Citation Nr: 21013843 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-01 752 DATE: March 10, 2021 ORDER Service connection for a back condition is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current back disability had onset during service, or is otherwise related to an in-service injury or disease, or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1970 to March 1974, with additional service in the Reserves and National Guard. In April 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is associated with the claims file. This matter was then before the Board in November 2019 and in August 2020. All requested development having been completed, the Board may proceed with adjudication. The Veteran contends that he injured his back after falling while playing basketball in service in 1970. See Hearing Transcript at p. 8. Specifically, he said that he fell on the bottom part of his leg and must have injured his back at that time, but it was never checked. He also told the January 2020 VA examiner that he injured his back when he was lifting cargo in service and developed a hernia in 1991. Alternatively, he has contended that his back injury is secondary to his service-connected ventral hernia or his service-connected residuals of fracture, right fifth metatarsal. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or to a service-connected disability. The Board concludes that, while the Veteran has diagnoses of lumbosacral strain and degenerative arthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, or to a service-connected disability. In January 2020, the Veteran underwent a VA back examination. The examiner diagnosed lumbosacral strain. The Veteran told the examiner that the condition had onset in 1991 when the Veteran developed a hernia while lifting equipment and injuring the lower back. The examiner opined that the Veteran’s lumbar strain less likely than not had onset in or was otherwise related to service, and also opined that the back condition was less likely than not due to the Veteran’s ventral hernia because the hernia was repaired and did not affect the lumbar region. The examiner also opined against a relationship between the Veteran’s spine disability and the Veteran’s residuals of fractured right fifth metatarsal, as there were no sufficient changes to gait or stability so as to affect the lumbar spine. The examiner also noted that there was no post-service evidence of treatment for the lumbar spine. The Board remanded the Veteran’s appeal to obtain an addendum opinion, to more fully address possible aggravation by service-connected disabilities. The Veteran underwent another VA examination in October 2020 and was shown to have lumbosacral strain and degenerative arthritis. The Veteran stated that intense back pain onset in the 1990s, but that he was not treated for the condition. In corresponding medical opinions, a VA examiner opined that the Veteran’s back condition was less likely as not due to service, and less likely as not proximately due to or aggravated by his service-connected ventral hernia or foot conditions. Regarding a relationship to the foot, the examiner was unable to opine in favor of any relationship, as although the Veteran had a right foot fifth metatarsal fracture, no altered gait or foot complications had ever been reported or observed. The examiner also opined that the Veteran’s back conditions were less likely as not related to his hernia condition. By way of rationale, the examiner explained that a hernia caused weakness in the abdominal wall, and that the most common complications of abdominal wall hernias were bowel obstruction, incarceration, and strangulation. Presenting symptoms could include abdominal pain, vomiting, and distention. The examiner noted that lumbar strain and arthritis did not have any connection to a hernia. The Board finds that the January 2020 and October 2020 VA opinions, taken together, are probative as to both direct and secondary service connection. Indeed, the examiners considered the Veteran’s service treatment and post-service medical records as well as the Veteran’s contentions as to the onset and progression of his back conditions, ultimately concluding that the medical evidence did not support that his back conditions had onset in service, or were caused or aggravated by the Veteran’s service-connected hernia and/or foot conditions. In this connection, the Board adds that although the October 2020 VA examiner did not provide separate rationales regarding causation versus aggravation, the Board finds that both prongs of secondary service connection were contemplated by the examiner’s conclusions that neither the Veteran’s hernia nor his right foot conditions had any bearing of any kind on his back problems. Indeed, the examiner’s rationale reflects that the hernia did not play any role in causing or aggravating the Veteran’s back condition, insofar the Veteran’s back disabilities are not considered to be medical complications of his type of hernia. Moreover, the examiner’s rationale reflects that the right foot disability did not play a role in causing or aggravating the Veteran’s back condition insofar as no altered gait had ever been observed or treated. The opinions, as a whole, contain clear conclusions, and apply medical principles and knowledge to the specific facts of the Veteran’s particular circumstances and individual medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board adds that there is no medical opinion evidence contrary to the findings of the VA examiners. The Board has considered the Veteran’s assertions about both injuring his back during periods of active duty service in 1970 or 1991, and having back pain since those times. Additionally, insofar as the Veteran has been diagnosed with a chronic disability (i.e., arthritis), the Board has considered whether service connection may be awarded based on a showing of a continuity of symptoms since service. While the Veteran is competent to report that he injured his back during a period of active duty, and that he has experienced back pain since service, the Board finds that his reports of injury and continuity are largely not credible due to internal inconsistency, and inconsistency with other evidence in the record. In this regard, insofar as the Veteran is asserting he has experienced back problems continuously since an injury in 1970, the Board does not find such assertions credible given his denial of any back problems at times subsequent to the claimed injury during service, to include on the Veteran’s February 1974 separation physical Report of Medical History, where he indicated that he did not experience recurrent back pain. In addition, the Veteran denied experiencing any back pain during his Reserve and Guard service, as shown by May 1978, May 1979, May 1980, May 1981, May 1984, and January 1987 Reports of Medical History. Similarly, to the extent the Veteran is asserting that he injured his back in 1991 and experienced back pain since then, the Board does not find that assertion credible given his denial of experiencing any back pain in March 1992 and February 1994 Reports of Medical History. Notably, the Veteran received a “normal” clinical assessment of the spine at each Report of Medical Examination during his military career. The Veteran explained at his hearing before the Board that he did not wish to complain about health problems during service because he did not want to be removed from his duties. However, contrary to this assertion, the Veteran’s actual service treatment records and private treatment records dating back to the start of his active duty period in 1970 show that the Veteran complained of, and sought medical treatment for several different medical problems, without any mention of back pain, but for one occasion in April 1992. Indeed, on that April 23, 1992 treatment report, the Veteran did not complain of a longstanding back pain problem or prior back injury (either in 1970 or 1991). Rather, he noted a 1-day history of low back pain, and denied prior injury. He was noted to have a possible lumbar strain, and was provided a note to be excused from work for the day. It appears from an April 27, 1992 follow-up visit, the Veteran had no more complaints. Additionally, as recently as March 22, 2010, the Veteran denied prior spine injuries at a VA Primary Care Outpatient visit. The Board also observes that the Veteran filed claims for service connection with VA in June 2007 and November 2008 for other disabilities, but did not mention back pain or back problems in either of those claims. The Board finds it reasonable that had the Veteran been experiencing back pain since service, he would have articulated as much to VA or to his physicians at some point prior to filing his current claim for benefits in 2011. Instead the contemporaneous evidence dating back to 1970 includes not only several notations where the Veteran denied a history of back pain on his regular service assessments, but also several normal clinical assessments of the spine, and notations indicating that the Veteran himself denied prior injury to the back. Based on this evidence, the Board finds the Veteran’s more recent reports of having injured his back during a period of service (either in 1970 or 1991), and having back pain since that time, to be not credible. In sum, the preponderance of the evidence weighs against findings that the Veteran sustained an injury to his back during a period of active service manifesting in symptoms that have continued to present, or that there is otherwise a link between the Veteran’s current disabilities and service, or to his service-connected ventral hernia or residuals of fracture, right fifth metatarsal. The Veteran has not submitted any medical nexus evidence contrary to the findings of the examiners discussed above. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly 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.