Citation Nr: 21014511 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-32 332 DATE: March 12, 2021 ORDER Service connection for back pain is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a disability manifested by back pain that began in service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for back pain have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to June 1963. He testified at a virtual Board hearing before the undersigned in February 2021. Service Connection for Back Pain The Veteran seeks service connection for a back condition stating that his scoliosis never bothered him until he was in service. He contends he injured his back in service falling off a forklift and lifting oil drums. He also states he was treated for back pain with injections in the 1980s; however, records of this treatment are not available. He currently has low back pain but does not receive treatment and has never been given a diagnosis. See February 2021 hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The question for the Board is whether the Veteran has a current back disability manifested by pain that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records (STRs) do not show any treatment for a back injury. In April 1962, the Veteran was treated for abrasions on his face, elbow and knee after falling from a truck. In a May 1963 separation report of medical history, the Veteran did not report any history of or current back pain. A May 1963 separation examination report contains a notation of scoliosis of the dorsal spine with convexity toward the left. Clinical evaluation of the spine was normal. Following service, VA treatment records do not show any treatment for a back disability (only skin problems on the back and complaints related to treatment for bladder cancer). The Veteran confirmed during the February 2021 Board hearing that he did not receive any treatment for his back through VA. He also testified that although he sought most of his medical care through private providers, he was not receiving any current treatment for his back as he just “put up” with the pain. The Veteran further testified that although he had worn a girdle in the past for back pain, he had not worn one at any time during or proximate to the appeal period. The Veteran underwent a VA back examination by a physician in June 2018. The examiner reviewed the Veteran’s claims file, including his STRs, and examined him. The examiner noted the Veteran’s contention that he had back problems which began in service when he fell off a forklift and was hospitalized for several days in 1963. Currently, the Veteran complained of back pain 50 percent of the time. He denied radiation of the pain into his legs, or incontinence. He denied using assistive devices. On examination, range of motion of the spine (measured with a goniometer) was normal, with no complaints of pain on motion, to include on repetitive use testing. Muscle strength testing of the lower extremities was full; no muscle atrophy was present. Sensory examination was normal. Straight leg raising testing was negative and no radicular pain was present. The examiner stated that there was no back pathology to render a diagnosis. In a June 2018 VA Medical Opinion DBQ, the same VA examiner opined that the Veteran’s claimed back disability was less likely than not incurred in or caused by his military service, to include any claimed injury therein. In this regard, the examiner stated: Review of the medical records noted scoliosis of the thoracic spine on [the Veteran’s] separation exam, but it was difficult to see this due to his large size on exam today. There were no other references to back pain except for back pain that was caused by (medication for a skin disability). He has full range of motion on this exam today. There is no evidence that his current back problem is related to whatever back problem he had in the military. After reviewing the record, the Board concludes the Veteran does not have a current back disability, and has not had any such disability during the pendency of the claim or recent to the filing of the claim. While the Veteran has, through his pursuit of a service connection claim, reported having back pain, there has been no evidence in the record of persistent or recurrent symptoms related to back, and no evidence showing that any back pain caused functional impairment or had an effect on his earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted above, the VA examination in 2018 showed a normal back. There is no medical evidence ot the contrary. Additionally, it is noted that at the VA examination, the Veteran did not report having any functional loss or functional impairment of the thoracolumbar spine. Lacking a current disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran’s contention that the 2018 VA examination was not adequate essentially because it was cursory in nature. See February 2021 hearing transcript. However, as noted above, the examination was conducted by a physician who reviewed the claims file, noted the Veteran’s contentions, examined the Veteran thoroughly, and provided an opinion supported by reasons and bases. The Board finds this examination to be adequate. In light of the foregoing, it is not shown at any time during the pendency of this appeal that the Veteran has had a back disability related to service. Accordingly, the Veteran’s claim of service connection is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fletcher, Kathleen 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.