Citation Nr: 21015791 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-53 933 DATE: March 18, 2021 ORDER Entitlement to service connection for a low back condition is denied. FINDING OF FACT The weight of competent and credible evidence of record does not show that the Veteran’s lumbosacral strain first onset during or within one year of active duty and is not caused by any aspect of active duty. CONCLUSION OF LAW The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy as a damage controlman from March 2000 to September 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified during a Board hearing in January 2020; the transcript has been associated with the file. In May 2020 the Board issued remand orders for further development. There has been substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (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. Some chronic diseases, such as hypertension, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331. 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a) (2016); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433; Jandreau v. Nicholson, 492 F.3d 1372, 1377. If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519. Entitlement to service connection for a low back condition The Veteran claims entitlement to service connection for lumbar strain, claimed as chronic low back pain. The Veteran submitted a claim of service connection for low back pain in March 2012. The Board issued remand orders in May 2020, having found that further development was required to issue a decision. The Veteran’s service treatment records (STRs) showed no evidence of treatment or diagnosis of back pain while on active service. In an August 2003 medical assessment, the Veteran did not report back pain. Rather, on the Veteran’s October 2006 reenlistment Report of Medical History, he denied “recurrent back pain or any back problem.” See August 2009 STR-Medical, p. 32. Post-service, the first instance of back pain in the record came in the form of a December 2012 VA new patient note, in which the Veteran stated that he began experiencing back pain in 2011. See July 2018 CAPRI, p. 94. The first instance of the Veteran reporting back pain came in December 2012, a VA new patient note stated that the Veteran “came to the clinic because of back pain. This started about a year ago when he started experiencing low back pain that goes across the lumbar level.” See July 2018 CAPRI, p. 94. The Veteran’s statements regarding the chronicity of his back pain changed in June 2013, as a primary care physician note stated that “patient came in because of back pain which occasionally radiate to the legs...patient alleges that the pain started when he was in deployment and has been getting worse. Start ibuprofen...” Id, at 85, 129. The Board notes that the Veteran was noted as taking acetaminophen for low back pain in March 2014. Id at 10. Following March 2014, VA records are silent as to VA treatment. And while back pain was noted in the Veteran’s record, the Board has not found an instance of a physician diagnosing the Veteran with a disability. The Veteran further testified at his January 2020 Board Hearing as to the rigorous nature of his duties, how there was a culture of not reporting pain out of fear of showing weakness, and as to continuity of symptoms. See January 2020 Hearing Transcript, p. 4. The Veteran further identified treatment that took place, records of which were not before the Board. As such, the Board issued remand instructions for the Veteran’s medical records to be obtained, and for a nexus opinion to be provided. The Veteran’s medical treatment records are now of record. Records of outpatient primary care in September 2006, October 2006, July 2007, October 2017, December 2017, May 2018, December 2018, May 2020, and June 2020 note no reported back pain. For the first time in August 2020, the Veteran sought primary care for low back pain for the past four months, although he also reported that he experienced it “for years.” A clinician diagnosed left side sciatica and ordered an imaging study. In September 2020, a magnetic resonance image study showed a broad based central disc protrusion with mild canal stenosis. The evaluator noted chronic low back pain with left radiculopathy but cited only “many years of military service.” Medical Treatment Record – Non – Government Facility. However, the Board finds that this brief statement is of low probative value, as it is devoid of any rationale. As per Board remand instructions, a VA examination was provided in October 2020. The VA examiner diagnosed the Veteran with lumbosacral strain after performing an in-person examination. The Veteran reported constant daily low back pain, which is worse with activity, prolonged sitting and driving, with radiating pain down left posterior leg to the hamstring with mild numbness and tingling. The Veteran further reported severe flare ups occurring twice per week and lasting all day. See #1 October 2020 C&P Exam. The VA examiner stated that “it is less likely that his back pain diagnosed as lumbar strain and LLE radiculopathy had its onset during active service or within one year or separation…the veteran served from 2000-2003. After reviewing his records, there is insufficient evidence to demonstrate that his back condition began during or within 1 year of separation from service.” See #2 October 2020 C&P Exam. The Board finds that the October 2020 VA examiner’s opinion has significant probative value, as the examiner conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements, and provided a rationale supported by the record. The examiner did cite an absence of reports or treatment for back pain for many years after service, and the absence of treatment alone is not a sufficient basis for a negative opinion. However, the Board finds that the Veteran’s report of a culture that discouraged seeking medical care in service warrants less weight as the STRs do show treatment for minor medical issues and was often questioned regarding musculoskeletal pain and the answer was none. The Board places weight on the reenlistment examination in 2006 in which he denied any recurrent back pain, and on the outpatient records from 2006 until August 2020 where the Veteran either denied or failed to mention back pain during an examination or primary care visit when there was an appropriate opportunity to do so. Therefore, there is a foundation to accept the examiner’s opinion that the back disability at least did not begin within one year of active duty and did onset at a time distant from that duty to support the opinion that the activities on active duty did not cause the current spinal abnormality. Given that the October 2020 VA examination contains the most probative nexus opinion of record, the Veteran’s claim of service connection must be denied. In reaching this conclusion, the Board has considered the Veteran’s lay statements and acknowledges that the Veteran believes that his current back condition was caused by his military service. However, a nexus between the Veteran’s current condition and his military service is not something that the Veteran has been shown to have the requisite knowledge and training to provide. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.