Citation Nr: 21014984 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-41 037 DATE: March 16, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s low back disability is related to service or manifested within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Entitlement to service connection for a low back disability was denied by the Board in an August 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a May 2019 order granting a joint motion for remand (JMR). The Board then remanded the appeal in November 2019 with instruction to assist the Veteran in obtaining private treatment records and providing a VA examination. VA requested identification of any private treatment records in a November 2019 letter, and he responded with a December 2019 statement indicating that all treatment was with VA. He underwent a VA examination in January 2020. In October 2020, the Board again remanded with instruction to obtain current VA treatment records and an addendum opinion to the VA examination. The appropriate records were obtained, and an addendum opinion was provided in November 2020. The Board is therefore satisfied that that the instructions in its remands of November 2019 and October 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran has, on multiple occasions, notified VA of relevant medical treatment by a number of healthcare providers, some of which seem to be private providers. However, when asked to complete and return VA Form 21-4142 and VA Form 21-4142a if there are any private medical records that he would like the VA to obtain, he did not do so. See 38 C.F.R. § 3.159(c)(1)(i)-(ii). Neither the Veteran nor her representative has raised concerns with the duty to assist in that regard. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, the Board finds that remand is not necessary in order to cure any duty to assist-related failures by the AOJ as specifically related to obtaining private treatment records. Entitlement to service connection for a low back disability The Veteran claims entitlement to service connection for a low back disability. For the following reasons, the Board finds that he is not entitled to service connection for a low back disability. The Veteran contends that he injured his low back prior to his active military service and that he had a back condition as a result of that pre-service injury that was aggravated during his active service. According to a January 1970 Report of Medical Examination in the Veteran’s service treatment records (STRs), the physician that performed the Veteran’s entrance examination found that his spine was clinically normal without defects, but the examining physician noted that the Veteran presented a letter pertaining to past trouble with his neck and back. The report was stamped with a notation stating, in relevant part, “Registrant is determined acceptable. However, he claims ailments not verified by the Medical Officer and has been advised to present documentary evidence at his own expense to substantiate claims to his selective service local board prior to his induction.” A May 1970 addition to the report stated that the Veteran had a history of a 1969 back injury, without symptoms or sequelae. The examining physician noted that the Veteran’s cervical spine and lumbar spine were negative according to a May 1970 letter; the contents of the letter are not in the STRs. In the report, the Veteran described his health as fair, but noted “back trouble.” He checked “no” when asked if he had a history of back trouble of any kind; however, the Veteran noted a back and neck injury in response to the question of whether he had consulted or been treated by medical practitioners in the prior 5 years. The Veteran was afforded a VA examination in January 2020, and in the report of that examination, the examiner indicated that it could not be determined whether the Veteran’s back disability clearly and unmistakably preexisted his service. In so doing, the examiner articulated why clear and unmistakable evidence of a pre-existing low back condition will never be obtained in this matter, as medical records and radiologic findings from the period prior to the Veteran’s entrance into active duty service are not available for review, and the statements in the January 1970 Report of Examination or Report of Medical History do not contain enough clinical information to allow a VA examiner to assess the scope and manifestations of any pre-service injuries. Upon review and consideration of that opinion, the Board has found that the evidence presented regarding a pre-service injury to the Veteran’s lower back is not clear and unmistakable, as there is no unconditional evidence but rather an equivocal medical opinion. Cotant v. Principi, 17 Vet. App. 116, 131 (2003). As such, the presumption of soundness has not been rebutted, the Veteran is presumed to be sound at service entrance based on his January 1970 Report of Medical Examination, and the relevant analysis in this matter focuses on whether the Veteran’s current low back disability is related to any event, disease, or injury present in active service. The Veteran has alleged that he has experienced low back pain since his active duty service and that he experienced continuous low back symptoms throughout his active duty service. To bolster this assertion, he points to a July 1970 note in his STRs noting “headache and backache” and treatment with a spinal tap. He also refers to an April 1972 injury to his back. See February 2014 statement. He further alleges that his STRs do not fully document his in-service history of low back complaints because he avoided going to the medical clinic out of fear of repercussions or being thought of as trying to avoid work assignments. See August 2020 statement. The Veteran is competent to report past recollections of low back pain during service, as such information is within the realm of his personal knowledge and experience. Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, the Board does not find the Veteran’s allegations of chronic in-service low back problems to be credible based on the current evidentiary record. The Board has fully reviewed the Veteran’s STRs and finds no evidence of chronic low back complaints or treatment during his active duty service. The October 1972 separation examination showed a clinically normal spine. To the extent his STRs are silent regarding complaints of low back problems, an absence of documented complaints in a medical record cannot always constitute substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). It must be considered whether there is evidence as to the severity of symptoms that would have made it “reasonable to expect” that at that time, he would have reported symptoms or sought treatment during service. See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015). If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-1318, n. 13 (Fed. Cir. 2013); see also Fed. R. Evid. 803(6), (7). Here, the Veteran has alleged that he experienced chronic low back problems during service, but he did not frequently seek treatment or report such issues because it was frowned upon to report minor complaints, and he did not wish to appear as if he was trying to avoid work assignments. Despite this allegation, his STRs indicate that he was seen by the medical clinic on several occasions for everyday illnesses such as rashes, colds, sore throat, headaches, and congestion. Given the Veteran’s propensity to be seen for routine minor medical complaints, it is reasonable to conclude that if he experienced low back pain as severe or as chronically as suggested, it would have been reported to medical personnel, if present, and would have been documented in his STRs. The Board finds the absence of this expected evidence to be probative, and his assertions regarding the fear associated with seeking medical treatment during service do not align with the STRs documenting consistent treatment for minor medical complaints. Additionally, the Board does not find the Veteran to be a reliable medical historian. He has submitted several documents showing post-service work-related injuries to his low back, yet in these medical records, he was never documented as reporting prior low back complaints originating during his military service. It was not until his VA medical treatment close in time to or contemporaneous with his claim for VA service-connected benefits that the Veteran began attributing the start of his low back pain to military service. This detracts from the credibility of the Veteran’s lay assertions regarding in-service low back complaints. As to his allegations regarding a July 1970 note in his STRs documenting “headache and backache” with a spinal tap procedure, the evidence demonstrates that the Veteran was seen on one occasion in July 1970 after he awoke with complaints of headache and backache. No injury was reported, and physical examination resulted in an impression of rule out meningitis or a possible reaction to smallpox vaccination. It appears that a spinal tap was one of the tests scheduled to rule out the meningitis or to determine the cause of his complaints. This record specifically states that the Veteran did not have any rigid back pain on flexion. There were no follow-up visits or further complaints. The October 1972 discharge examination found that the spine was normal. As such, this July 1970 in-service treatment record does not demonstrate orthopedic low back complaints, as alleged by the Veteran. Instead, it demonstrates an acute and transitory complaint believed by the evaluating medical providers to be an immunological response to an infection or vaccine. Similarly, the Veteran has cited to an April 1972 note in his STRs as evidence of an in-service low back injury or complaint. This treatment note reflects that he suffered a painful injury to the scrotum while playing football. The examining clinician identified a superficial tear to the prepuce and a small ulceration on the glans of the penile head, but deferred a diagnosis pending dermatology referral. A subsequent dermatological visit resulted in a diagnosis of balanitis. There is no indication from these treatment records that he experienced any injury to the low back or related symptoms in April 1972 due to an in-service injury. Since the Veteran did undergo treatment for an injury to the scrotum in April 1972 following a game of football, it is reasonable to assume that if he had a similar injury to the low back from the same event, he would have reported it to the treating medical providers. The absence of such expected evidence is probative in this appeal. While the Board has concluded that the Veteran’s reports of in-service low back complaints or injury are not credible based on the current record, he has also alleged that his current low back disability may be the result of his in-service duties, to include heavy lifting, repeated stretching, sudden turning, crawling, kneeling, reaching, pulling, and strenuous exercise. See August 2016 statement. He indicated his in-service duties involved laundry services, supply stocking, and deck duties, where he was required to paint and scrap the side of the ship. See January 2010 statement; see also November 2018 VA treatment record; 1970 and 1971 performance evaluations. His military personnel records confirm that he served aboard the U.S.S. Midway, and his DD form 214 confirms that his military occupational specialty was in the laundering department. The Board finds the Veteran’s reports of strenuous physical activity during active service to be consistent with the circumstances and conditions of such service, and thus credible. The Veteran has submitted private medical treatment records, VA treatment records, and records related to his previous workers’ compensation claims. The private treatment and workers’ compensation claim records show that he incurred several post-service, on-the-job back injuries, including in or about: July 1986, after doing heavy lifting while working for the Oakland Housing Authority; September 1988, while working for