facts documented within these 2011 and 2012 private medical records that were documented either by the Veteran or the medical professional relaying what the Veteran told the medical professional would lead a reasonable person to conclude that the Veteran had not been experiencing chronic low back pain for more than 20 years at the time of the June 2011 motor vehicle accident. The Board accords what is documented in these private medical records high probative value, as the Veteran was seeking medical treatment, and statements made while seeking medical treatment tend to be highly reliable. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (explaining that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care). Thus, in reaching this conclusion, the Board is not relying exclusively on the absence of medical records to question the credibility of lay statements, but is relying the facts documented within the June 2011 and November 2012 private medical records to conclude that the Veteran did not experience persistent low back pain from service until 2011. Again, within multiple records, the Veteran consistently and affirmatively documented and/or reported the onset of his low back pain as occurring the day following the June 2011 motor vehicle accident. For these reasons, the Board finds that the Veteran’s allegations of chronic low back pain from service and leading up to the June 2011 motor vehicle accident are not credible. While the Veteran is competent to report observable symptoms that he experienced in service and since service, he is not competent to directly link a current lumbar spine disability to active service, which requires medical expertise. In this regard, the question of causation in this case involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion regarding a nexus is nonprobative evidence. In conclusion, for all the reasons discussed above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a lumbar spine disability, to include mild DDD of the L2-L3 vertebrae and degenerative arthritis. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.