Citation Nr: 21014452 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-51 924 DATE: March 12, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The Veteran does not have a low back disorder that was caused or aggravated by service and arthritis was not manifested during the first post-service year. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the National Guard and Reserve with periods of active duty from October 1990 to April 1991 and March 2003 to May 2004 and active duty for training (ACDUTRA) in March 2010 and periods of inactive duty for training (INACDUTRA). This appeal to the Board of Veterans’ Appeals (Board) is from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in October 2018 and September 2020. Entitlement to service connection for a low back disorder. VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017). Although these diseases need not be diagnosed within the presumption period, they must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the diseases to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that his low back disorder is related to service. In September 2016, he stated that he began to have frequent back pain during his last deployment and that the pain continued after active duty. See September 2016 Form 9. The Veteran’s December 1981 service enlistment examination shows his spine was normal and the medical history report shows there was no history of a back problem. Subsequent examinations in June 1984 and April 1988 are also negative. The Veteran’s first period of active duty was from October 1990 to April 1991 and the February 1991 separation medical history report shows he gave a negative response to ever having had recurrent back pain. An April 1991 demobilization examination and May 1991 examination show his spine was normal. See April 1955 STR – Medical. A June 1994 Persian Gulf Registry examination shows the Veteran had multiple complaints that included myalgias, but the Board notes that there was no mention or findings of a low back problem. He also denied having adult injuries or illnesses. See May 1997 Medical Treatment Record – Government Facility. A periodic service examination in March 1996 was normal for the spine and the medical history report showed he had no recurrent back pain. In November 2000, the Veteran was seen for an over 40 examination and while he checked the box for having past or current recurrent back pain or any back injury, the examination itself showed his spine was normal. An August 2001 examination and medical history show that his spine was found to be normal and he denied having past or current recurrent back pain or any back problems. See April 1955 STR – Medical. The Veteran entered his second period of active duty in March 2003 and on a medical history report that month he denied having a history of recurrent back pain or arthritis. See April 1955 STR - Medical. A September 2004 VA treatment record shows the Veteran reported having joint pain associated with an anthrax vaccine. An examination of the musculoskeletal system was normal. See January 2009 Medical Treatment Record – Government Facility. A December 2004 post-deployment assessment shows that the Veteran reported he had back pain during his deployment; he also denied having any current back pain. See April 1955 STR – Medical. In February 2005, a review of system was negative for any musculoskeletal complaints. See January 2009 Medical Treatment Record – Government Facility. May and June 2006, September 2008, and April 2012 VA treatment record notes complaints of low back pain. He was supposed to have an MRI of his lumbar spine in June 2006 due to his complaints of lower back pain to rule out disc herniation, but it was canceled because the Veteran was unable to cooperate. See February 2007, November 2008, and January 2009 Medical Treatment Record – Government Facility and September 2012 CAPRI records. An April 2012 medical assessment in his service treatment records indicate there was no change since his last assessment/physical. He indicated that there was no injury or illness during active duty, that he did not seek treatment for, and no condition limited his ability to work in his military occupational specialty (MOS). See April 1955 STR – Medical. A February 2014 service treatment record shows that the Veteran reported he was unable to do physical activities associated with APFT due, in part, to chronic back pain. No documentation was found in his records regarding his chronic low back pain. The Veteran stated he had x-rays and was followed by a VA provider. See March 2018 Medical Treatment Records – Furnished by SSA. The Veteran had an MRI of his lumbar spine in October 2014 that revealed significant disc herniation at L2-L3, L3-L4, L4-L5 and L5-S1. A November 2017 letter by a physician states the Veteran has lumbar discogenic disease with radiculopathy and that these were service-related injuries. See January 2018 VA Examination. Opinions were obtained to determine if the Veteran’s low back disorder was related to service. In December 2017, a private examination was received that contained diagnoses of degeneration disc disease, intervertebral disc syndrome, and low back strain. The Veteran reported that his low back pain started in 1990 to 1991 but worsened from 2003 to 2004 due to his military duties as a diesel mechanic and welder and included lifting laundry bags and power generators. Based on the examination and review of VA treatment records, the clinician opined that the Veteran’s thoracic and lumbar disorders are 100 percent the result of his military service as a diesel mechanic for many years. The Veteran reported taking sick leave due to episodes of low back pain, that his pain limited his duties as a diesel mechanic, and that he served in the military for 37 years. The clinician opined that the low back disorders impacted the Veteran’s sitting/standing tolerance, ambulation, kneeling, squatting, going up and down stairs, and work related activities as a diesel mechanic. See January 2018 VA Examination. On March 2020 VA examination, the physician opined that the Veteran’s low back disorder was less likely than not related to service. He noted that there was no evidence of signs and symptoms, or medical evaluations concerning the low back during the Veteran’s periods of active duty. The service treatment records have documentation of back complaints in a November 2000 medical history report and the Veteran brought to the examination a January 2008 post-deployment questionnaire, four years after his last period of active duty, but both records were dated when he was not on active duty; there was no type of evidence concerning the low back during or one year after his active duty periods. See March 2020 C&P Exam. Since the opinion was incomplete, the Board sought an additional opinion. On November 2020 VA examination, the Veteran reported having low back pain since 