Citation Nr: 21010060 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-29 088 DATE: February 24, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran had back complaints in service; however, they resolved in service. 2. The earliest post-service clinical evidence of back complaints is more than two decades after separation from service. 3. There is insufficient evidence to support a finding of continuity of symptoms since service. 4. The most probative evidence of record is against a finding that the Veteran has a current back disability causally related to, or aggravated by, service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLSUIONS The Veteran had active service from December 1965 to June 1972. In May 2017, the Veteran and his spouse (C.W.) testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in September 2018 when the Board denied the Veteran’s claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Order, the Court vacated the Board’s denial and remanded it for action consistent with a Joint Motion for Remand (JMR). In October 2020, the Veteran’s attorney submitted additional evidence with a waiver of Agency of Original Jurisdiction consideration. The Board finds that it may adjudicate the claim. Service Connection Entitlement to service connection for a low back disability The Veteran has been diagnosed with degenerative disc disease (DDD) and osteoarthritis of the spine. He contends that service connection is warranted due to his military occupation specialty (MOS) as a construction machine operator, including heavy lifting and carrying of sandbags and cement. The Board finds, as discussed in detail below, that service connection is not warranted. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). The Veteran testified at the May 2017 hearing that while in Vietnam, he did a lot of heavy lifting, packing sandbags for a month or longer, building revetments and protective areas, and picking up explosive ordnance, and that his back really bothered him at that time. A private May 2012 clinical record also includes his assertion that he reported a back injury packing sandbags in Vietnam. The Veteran was in Vietnam from November 27, 1969 to November 1970 with a principal duty of construction machine foreman. He is in receipt of the Bronze Star Medal for work in a combat environment. However, the records do not reflect that he actually engaged in a fight/combat with the enemy. A finding that the Veteran engaged in combat with the enemy requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). The Veteran has not asserted that he injured his back while actually engaged in combat (e.g. while under fire, while firing at the enemy), rather his assertion is that while in a combat environment and working in construction (in the field), his back hurt. The Board has reviewed the Veteran’s service treatment records (STRs) for his time in Vietnam, however, they are unremarkable for back complaints. They do note that he had a cloudy ear drum and ear pain (April 1970), and diarrhea for two days (August 1970). If he had chronic back pain or a significant injury to the back, it seems reasonable that he would have reported it and that it would have been noted in the claims file as his STRs note that he sought treatment for these other conditions. Assuming arguendo that he incurred a back injury in combat, the Board still finds that he did not have continuity of symptoms since then, and the most probative clinical opinion, as discussed below, is against a finding that his current back disability is due to service. 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) do not establish entitlement to service connection for a combat Veteran; instead, they merely aid him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that “a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability”). A veteran must still generally establish the claim by competent medical or other (lay if acceptable) evidence tending to show a current disability and a correlation between that disability and the combat event in service. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so too is the disability due to the combat injury in service. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). But to establish entitlement to service connection, there must be evidence of a current disability and a causal relationship (meaning “nexus”) between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A March 29, 1971 STR (when the Veteran was in Germany) reflects that he complained of pain in the back. He reported the occurrence of back pain starting a week earlier. He was diagnosed with low back strain, and given bed rest for 48 hours. He continued to be evaluated that week and was allowed to return to light duty but not exercise. An x-ray showed no significant abnormality. An April 18, 1971 record reflects that his back had been painful for 2-3 weeks but was now asymptomatic. It was noted that he “1st” had back pain two week ago. He had a negative examination. The STRs are negative for chronic back pain since Vietnam, or an injury in Vietnam, or even back pain in Vietnam. The records in March and April 1971 support a finding of onset of back pain in March 1971, a duration of symptoms for approximately 3-4 weeks in duration, and he was then asymptomatic. There are no subsequent STRs noting back complaints in the Veteran’s remaining service. His March 1972 Report of Medical History for separation (ETS) (expiration of term of service) reflects that he had, or had previously had “back trouble”; however, he also reported that currently he was in “good health”. Upon examination, his spine was noted to be normal. A June 1972 Statement of Medical Condition reflects his statement that there had been no change in his medical condition since his separation examination. The Board notes that the Veteran was not necessarily complaining of current back trouble in his March 1972 Report of History, but merely