Citation Nr: 21010991 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-28 617 DATE: February 26, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a current back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not 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 Navy from June 1967 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in August 2020 instructing the RO to obtain authorization from the Veteran to acquire medical records from Dr. P, a chiropractor in Houston, and to readjudicate the claim on appeal considering the May 2020 medical opinion. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO issued an August 2020 development letter to the Veteran asking for his authorization to obtain the records and details of any other outstanding records related to his treatment. The Veteran submitted a September 2020 authorization form. Then, a September 2020 Statement in Support of Claim was submitted by the Veteran’s representative which stated that the Veteran received treatment from Dr. P in the 1980s; however, he was unable to locate the current address for Dr. P and the Veteran did not have copies of his medical record. A subsequent inquiry was made by the VA in September 2020, but the request was rejected because the provider listed was non-private. The Board finds the RO substantially complied with the August 2020 remand directives. Entitlement to service connection for back disability. The Board notes that in April 1971 the Veteran initially filed a claim for entitlement to service connection for “back pain caused possibly…by hauling helium bottles.” In a June 1971 rating decision, the RO denied entitlement to service connection for “back condition and chest condition;” however, it specifically noted that the scope of the denied disability was “Pectus excavatum P.O. manifested by chest and back pain.” In June 2007, the Veteran filed a claim for entitlement to service connection for a “back condition” which had its onset in 1970. In a September 2012 rating decision, the RO treated the Veteran’s claim as a petition to reopen the claim of service connection for back pain that was previously denied in June 1971, and then denied the claim, because the Veteran had not submitted new and material evidence. In his August 2013 notice of disagreement, the Veteran’s attorney argued that the Veteran’s June 2007 claim of entitlement to service connection for a back condition should be separated from the pectus excavatum claim which was denied in April 1971, because they were two separate and distinct disabilities. Notwithstanding, the RO denied the Veteran’s claim of entitlement to a back condition on the merits in its September 2013 statement of the case. Similarly, at the May 2016 travel Board hearing, testimony was taken with respect to the elements necessary to substantiate a service connection claim, while the elements necessary to reopen a previously denied claim were not discussed. As such, the Board, in its September 2016 remand, characterized the issue as, “entitlement to service connection for a back condition.” The Veteran seeks entitlement to service connection for a back condition. Specifically, the Veteran testified that in the summer of 1969, he injured his back while carrying 5-foot-tall, 100-pound bottles up three flights of stairs. The Veteran indicated that he felt sore immediately after this, but that persistent pain in the thoracic spine did not become problematic until a month or two later. A review of the Veteran’s service treatment records includes the Veteran’s May 1967 Report of Medical Examination upon induction, which indicates that he underwent chest surgery in 1966 (prior to service) to correct pectus excavatum. An August 1969 treatment note indicated that the Veteran complained of chronic chest and back pain, which was diagnosed as postural back pain secondary to his 1966 pre-service sternotomy. A February 1970 treatment note indicated that the Veteran complained of pain in his upper back which was diagnosed as neuromuscular in nature. He reported chest and lumbar pain in February 1971. Pursuant to the Board’s September 2016 remand, the Veteran underwent a VA back condition examination in November 2016. The Veteran reported to the examiner that his thoracic spine began hurting after hauling helium bottles in Vietnam. In addition, based on a review of the record, the November 2016 VA examiner diagnosed the Veteran with multiple thoracolumbar vertebral compression fractures and osteoporosis spine. She indicated that the date of the diagnosis was 2016. She then opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, for the opinion, the examiner stated, among other things, “his service thoracic pain was secondary to pre-military pectus excavatum in February 1970.” In an October 2017 remand, the Board determined that the November 2016 examination report of the spine did not fully address the Veteran’s contentions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). The examiner did not provide any opinion as to whether the Veteran’s back condition was aggravated by an in-service injury or event. Therefore, in October 2017, the Board remanded this matter for an additional VA medical opinion to be provided, in order to clarify the nature and etiology of the Veteran’s claimed thoracic spine and osteoporosis disorders on appeal. Pursuant to the Board’s October 2017 remand, the Veteran underwent a subsequent VA examination in December 2017. The VA examiner opined that the Veteran’s back disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that there is evidence to indicate that the Veteran continued to suffer from his pre-existing back disability during service, which as the examiner noted, is typical of the disability. The examiner referenced the Veteran’s pectus excavatum surgery in 1966 and continued back pain while in service. Additionally, the examiner noted the Veteran’s 1971 X-ray indicating moderate pectus excavatum deformity and mild thoracic kyphosis. The examiner stated that the Veteran was diagnosed with osteoporosis in 2000, which increases an individual’s risk of fracture. Therefore, the examiner noted that the Veteran’s osteoporosis is likely the causative factor in the development of the Veteran’s compression fractures. Additionally, the examiner noted that medical literature supports the medical relationship between osteoporosis and fracture. Finally, the examiner opined that the progression of the Veteran’s back injury is not beyond normal progression for the disability. However, the