Citation Nr: 21014808 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-35 674 DATE: March 15, 2021 ORDER Entitlement to service connection for lumbar spine disorder is denied. FINDING OF FACT The Veteran’s lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service and arthritis did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria for establishing service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1975 to October 1979, with periods of state National Guard service and Reserve service thereafter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and July 2011 rating decisions issued by a Department of Veterans Affairs Regional Office (RO). The August 2010 rating decision denied the Veteran’s request to reopen his claim for service connection for a low back disability. The Veteran then submitted new and material evidence and successfully reopened his claim. The July 2011 rating decision then denied the Veteran’s claim for service connection and the Veteran subsequently appealed his case to the Board. In May 2015, the Veteran testified during a videoconference hearing at the Board. A transcript of the hearing is on record. The Board notes that the Veterans Law Judge who conducted the May 2015 hearing has since retired from the Board. The Veteran was informed that that the Veterans Law Judge who conducted his hearing had retired and was offered the opportunity to have another hearing in an October 2018 letter. The Veteran declined the opportunity for another hearing in an October 2018 submission. In a May 2017 decision, the Board denied the instant claim on its merits. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (CAVC). By a February 2018 Joint Motion for Remand (JMR) upon agreement by the parties, the case was remanded back to the Board for further proceedings. In January 2019, the Board remanded the claim for development pursuant to the February 2018 JMR. In October 2020, the Board again remanded the instant matter to obtain updated VA treatment records and to obtain an etiology opinion. Updated VA treatment records have been associated with the record and a VA etiology opinion was obtained in October 2020. The Board therefore determines that there has been substantial compliance with its previous remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter has now returned before the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, a presumption of service connection may be applied for certain chronic diseases, including arthritis, provided that the condition manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lumbar spine disorder. The Veteran contends that his lumbar spine disorder related to his service. Specifically, he contends that his condition resulted from working the night shift at a hangar moving heavy equipment by himself while on active duty service. Service treatment records document the Veteran being treated on three occasions in service low back pain and being diagnosed then with low back muscle strain in 1978. The Veteran subsequently underwent two separation exams, in 1980 and 1982. The exams revealed normal spine findings and no indications of pain. At both examinations, the Veteran denied pain symptoms in his lower back. As part of his National Guard and Reserve service, the Veteran underwent subsequent medical examinations. A January 1982 periodic medical examination reflected a normal spine and musculoskeletal system. At a January 1986 medical examination, he reported back pain. He was examined and had full range of motion and full strength. The Veteran was afforded a VA examination in January 1986 in connection with his first claim for entitlement to service connection for a lumbar spine disorder. At the examination, the Veteran reported that he injured his back in service in 1979 while transporting heavy equipment and woke up the next morning with back pain. He had no complaints until 1983, when he went to work for a sanitation department and experienced back pain as a result of lifting heavy equipment. Magnetic Resonance Imaging (MRI) scan imaging obtained as part of the examination revealed a normal lumbar spine. In a January 1990 report of medical history, the Veteran checked "no" to the question of "recurrent back pain." A medical examination in January 1995 during a period of the Veteran's Reserve service reflected a normal spine/musculoskeletal system. The Veteran filed his current claim for service connection in September 2009. In connection with his claim, he submitted medical treatment records documenting treatment from Dr. P.V. for low back pain beginning in April 2008. Imaging at that time revealed mild multilevel spondylosis with no evidence of significant central spinal canal or neural foraminal stenosis. Dr. P.V. prescribed epidural steroid injections. Private treatment records from 2008 and 2009 document such injections. An April 2010 statement from Dr. P.V. indicates that she had treated the Veteran since May 2008 for persistent back and left leg pain that originated after a work-related injury in October 1979. The physician noted that the Veteran had been medically retired from the military. The Veteran's 2008 MRI scan revealed multilevel spondylosis and degenerative disc disease at L5-S1. At a May 2011 VA examination, the VA examiner reviewed and discussed the evidence of record with the Veteran. The examiner reported that X-rays of the Veteran's lumbar spine were within normal limits and that there was no diagnosis because there was no pathology to render a diagnosis. The Veteran reported having had a chronic low back condition since 1979, when he injured his back in service. No etiology opinion was provided. During his May 2015 Board hearing, the Veteran testified that he injured his back in February 1979 in service while lifting heavy material. He stated that his back pain continued after he entered the Air Force Reserve and had always been present. The Board first considers whether the Veteran’s claim warrants service connection presumptively, based on the provisions of 38 C.F.R. §§ 3.307, 3.309(a). However, the Veteran’s condition did not manifest as arthritis within one year of his separation from service. The Veteran’s separation exams revealed no findings of arthritis or any back issue at that time. As the Veteran’s arthritis was not diagnosed until 2008, and did not manifest during service or within one year of separation, the provisions of 38 C.F.R. §§ 3.307 are not for application in this matter. Turning to the question of whether there is an etiological relationship between the Veteran's lumbar spine disorder and service, the Board notes that the record contains several etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In November 2010, another of the Veteran's private physicians, Dr. F.K, stated that the Veteran was as likely as not to have suffered from a chronic low back condition related to an injury he experienced while on active duty in the United States Marines, based on current studies and a history provided by the Veteran. However, this