that he had, or previously had back pain. Notably, he reported that he had, or had previously had, rheumatic fever, and the record show that it had occurred when he was four years old. The Veteran separated from service on June 16, 1972. The day prior to separation, he completed an application for VA compensation and stated that he had had a back injury in September 1971; he explained that it was a pulled muscle and he had been treated on September 15, 1971. Notably, he did not report having had any injury in Vietnam, or subsequent treatment in the remaining ten months of service from September 1971 to June 1972. A September 1971 STR is not associated with the claims file. The Veteran was scheduled for an examination in July 1972, but he failed to report. Four decades later, in 2012, the Veteran filed to reopen his claim for service connection. He stated that he had injured his back in 1970 and been treated in Vietnam. In a March 2012 VA Form 21-4138, he stated that while he was in service, he was treated for two months for a heavy strain to his back, that he had been given bed rest, and that his back had never been the same since then. However, in his 2013 Notice of Disagreement, he stated that he injured his back while packing sandbags in Vietnam, that it was “very painful” and that he received no treatment. He further stated that he reinjured his back in service while carrying six 80-pound bags of cement, that he received “very poor care”, that he did not receive an x-ray for months. He also stated that he was told by the doctor in service that the military does not treat back injuries, that he was put on a week of bed rest, and then put on light duty. He further stated that months after his injury, he had an x-ray and that the doctor reviewed the x-ray and told him that he did have a back injury. In his July 2014 VA Form 21-4138, he stated that he was treated by a medic in Vietnam with medication. He reported that he treated himself with over the counter medication after service until he could not take the pain anymore. He has also reported that he was not given an x-ray until more than a year and a half after his injury. Thus, he has given conflicting statements as to whether he was treated or not treated in Vietnam and when he was given an x-ray. The Board find that the Veteran’s recitation, to include the timeline, is less than credible. In making such a credibility finding, the Board is not finding that the Veteran has any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. The Board also finds that any clinical opinion based on such unsupported history lacks probative value. The Board find that the records contemporaneous to service are more credible than statements made decades later and for compensation purposes. Again, the STRs note that the Veteran reported at the end of March 1971, that he had back pain of approximately one week in duration. In April 1971, he reported 2-3 weeks of pain. An April 5, 1971 x-ray was remarkable. The Veteran had a normal spine upon separation. There are no clinical records for more than 25 years after separation from service in 1972 noting back complaints. Private records note the following complaints: recurrent sinus problems (September 1975), chest tightness for two weeks (April 1982), intermittent chest pain for two years (May 1984), follow-up for chest pain (May 1984), groin strain (August 1987), upper right quadrant abdominal pain and pain in the groin (September 1988), abnormal liver function tests (November 1988), liver check-up (December 1988), foreign body in right thumb causing pain for several weeks (August 1991), and dermatitis (January 1997). The Board find that if the Veteran had chronic back pain since service, it would have been reasonable for him to have sought treatment for it, and for it to have been noted in the clinical records as were his other complaints. A June 1997 private clinical record notes that the Veteran was seen for a two to three-month history of low back pain. August 1997 private records note a long-standing history of low-grade backache. The Veteran reported that “this time” it had begun in June 1997. It was noted that over the past few years, he noted increasing pain in the buttocks and down the right leg. X-ray revealed that he had minimal degenerative disc disease with narrowing at L4,5. Subsequent 1997 records note that he was treed with Daypro, muscle relaxant, and epidurals. A June 2003 Vancouver Clinic record notes that the Veteran was seen for a severe back strain. The record reflects that he “has had back problems in the past and has severe degenerative disc disease and osteoarthritis of the lumbar spine”. It was also noted that he had been treated in the past with epidurals. The record reflects that the Veteran “was digging some post holes for the past few days and apparently aggravated his back”. Thus, the earliest clinical post-service complaint is more than 25 years after separation from service, and at that time, there was no record noting that it had been chronic since service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A July 2003 private record reflects that the Veteran had been clearing brush in June 2003 and later that evening had a significant onset of right buttock and right lower extremity pain which was severe. It was noted that he had a long history of back pain but has never had significant leg pain like this before. A July 2003 Southwest Washington Regional Surgery Center record reflects that the Veteran had surgery due to a right L4-5 disc herniation. The Board notes that a “long history” is not defined, and the Board declines to find that it equates with thirty years. Rather, it could have been substantially less than that (i.e. from 1997). An April 2014 VA Disability Benefits Questionnaire examiner considered the Veteran’s reported history as well as the pertinent clinical records and opined that it is less likely as not that the Veteran has a current back