2003. Based on the examination and review of the record, the physician opined that the Veteran’s low back disorder was less likely than not related to service. He noted that the only time the Veteran complained of recurrent back pain or any back injury was in November 2000 on a medical history report. The Veteran’s lumbar disc herniation were diagnosed in October 2014, which was 10 years after he separated from active duty. There was no objective evidence that the disorder was aggravated by service because there was only one time when the Veteran complained of back pain and he did not refer to any other complaints, which could be evidence of aggravation. The service treatment records are silent regarding any diagnosis or symptoms of lumbar disc herniation during service and there is no evidence of any manifestation or diagnosis within one year after separation from active duty. The Board finds, based on the record, that the Veteran’s current low back disorder is not related to service. Service connection on a presumptive basis is not available because degenerative disc disease was not noted until many years after service and there is no credible evidence of continuity of symptomatology after service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (2013). Therefore, the record must satisfy the three elements needed to establish service connection. The evidence does not show that the Veteran had a low back disorder during his first period of active duty. As noted, there were no complaints of a low back problem on his February 1991 separation medical history report and April and May 1991 examinations of the spine were normal. The Veteran’s first complaints of back pain were in November 2000, which was prior to his second period of active duty. The Veteran’s complaints of back pain in November 2000 do not establish that the Veteran had a preexisting injury. If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111. When that is the case, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). His November 2000 complaints do not prevent the presumption of soundness from attaching to the Veteran’s second period of active duty since there was no objective evidence of a back problem on the November 2000 and August 2001 examinations and his August 2001 and March 2003 medical history reports show he denied having current or a history of recurrent back pain. In September 2016, the Veteran reported he began to have frequent back pain during his second period of service and that it continued after service. See September 2016 Form 9. His report of in-service back pain is consistent with his December 2004 post-deployment health review and assessment; however, it is not sufficient to show his current low back disorder is related to service and his assertion of continuing back pain is not consistent with the record. The Board may not automatically make a negative inference when there is an absence of evidence in contemporaneous treatment records. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board also may not ignore evidence that may be inconsistent with later reports of ongoing symptoms. The claims file contains a few records that are relevant to his assertion of ongoing pain prior to the first documented complaint that was noted in May 2006. As noted, a September 2004 review of his body system shows that regarding his musculoskeletal system, the Veteran reported having joint pain or swelling of all joints after having an anthrax vaccine. Even though the lumbar spine was not specifically mentioned, the reference to all joints makes the lumbar spine inclusive and shows his symptoms were only related to a vaccine. The Board finds it is appropriate in this instance to make a negative inference since the record was specific as to noting the cause of the Veteran’s joint pain. Since joint pain, which would include the lumbar, was identified as being associated with a vaccine, then back pain for any other reason is unlikely. The December 2004 post-deployment assessment was more specific since the Veteran filled in the box that indicated he did not currently have back pain. This was followed by a February 2005 review of body system that again relates to the musculoskeletal system and shows he did not check the boxes for joint pain or swelling, arthritis, or myalgias. Instead, he checked the negative box, which suggests he had no musculoskeletal symptoms, to include lumbar joint pain. Thus, the one record in which he specifically denies back pain in conjunction with the other records suggest the Veteran did not having ongoing low back pain since service. As such, the Board finds his statement regarding continuing symptoms while competent is not credible or probative. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The favorable December 2017 private opinion is not very probative because it was not adequately supported by a rationale; instead, the clinician discussed how the current back disorder impacted the Veteran’s level of functioning. The physician stated that the Veteran used sick leave due to episodes of back pain, but this fact does not explain how the back disorder is related to service. He stated and that the Veteran’s back disorder limited his duties as a diesel mechanic but there is nothing in the service treatment records that shows he was given a physical profile for his back or that his back interfered with his duties during active duty. Furthermore, this statement is directly contradicted by an April 2012 Reserve record that shows the Veteran indicated there was no condition that limited his ability to work in his military occupational specialty. The only documented evidence that he reported problems associated with his Reserve service was not until 2014 when the Veteran stated he could not participate in training due to chronic back problems, but even then the clinician found no documentation to support his assertion. When an opinion, as here, is based on an inaccurate factual predicate, is not fully articulated, and lacks sound reasoning, it has no real probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The November 2017 letter from a physician stating the Veteran’s low back disorder was related to service is not supported by a rationale and contains no factual predicate, so it essentially has no probative value. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Miller v. West, 11 Vet. App. 345, 348 (1998). (Continued on the next page)   The VA examiner’s unfavorable opinion and rationale, which essentially stated there were no findings, other than Veteran’s reports of pain, during his deployment to suggest the onset of lumbar disc disease during service is more probative and consistent with the evidence and demonstrates sound reasoning. For the reasons stated, the Board finds that a preponderance of the evidence is against the claim. Accordingly, service connection is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.