opinion was provided without a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). This opinion is therefore afforded little, if any, probative weight. On VA examination in April 2016, the examiner rendered a diagnosis of degenerative arthritis of the spine. The Veteran provided the examiner with the medical history pertaining to his back. He reported the injury sustained in service 1979 when he loaded heavy equipment onto a flatbed trailer. After a week of bed rest and medication, he recovered and returned to duty. Around 1986, he reported injuring his back again during his employment with the United Parcel Service (UPS). He was not treated. In 2006, he started regular treatment, to include epidural injections. The examiner opined that the Veteran's low back disability was less likely than not related to service. Despite the episode low back pain in 1979, the examiner noted that, by the Veteran's own account, he recovered and went back to full duty. The next episode of back pain occurred in 1986, when he worked for UPS and lifted a weight. There was no evidence that the Veteran was treated for a low back condition immediately after he left service. Moreover, examinations that he underwent while in the Reserves in July 1980 and February 1982 reflected a normal low back. The examiner found that the April 2010 opinion from Dr. P.V. could not be supported by the facts as presented by the Veteran about the history of his injury. The Board notes here that this April 2016 examination was found to have several inadequacies in that the examiner incorrectly addressed the Veteran’s 1979 back injury as “an episode of low back pain” rather than addressing it as a work-related incident that led to three days of persistent back pain, the examiner did not fully address the Veteran’s 1986 reservist medical examination which documented the Veteran experiencing recurrent back pain and using a brace due to tremendous strain and prolonged lifting and the examiner did not consider lay witness statements when determining a lack of immediate post-discharge treatment. As this opinion appears to be based on an inaccurate factual premise, it is inadequate. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). This opinion is therefore afforded little, if any, probative weight. In a June 2016 opinion Dr. F.K. stated that upon receipt of a "section of records" obtained from the Veteran, as well as his treatment of the Veteran since 2008, it was more likely than not that the Veteran suffered from a chronic low back condition related to an injury he experienced while on active duty, based on current studies and a history provided by the Veteran. It was essentially the same opinion as had been provided by Dr. F.K. in 2010. However, this opinion was provided without a rationale.. Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. This opinion is therefore afforded little, if any, probative weight. An October 2019 VA examiner opined that the Veteran's claimed condition was less likely than not incurred in por caused by the claimed in-service injury, event, or illness. The examiner explained that during service, the condition was acute only, that progress notes during service reveal lower back strain and that a strain is general an acute condition. The examiner noted that there were additional visits made with diagnosis of lower back pain, but as an acute condition, the occurrence can return if triggered by certain activity/work that puts strain on the lower back muscles, that there were several reports of medical examination deny the presence/mention of recurrent back pain, except 1 and that MRI's and X-Rays performed on Veteran years after service display a diagnosis of Degenerative Disc Disease (alternatively known as Osteoarthritis). The examiner further reasoned that due to inconsistencies in chronicity of care for lower back pain during time of service and that a nexus has not been established. However, this examiner did not address multiple pieces of evidence when providing this opinion as was detailed in the Board’s January 2019 remand. Stegall v. West, supra. Therefore, the Board determined that an addendum opinion was required. An October 2020 VA examiner confirmed the Veteran’s diagnoses of degenerative arthritis of the spine and lumbar strain. The examiner also noted the following evidence: a 2008 MRI report showing lumbar spine spondylosis; X-ray findings from April 2016 showing multilevel degenerative discogenic disease of lumbar spine; and X-ray findings from October 2019 showing scoliosis with degenerative joint disease. The examiner also considered the witness lay statements provided in support of the Veteran’s claim. The examiner then opined that it is less likely than not the Veteran’s lower back condition is related to service and reasoned that the Veteran’s lumbar spine X-rays from 1986 revealed normal lower back findings and were silent for any degenerative disease. The examiner noted that although the Veteran was diagnosed with a low back strain in 1978, the condition had been transient and had resolved itself, by the Veteran’s own admission. The examiner opined also that he had considered the witness lay statements but stated that such statements were contradicted by the Veteran’s own admissions at the 1980 and 1982 examinations where he denied back pain and that 1980 and 1982 examinations both conducted X-rays which revealed findings of normal spine. The examiner also addressed the 1986 examination findings of the Veteran’s recurrent back pain and noted that the Veteran had reported suffering from episodic back pain in-service, first triggered in 1979 upon lifting equipment and then recurring a few times and then resolving prior to separation from service and noted that the Veteran reported that he attended college between 1980 and 1983 and did not suffer any back pain during that period. The examiner also noted that the Veteran had reported suffering from back pain again after starting a new job in 1983 which required heavy lifting. The examiner ultimately opined that the Veteran’s in-service back pain was a transient condition that had resolved, and that the Veteran’s subsequent examinations of 1980, 1982, and 1986 and revealed normal spine. The VA examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. Therefore, the medical opinion is of great probative value. There is no contrary opinion of record. The Board has considered the Veteran’s lay assertions and witness lay statements in support of his claim alleging that the Veteran’s condition stems from service. However, the Board finds the question regarding the potential relationship between the Veteran's condition and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current symptoms, the Board accords his statements regarding the etiology of such a disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disorder. As such, that doctrine is not applicable in the instant claim, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, Associate 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.