an unknown employer; July 1995, after bending down to pick up mail while working for the U.S. Postal Service; and June 2001, again while working for the U.S. Postal Service. His private treatment records also show that he had back and neck pain after a motor vehicle accident in October 1992. The Veteran’s VA treatment records contain November 2010 notes indicating that he complained of chronic low back pain and showing abnormal lumbar lordosis and minimal degenerative changes on x-ray. An August 2011 VA treatment note reflects that his problem list included back pain at that time. According to a December 2010 VA physical therapy evaluation note, he reported chronic low back pain that began while he was in the military. His VA treatment records show that he has complained of and been evaluated and treated for back pain on many occasions since then. The Veteran has submitted a private medical opinion dated in September 2019 from Dr. SH linking the Veteran’s current low back disability to his active duty service. In this opinion, Dr. SH stated that it was “definitely reasonable to assume there was progression of his spondylolisthesis as a result of repetitive loading over time due to at risk activities in the Navy; however, one cannot say this is his definitive cause of his current symptoms. More likely it is a combination... of the natural degenerative cascade combined with at risk activities which do include activities which [he] participated in while in the Navy.” The Board has reviewed this medical nexus opinion but finds it insufficient to resolve the Veteran’s appeal. Dr. SH did not review the Veteran’s STRs, which are silent for in-service low back complaints, nor did he discuss the myriad of post-service low back injuries that may have contributed to the Veteran’s current low back disability. As such, the Board does not find Dr. SH’s medical opinion to be based on an accurate assessment of the Veteran’s complete medical history, and accordingly, it holds very little evidentiary weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was afforded a VA back conditions examination in January 2020. The examiner stated that he reported injuring his back prior to his active service, complaining of back pain that occasionally shot down his left leg during active service, and continuation and worsening of the pain since service. The examiner indicated that the Veteran had diagnoses of degenerative arthritis of the spine, spinal stenosis, and spondylolisthesis. After review of the claims file, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was essentially that the examiner could not find any records documenting a back injury during service, so the examiner felt that it was less likely than not that the Veteran incurred a back condition during or within one year of the Veteran’s active service. The examiner then cited the Veteran’s normal examinations upon entrance to and separation from active service, the Board’s August 2018 decision, and the September 2019 private treatment note as support for this opinion. The Board found that the examiner’s negative nexus opinion was based solely on the lack of records documenting injury to the Veteran’s low back during his active service and remanded this appeal for an addendum opinion in October 2020. Pursuant to that remand, an addendum opinion was obtained in November 2020. After review of the Veteran’s claims file, the examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner stated that post-service treatment records prior to the VA examination showed no indication of in-service activity causing his current back condition. The examiner further noted that the Veteran worked at the post office for 34 years, which also likely involved repetitive activities. Finally, the examiner stated that at the time of diagnosis, the Veteran’s back condition was not uncommon for his age. The examiner concluded that given the lack of symptoms during service and the gradual onset and nature of his current back condition, it is more likely that his current back condition is due to everyday wear and tear and natural degenerative process consistent with age that occurs over time. The Board finds that the Veteran is presumed sound upon entrance as far as back disabilities are concerned, as discussed above, and that the preponderance of the evidence weighs against finding that the Veteran’s current back disability is related to service or manifested within one year of separation. His STRs show regular treatment but do not evidence the presence of any chronic back conditions during his active service, and he disclaimed any back conditions upon discharge. There is no medical record anywhere in the claims file of any back disabilities being present within the year following the Veteran’s discharge from active service. His private treatment records and workers’ compensation records show that he has sustained several back injuries well after his active duty service, in the 1990s and early 2000s, and none of the medical records in the claims file indicate that the Veteran stated, while being treated for those injuries, that his back problems began during or as a result of his active service. The September 2019 private treatment note is of little probative value, but nevertheless, the Board notes that even that it does not indicate that the Veteran’s back condition more likely than not began during his active service, prior to one year after his discharge, or as a result of his duties while on active duty. The January 2020 VA examination report and the November 2020 addendum, collectively, adequately explain that the Veteran’s back condition was less likely than not related to in-service activity. As such, the evidence weighs against a finding that the Veteran’s disability began as a result of his activities while on active duty or during the one-year period after his active service. Thus, the preponderance of the evidence weighs against this claim, and as such, the claim is denied. In denying this claim, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.