Citation Nr: 21014831 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-18 340A DATE: March 15, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence establishes the Veteran’s lumbar spine disability was not present until more than one year following his discharge from service and is not etiologically related to his active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1958 to September 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain adequate medical opinions regarding the Veteran’s claimed disabilities. The Veteran was provided with the relevant examinations. As such, the Board finds that the AOJ substantially complied with the directives in the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lumbar Spine In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks service connection for a lumbar spine disability which he contends is etiologically related to his active duty service, to specifically include his multiple in-service parachute jumps. The Veteran’s DD Form 214 does indeed document that he was awarded the parachutist badge. Further, the Board notes that the Veteran has current diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. See November 2019 VA Back examination. Therefore, the central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has currently diagnosed disabilities, competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran’s service treatment records (STRs) contain no complaints, treatment, or diagnoses of lower back conditions. Specifically, the Board notes the Veteran’s August 1958 pre-induction examination and July 1960 separation examination both document normal clinical evaluations of the spine and musculoskeletal system with no relevant health conditions reported by the Veteran. There are no treatment records for any back conditions while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran’s current disabilities to his active duty service. The Veteran’s back pain was first documented in an October 2002 post-service treatment record establishing care under the VA system. In a March 2003 treatment record, the Veteran reported his back pain began 4 to 5 years prior. It was noted that the Veteran did “heavy work,” but no trauma was reported. Additionally, a March 2003 lumbar spine x-ray showed multilevel disc disease, moderate to severe osteoarthritis of the vertebrae, and first-degree spondylolisthesis. In April 2005 the Veteran reported that his back hurt and that he walked “funny.” He presented with an obvious right lower leg discrepancy which caused a gait abnormality and back pain. The physician noted that the Veteran’s occupation was a mason who worked with concrete blocks. The Veteran was afforded a March 2011 VA examination regarding his back condition. During the examination the Veteran reported a 10-year history of back pain and noted that he worked as a block layer/concrete mason. The Veteran denied any related workers compensation claims, motor vehicle accidents, or back trauma. The examiner opined that it is not likely that the Veteran’s lumbar disc disease was due to his active duty. The rationale provided was that the Veteran was employed in the concrete industry and performed manual labor his entire adult life, and there are no treatment records for a lumbar spine condition prior to 2002, when the Veteran established healthcare with the VA. Later that same month, in a March 2011 VA treatment note, the Veteran, for the first time, reported that he had chronic back pain for the past 50 years. In a March 2018 decision, the Court of Appeals for Veteran’s Claims (CAVC) found that the March 2011 VA examination was inadequate as the examiner did not provide an adequate rationale for their opinion. CAVC vacated an earlier Board denial and remanded in order for the Board to obtain an adequate medical opinion regarding the etiology of the Veteran’s disabilities. The Board then remanded the Veteran’s claim for further development. In response to the Board’s November 2018 Remand, the RO provided the Veteran with a November 2019 VA Back Conditions examination. During the examination the Veteran reported that the onset date of his lower back conditions was 1962, though he could not remember any details of his back-condition’s onset. The examiner opined that the Veteran’s current disability was less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that there was no evidence of chronicity of care, no evidence of injury or treatment of the lumbar spine in service, and a nexus had not been established. In an October 2020 decision, the Board found the November 2019 VA examination inadequate, as the examiner did not address the Veteran’s lay statements in proffering their rationale. As such, the Board remanded the claim for an addendum opinion which addressed the relevant evidence in the record. In response to the Board remand, the RO obtained a November 2020 Acceptable Clinical Evidence (ACE) review/addendum to the prior opinion. The examiner opined that the Veteran’s lower back disability was less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that there is no evidence that the Veteran sustained a back injury or had a back condition while in active service. The examiner noted that the Veteran’s separation examination was negative for any back conditions and it is unlikely that one would have been missed. The first evidence of a back condition is in 2002 with a reported 10-year history of back pain. The examiner noted that the Veteran earned the parachutist badge and noted that the VA grants latitude to those with orthopedic injuries to those with parachute experience. However, the examiner continued, that any condition caused by multiple jumps and conceded hard landings would have manifest at the time of those activities/landings or would have been evident at separation. The examiner elaborated that the Veteran did not seek care for his back for 40 years, and even giving the Veteran’s 10-year history reported in 2002, that is a span of 30 years post-service. The examiner stated that the Veteran is diagnosed with degenerative spine disease and that this is considered a natural aging process with over 50 percent of men over the age of 50 developing the condition, increasing substantially each decade thereafter. The examiner continued that the Veteran was not diagnosed with degenerative spine disease until x-rays in 2011, making the Veteran’s back condition age appropriate. Therefore, the examiner opined, it is less likely than not (less than a 50 percent probability) that the Veteran’s degenerative spine disease with radiculopathy was due to or incurred in service, including multiple parachute jumps and hard landings. The examiner continued that any condition due to those activities would have been present at separation, and certainly sooner than 30+ years after service. The examiner explained that the Veteran himself reported symptoms arising in 1992 and the medical evidence does not support the Veteran’s later claims of onset and continuity since service. The Board notes that the Veteran is competent to report the nature of his observable symptoms and back injuries during service, as well as having ongoing symptoms during and since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, his reports for his claim, as to the timing of his symptoms are not credible because they are inconsistent with the more probative information in records for treatment and evaluation during and after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (factors that may be considered in determining credibility); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA may not discredit lay testimony simply because the veteran is an interested party and stands to gain monetary benefits, but personal interest may affect the credibility). The Veteran’s claims that his back pain started in service are contradicted by his multiple claims throughout his treatment records regarding the start of his lower back pain symptoms years after service. As noted above, the Veteran’s initial claim was that his back pain started sometime in the 1990s with the earliest date being sometime in 1992, approximately 30 years after the Veteran left active duty service. It is not until after his first VA examination in March 2011 did the Veteran claim that his condition began 50 years prior. As such, the Board weighs the above-mentioned VA examinations, specifically the findings of the November 2020 examiner, against the Veteran’s lay contentions that his lumbar spine disabilities are due to service. As such, the Board finds the VA examination, which opined against a link between the Veteran’s currently diagnosed disabilities and his service, to be of high probative value. Additionally, the Board again notes that the Veteran was not diagnosed with these conditions until years after he left active duty service. Thus, the probative evidence of record preponderates against the Veteran’s claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with lumbar spine disabilities while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active duty service. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.