Citation Nr: 21015437 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-32 370 DATE: March 17, 2021 ORDER Service connection for a low back condition is denied. REMAND A compensable rating for rhinitis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current low back condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to April 1991, from January 1996 to April 1996, and from March 2003 to August 2009. These issues were previously before the Board in August 2018, at which time they were remanded for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). Low back condition The Veteran asserts that his chronic low back pain began in service or is otherwise related to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA treatment records, as well as a November 2013 VA examination, indicate that the Veteran has been diagnosed with chronic low back pain since January 2012. See e.g. January 2012 Pontiac Clinic Progress Note. The Board notes that for the purposes of VA compensation, pain alone may constitute a disability, even in the absence of an underlying diagnosis, when it causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The November 2013 VA examination report notes the only functional impact due to back pain that the Veteran reported was the inability to play with his young daughter. However, he reported that he was able to do all activities of daily living and was able to run errands. As the record does not contain a medical opinion or additional information to assess whether the Veteran’s back pain causes functional impairment of earning capacity, the Board will assume for the purposes of this decision only, that his back pain constitutes a disability for VA compensation purposes. Even with the assumption that the Veteran’s low back pain constitutes a disability for VA purposes, and evidence shows that the Veteran was treated once in service for a low back strain, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of low back pain began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records indicate that the Veteran was diagnosed with a low back sprain in February 2008 following presentation to an Army medical center clinic for complaints of and treatment for low back pain. No explanation was noted as to what precipitated the Veteran’s pain. Upon examination, neither disc degeneration nor herniated invertebral disc were detected. The lumbosacral spine was normal in appearance; and there was no tenderness on palpation. Motion was normal and pain was not elicited by motion. Straight-leg testing was negative; and gait and stance was normal. The Veteran received two back injections and was prescribed pain medication. He was advised to remain in his quarters for 24 hours and was to follow up with his primary care manager, as needed. He was also placed on a one-week light duty profile with no physical training during that time. Service treatment records are silent for any follow-up or further complaints of low back pain. Indeed, during an April 2008 outpatient appointment for a different matter, no back pain was endorsed. An examination at the time of separation from service is absent from the record. VA treatment records dated from December 2009 to September 2011 are silent for complaints of or treatment for back pain. In January 2012, the Veteran first reported chronic intermittent low back pain during an appointment to establish care at a new VA facility. He indicated this pain began following a lift injury in 2008. However, in a March 2013 statement, the Veteran reported that his back injury occurred in 2007. Moreover, in a February 2014 Notice of Disagreement (NOD), the Veteran reported that he injured his back during a field training mission when he slipped and fell on rocks. He stated that he received medical treatment and was put on bedrest for four days after being prescribed medication. While the Veteran is competent to report his in-service back pain and that he has experienced symptoms of back pain intermittently since service, the Board is concerned whether such statements have been made for pecuniary interest. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest in benefits may affect credibility of claimant’s testimony.) Upon examination in November 2013, the Veteran described an in-service back injury that occurred during a 2007 field training exercise which resulted in his back being “out” for three to four days. He indicated that he currently had constant pain at a 9 and a half on a scale of 1 to 10, which had worsened in severity over the past year to year and a half. Range of motion was abnormal, but no abnormal physical findings were indicated with examination. X-rays were also normal. The examiner noted that, even when encouraged, the Veteran would not flex further than the point at which pain began. The Veteran endorsed pain at a 9 and a half during all range of motion movements and palpation with stated pain. The November 2013 VA examiner stated that, prior to examination, he observed the Veteran standing up from a sitting position and walking into the examination room at a very slow pace with a grimace on his face. However, no gate disturbance was noted. At the end of the examination, when the Veteran was unaware that he was under observation, the examiner watched him exiting down a long hall at a much faster pace. The examiner opined that the Veteran’s current back pain was less likely than not related to an in-service injury, event, or disease, including the in-service back strain. The rationale was that the Veteran’s in-service back strain resolved during service. In-service and VA treatment records indicated that there was no further documentation of back concerns until 2012. The examiner also noted that the Veteran’s current subjective data was incongruent with objective data. While the Veteran claimed very poor functional class related to his back pain, the examiner referenced a January 2012 VA stress test that the Veteran performed at 13-plus METS that was only concluded due to fatigue; there was no mention of back pain. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his low back pain is related to an in-service injury, event, or disease; however, in this case he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence of record. For all the above reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back condition manifested by pain. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Increased rating for rhinitis In its August 2018 decision, the Board directed the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records that had not been associated with the claims file. Upon review of the VA treatment records obtained from this directive, the Board notes that during a July 2017 VA outpatient visit, the Veteran reported that he was receiving care for his rhinitis from a non-VA specialist. As such, a remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records. The matter is REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 for any non-VA physician who treats/has treated his rhinitis. Make two requests for the authorized records from any identified physician and/or facility unless it is clear after the first request that a second request would be futile. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.