December 2017 examiner failed to discuss the Veteran’s contentions that in the summer of 1969, he injured his back while carrying 5-foot-tall, 100-pound bottles up three flights of stairs, which, the Veteran argues, aggravated his back disability. Therefore, the Board found that the December 2017 examination was inadequate as it did not address the Veteran’s lay statements regarding his in-service injury and remanded this matter to obtain an addendum opinion regarding aggravation. Subsequently, in April 2019, a VA medical examination and opinion was obtained. The examiner stated that the Veteran is diagnosed with degenerative arthritis of the spine, vertebral fracture, and severe thoracic kyphosis secondary to pectus excavation. The examiner opined that the Veteran’s condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that the Veteran’s service treatment records document repeated complaints of sternum and back pain in conjunction with each other. Specifically, the examiner stated the Veteran’s separation examination notes that the Veteran’s “pectus excavatum surgically corrected prior to service is symptomatic,” however, the separation examination is silent regarding back pain. The examiner stated that based on the Veteran’s June 1971 x-ray, that showed mild thoracic kyphosis and moderate pectus excavatum, the Veteran’s congenital condition was not completely corrected surgically. The examiner noted that the Veteran’s congenital condition has continued as expected with a progressing degree of deformity from the mechanical pressures due to the Veteran’s congenital anatomy. An x-ray taken on the day of the examination showed minimal degenerative joint disease changes, which the examiner stated support gradual, age-related change, rather than changes with a post-traumatic origin. The examiner concluded that the military did not cause the Veteran’s compression fractures in 2011 or the osteopenia or the severe kyphosis the Veteran has today; instead, the examiner stated that these conditions are secondary to pectus excavatum which existed prior to the Veteran’s military service, during service, and progressed post service. The examiner stated that spine issues are not documented again until 2011, but “they were inevitable.” However, as discussed above, the August 2018 Board remanded this matter with the specific instructions for the VA examiner to discuss the Veteran’s contentions that in the summer of 1969, he injured his back while carrying 5-foot-tall, 100-pound bottles up three flights of stairs, which, the Veteran argues, aggravated his back disability. However, the April 2019 examiner, although noting the history provided by the Veteran, did not further discuss these contentions. Thereby, the Board found that a remand was warranted for an addendum opinion to be obtained again. The addendum opinion was received in December 2019. However, while on remand, the Veteran submitted a private medical opinion date May 2020. It was not properly considered by the RO. In addition, the Veteran testified that he saw a chiropractor in Houston, Dr. P., during the 1980’s after his discharge from the military. Therefore, the Board remanded again for the RO to consider the May 2020 medical opinion and for the RO to attempt to obtain records from the doctor. As stated above, the RO took substantially steps to obtain the records. The December 2019 medical opinion concluded that the 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 while the Veteran noted an injury to the spine in 1969 while carrying helium bottles up three flights of steps, this was acute and not a chronic diagnosed condition manifested as a result of this injury. In 1970, the Veteran was noted to have neuromuscular pain, back strain and pleuritic pain. In 1971, the Veteran's imaging studied noted pectus excavatum deformity, mild thoracic spine kyphosis and lumbar lordosis mildly increased. The Veteran's separation examination in 1971 noted normal spine. In 2011, the Veteran's imaging studies noted old compression fractures and the Veteran was diagnosed with osteoporosis around 2006. There was a gap of 40 years between service and diagnosed compression fractures. There was no evidence to suggest the in-service injury cause a chronic lumbar/thoracic spine condition. In the May 2020 private medical opinion, the physician stated that the Veteran was born with pectus excavatum and underwent surgery in 1966. He occasionally had pain in the sternum area of his ribs while in service. By the time he left the Navy, he did not have any pain in the anterior ribs of his chest. However, the examiner also stated that “early on after the service, when he saw the chiropractor and was told that he had vertebral fractures at a young age is indicative that he more likely than not had vertebral fractures in the incident with the helium bottles.” He further stated that “It is my medical opinion that the impairments and disabilities set forth in this report were, more likely than not, due to and a consequence of the veteran’s military service.” The Board does not find the May 2020 medical opinion to be convincing because it appears to be based in large part on an inaccurate history, namely that the Veteran had been found to have vertebral fractures early on when seen by a chiropractor after service. The Board notes that there are no contemporaneous records from shortly after service to substantiate that history, and it is contradicted by the report of a spine x-ray done by VA in June 1971 which did not show any fractures. The Board acknowledges the Veteran’s assertion that his back disability was related to his military service. However, lay persons are not considered competent to medically attribute hypertension to another disability as doing to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran’s back disability and his military service. (Continued on the next page)   Overall, the most convincing evidence shows that the Veteran’s pectus excavatum with associated back pain pre-existed his military service. The accumulation of all the medical records and examinations indicate that the Veteran’s pre-existing condition was not permanently aggravated beyond its natural progression by his military service. In addition, his current back problems are not shown to be related to any lifting injury in service. Accordingly, the criteria for entitlement to service connection for a back disability has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a back disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.