Citation Nr: 21012623 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-53 157 DATE: March 4, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board notes that the Veteran submitted a VA Form 21-22 in December 2020, naming Disabled American Veterans (DAV) as his representative. See December 2020 VA Form 21-22 Appointment of Veterans Serv. Org. as Claimant Rep. However, in a January 2021 letter, VA informed the Veteran that DAV had not signed the form, and asked the Veteran to have DAV sign and return the form for processing. The letter also informed the Veteran that if no response was received within 30 days of the letter, the Board may proceed with adjudicating his claim. See January 2021 Subsequent Development Letter. The Board acknowledges that the 30 day period has elapsed, and no response to the January 2021 letter has been received. However, the Board notes that the most recent valid appointment of a representative, dated in December 1979, appointed DAV as the Veteran's representative. To date, the December 1979 VA Form 21-22 has not been revoked, and DAV has continued to represent the Veteran by submitting an Appellant's Brief in December 2020. See December 1979 VA Form 21-22 Appointment of Veterans Serv. Org. as Claimant Rep; December 2020 Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief). Accordingly, the Board finds that DAV is the Veteran's proper representative for this appeal, and will proceed with adjudicating of the Veteran’s claim. See 38 C.F.R. § 14.629. By way of background, this matter was initially before the Board in December 2019. At that time, the Board reopened the Veteran’s claim of entitlement to service connection for a low back disability and remanded the issue for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a low back disability is denied. During the June 2019 Board hearing, the Veteran testified that his low back disability manifested while he was serving on active duty. Specifically, the Veteran reported that he began experiencing back pain while he was working in the motor pool, which required him to move tires for large trucks. The Veteran further testified that he reported the back problem to his corpsman and received heat treatments but stated that he never fully recovered and continued to experience pain during and after service. The Veteran stated that he self-treated with unspecified over the counter medications after discharge because he did not have transportation to a VA medical center. The Veteran reported that he began receiving treatment at the New Orleans VAMC in 1974 and has continued to receive treatment to the present. The Veteran also stated that he worked mostly indoor jobs after his discharge from service because his back pain prevented him from working in a more “regular” occupations. See June 2019 Hearing Transcript, pages 3-6. Additionally, in a statement dated in July 1980, the Veteran stated that he received treatment in 1975 at Fort Chaffee, Arkansas. See July 1980 VA 21-4138 Statement in Support of Claim. A review of the STRs shows an April 1968 enlistment report of medical examination that is absent for findings pertaining to the Veteran’s low back. An August 1969 record reflects that the Veteran complained of low back pain. A physical examination conducted at that time revealed tenderness along the Veteran’s paravertebral muscles and back spasms. The assessment was lumbar strain. He was treated with medication, heat, and light duty for three days. The Veteran’s July 1971 exit examination was normal, and he denied recurrent back pain on the corresponding report of medical history. See September 2003 STR – Medical. A review of the post-service records shows the Veteran was in the Army National Guard from approximately March 1974 to late 1974 or early 1975. The Veteran first filed claims of entitlement to service connection for a back injury and a left foot infection in December 1979. On his initial application, the Veteran reported that he had been receiving treatment for his claimed foot disability at the New Orleans VA Medical Center (VAMC) since July 1979 but did not report medical care for his back since his initial in-service treatment. See December 1979 VA Form 21-526 Veterans Application for Compensation or Pension. In July 1980, the Veteran reported that he received treatment at Fort Chaffee, Arkansas in 1975. However, he did not indicate whether that treatment was for his foot or back. See July 1980 VA Form 21-4138 Statement in Support of Claim. VA requested and obtained VA treatment records dated from 1979 to 1980. There were no complaints related to his back in these records, however, medical certificate and history forms dated in December 1979 and January 1980 show that the Veteran reported that he was service connected for a back injury. See October 2015 STR – Medical – Photocopy. VA records dated in 2002 show that the Veteran was diagnosed with lumbago and lumbar radiculopathy. The records also show that the Veteran had an MRI of his lumbar spine in April 2002 for pain and numbness in his lower left extremity. The impression was subligamentous extrusion of degenerative L5-S1 intervertebral discs, L3-4 annular rent, lumbar spondylosis, osteochondrosis, and a focus of abnormal signal intensity within the left L4 pedicle. See August 2016 CAPRI. The Veteran was afforded two VA examinations in October 2002. During the first VA examination, the Veteran reported that he worked as a laborer and as a caddy on a golf course following his discharge from service. In addition, the examiner noted that the Veteran had a spinal condition but did not provide a diagnosis or an opinion. See October 2002 VA examination. Four days later, the Veteran was afforded another VA examination. The examiner noted that the Veteran previously underwent cervical and lumbar laminectomies and found that he had severe cervical and lumbar pain. The second examiner diagnosed the Veteran with low back pain but did not provide an opinion. See October 2002 VA Examination. In May 2005, the Veteran underwent a lumbar spine MRI for chronic low back pain due to degenerative disc disease of the lumbar spine with burning sensation in his left thigh and radicular symptoms. The impression was broadbase far lateral protrusion on the L4-L5 disc on the left that appeared to contact the left L4 nerve root and mild degenerative changes at L3-L4 and L5-S1. See August 2016 CAPRI. The Veteran was afforded a VA examination for back conditions in December 2015. The examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine. During the examination, the Veteran reported that he injured his back while working on large tires in motor pool. He stated that he was treated with heat but denied surgery. In addition, the Veteran