disability causally related to service. The examiner found no supporting evidence of a chronic back condition or residual of a back condition on separation from service. The examiner also found that the STRs support an acute back strain in service, that no back condition was diagnosed upon separation in 1972, and that there are no records noting back complaints until 1997. The examiner opined that the Veteran’s current back disabilities are more likely due to aging and cumulative years of activities in his lifetime for which most were outside of the military service. The examiner also opined that the Veteran’s ability to work in heavy labor jobs for at least ten years after service supports that he did not have back residuals after his service. The Board finds the opinion probative, and that the examiner did not need to consider the Veteran’s report of chronic symptoms since service, or the lay statement of his wife as to the same, because those statements are less than credible. The claims file includes June 2017 correspondence from Dr. E.D. (Vancouver Clinic) who opined that it is at least as likely as not that the Veteran’s reported two back injuries in service played a significant role in his chronic back pain. The Board finds that this opinion lacks significant probative value because it does not contain adequate rationale. Moreover, it does not reflect that Dr. E.D. reviewed the pertinent clinical records from service. The claims file also includes an October 2020 opinion by Dr. P.C. (Avitus Health) that it is more likely than not that the Veteran’s claimed injuries in service were the inciting events which eventually led to his severe and debilitating lumbar DDD. The Board finds that this opinion is less probative than that of the 2014 DBQ examiner for several reasons. Dr. P.C. stated that the Veteran explained that for most of his post-service career he worked as a painter where there “wasn’t any lifting or heavy labor”, and then worked as a parts straightener where he “occasionally had to do some lifting”. The Board finds that this is an incomplete and/or inaccurate accounting of the Veteran’s employment history. Records reflect that post-service, the Veteran was a logger until 1980, which would be approximately eight years. The Board finds that a logger can reasonably be expected to do strenuous activities such as lifting, climbing, moving heavy branches, and working on uneven and difficult terrain. Thereafter, the Veteran worked for a large industrial company (A.) as a carbon setter; a carbon setter works in a processing plant and is a manual laborer. A May 1984 record reflects that while discussing his work, the Veteran reported that “sometimes he does quite heavy physical work”. He did not begin working until a painter and sander until approximately 1987, essentially 15 years after separation from service. Thus, Dr. P.C.’s opinion, which was based on no heavy labor and only occasional lifting for most of the Veteran’s post-service employment lacks probative value. Prior to his 1997 complaints of back pain, the Veteran had 15 years of manual labor which can reasonably be found to have included heavy physical labor and lifting. Dr. P.C. opined that degenerative findings appear to develop over a long period of time; however, this does not support that the Veteran’s current disability began in 1972 as opposed to the years after when he worked in manual labor. His degenerative changes were noted in 1997, more than 25 years after service, and they could have begun during that time period. Dr. P.C. found that most 51-year-old people, regardless of their activities, do not have severe degenerative spine disease. However, the 1997 clinical record, when the Veteran was 51, reflects that the Veteran’s degenerative disc disease with narrowing at L4-5 was only minimal, not severe, at that time. Dr. P.C. relies on the lay statements of the Veteran’s spouse (C.W.) as to the Veteran’s ongoing intermittent pain after his in-service injury. However, the Board finds the statement as to back pain ever since Germany is less than credible given the record as a whole and as noted above. For instance, she stated that the Veteran’s back was never the same after service in Germany, that he was like a different person in his ability to do stuff, and this led to his surgery in 2003; the Board find this less than credible given that he was able to work in a manual labor occupation for 25 years with no clinical treatment or complaints. In addition, when he did complain in 1997, it was after clearing brush and digging holes, which is manual labor. Moreover, there is no evidence that he was let go from his job as a logger due to physical impairment; he stopped working due to the eruption of Mount St. Helens in 1980. The contention that his back bothered him so much that he was “never the same” since 1971 is not supported by the record as a whole. Finally, at least three of the articles cited by Dr. P.C. reflect that it has been historically believed that one of the strongest risk factors for the development of lumbar DDD is smoking, that smoking may be a reason for early degeneration, and that unquestionably disc degeneration is influenced by smoking and obesity. The record reflects that the Veteran had a 40 to 50 pack-year history of smoking and he was obese at the time of his complaints in 1997. Dr. P.C. failed to discuss why these factors were not relevant, and why the Veteran’s military service was more likely the cause of his current back disability, given the articles he cited. (Continued on the next page)   The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). For the reasons and bases noted above, the Board finds that the private opinions cited above are less probative than the 2014 DBQ opinion. The most probative evidence is against a finding that the Veteran has a back disability causally related to, or aggravated by service. For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.