reported that his back pain increased over time. Following the examination, the examiner opined that it was less likely than not that the Veteran’s lumbosacral strain and degenerative arthritis of the spine were incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s STRs show that his in-service back strain had been successfully resolved and that the Veteran had not reported any complaints related to back pain at separation. As such, the examiner opined that the Veteran’s low back disability was not related to his lumbar strain in service. See December 2015 C&P Examination. After a review of the evidence of record, the Board finds that entitlement to service connection for a low back disability is not warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the Board notes that the Veteran has current diagnoses of chronic low back pain, lumbosacral strain and degenerative arthritis of the spine. See December 2015 VA Examination; April 2016 Medical Treatment Record – Government Facility. Accordingly, as the Veteran had in-service back complaints, and there is evidence of a current low back disability, the only question that remains is whether the Veteran’s diagnosed low back disability is related to service. In this regard, the Board finds the December 2015 VA medical opinion to be the most probative evidence of record. To this end, the Board finds that the December 2015 examiner discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Importantly, there is no medical opinion to the contrary. The Board has considered the Veteran’s reports that he received treatment at Fort Chaffee, Arkansas in 1975, and began seeking treatment at VA in 1974. See July 1980 VA Form 21-4138 Statement in Support of Claim; June 2019 Hearing Transcript, page 7. As noted above, the Board remanded the Veteran’s claim in December 2019 to obtain outstanding VA treatment records, to include records from the New Orleans VA Medical Center (VAMC) dated from 1974 through July 1979 and then again from 1980 to 2002. In addition, the Board asked the RO to undertake any appropriate development to obtain outstanding treatment records from Fort Chaffee during the Veteran’s Army National Guard service in 1974/1975. See December 2019 Remand BVA or CAVC. In January 2020, the RO requested the New Orleans VAMC, and received notification that the requested records were unavailable as records began in 2002. The RO further determined that the records could not be located and that further attempts to obtain the records would be futile and notified the Veteran and his representative. See May 2020 Final Attempt Letter. Similarly, a September 2020 letter shows that the RO requested copies of the Veteran’s Army National Guard STRs, dated in 1974 and 1975, from Fort Chaffee. In this regard, the RO determined that the Veteran’s records could not be located. The RO further determined that additional attempts to obtain the records would be futile and notified the Veteran and his representative. See September 2020 Correspondence. Thus, the Board finds that there has been substantial compliance with the Board’s previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, neither the Veteran nor his representative have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board acknowledges the Veteran’s assertions that he has been experiencing progressive back pain since service and that he initially sought treatment for back pain approximately three years after he was discharged from active duty. However, the Board notes that the evidence of record shows that the Veteran initially sought treatment from VA in 2002. In this regard, the Board notes that the Veteran initially filed a claim for entitlement to service connection for a low back disability in December 1979. In his claim, the Veteran reported that he had been receiving treatment for a foot disability at the New Orleans VAMC since July 1979 but did not report any post-service treatment for his claimed low back disability. See December 1979 VA Form 21-526 Veterans Application for Compensation or Pension. The Board further notes that the RO disallowed the Veteran’s December 1979 claim for failure to furnish requested evidence. See March 1980 VA Form 21-8947 Compensation and Pension Award. Thereafter, the Veteran submitted another claim for entitlement to service connection for a low back disability in August 2002. At that time, the Veteran reported that he had been receiving treatment for his low back disability at the New Orleans VAMC since April 2002. See August 2002 VA Form 21-526 Veterans Application for Compensation or Pension. Based on the foregoing, the Board finds that the most probative evidence of record reflects that the Veteran initially received treatment for low back pain in 2002, or approximately 31 years after his separation from service. The Board also notes that the Veteran has generally asserted that his current low back disability is related to his low back injury during service. However, as a layperson without any demonstrated expertise concerning the etiology of his claimed low back disability, this general assertion may not be afforded more than probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, the Veteran testified that his low back disability continued to bother him on at least an intermittent basis from the time of his injury during service up until the present day. See June 2019 Hearing Transcript, page 3. However, as stated above, there is no record of any post-service medical treatment for, or evaluations of, the Veteran’s reported low back pain until 2002, approximately 31 years after his discharge from service. Moreover, the Board notes that the Veteran reported that he worked in multiple physical professions, to include as a laborer and as a caddy at a golf course, after he was discharged from active duty service during his first October 2002 VA examination, but subsequently reported that he had to work at indoor jobs after service due to back pain during the June 2019 Board hearing. See October 2002 VA examination; June 2019 Hearing Transcript, page 3. Given these inconsistencies in the Veteran’s reported post-service medical treatment and employment, the Board does not find the Veteran’s report of continuity of symptomatology since service credible. Thus, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the more probative evidence of record, to include the December 2015 VA medical opinion. The examiner has training, knowledge, and expertise on which he relied to form his opinion and provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. (Continued on the next page)   Accordingly, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a low back disability. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.