Citation Nr: 21016162 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-10 543 DATE: March 22, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran’s low back disability is etiologically related to active service, to include as due to an in-service injury, event or disease, or as secondary to his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a low back disability, to include as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1973 to July 1977, with additional service in the North Carolina Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Review of the record indicates that this matter has been previously remanded on multiple occasions, to include most recently in April 2020. In that action, the Board determined that the July 2019 VA opinion was inadequate as, among other factors, the examiner failed to substantially comply with prior Board remand directives. Therefore, an addendum opinion was deemed necessary. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, 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; 38 C.F.R. § 3.102; see 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 of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue). 1. Entitlement to service connection for a low back disability The Veteran contends that he suffers from a back condition that is related to service and/or secondary to his service-connected disabilities. As discussed in more detail below, the preponderance of the evidence is against the claim. Specifically, the Board concludes that, while the Veteran has a current diagnoses of degenerative arthritis of the lumbar spine, spinal stenosis, intervertebral disc syndrome and right lumbar radiculopathy, the preponderance of the evidence is against finding that the condition is proximately due to or the result of active service, to include as secondary to his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; Allen, supra; 38 C.F.R. § 3.310(a). As a preliminary matter, the Board observes that a complete copy of the Veteran’s service treatment records was unavailable for review. Of the available records, a report of medical examination made no reference to a lumbar spine abnormality at enlistment in June 1973. The Veteran was deemed qualified for active service. On the same date, no complaints of recurrent back pain, a bone, joint or other deformity were documented in a report of medical history. In March 1986, the Veteran was treated at sick call for left ankle pain while on patrol during a tactical exercise. A temporary profile was granted. Two months later, an emergency care and treatment record noted an injury to the left ankle and foot in May 1986. According to the Veteran, he suffered a fall from a moving truck. A physical examination revealed tenderness over the distal aspect of the left foot. X-ray findings found no evidence of dislocation. No complaints of back pain or a low back injury were identified. A line of duty determination was, however, rendered regarding a left foot injury. In April 1986, the Veteran was treated at a university medical center for complaints of low back pain over a 4-year period. His current occupation was listed as a construction worker. His official duties included placement of dry wall, metal and sheet rock. The Veteran reported an abrupt onset of pain while sitting on the side of the bed at 1 am. Pain was described as intense and constant; not acute. Other symptoms included aching, throbbing, and radiating pain to the right leg with prolonged walking. Loss of motion occurred with rotating and bending. Arthritis and muscle spasms were suggested. To treat pain, the Veteran reportedly received treatment from a private physician along with chiropractor therapy. He related his back pain to an in-service injury in March 1986. Military personnel records list the Veteran’s official military occupations as an infantryman, Calvary Scout, and food service specialist. Post-service, the Veteran continued to work in construction. In September 2009, the Veteran was evaluated in the emergency department for worsening right-sided back pain over several days. A prior instance of similar pain occurred in June 2009. At that time, he was taken to the hospital and treated for a kidney stones that were discovered via a computed tomography (CT) scan. The Veteran associated his current complaints of pain with his previous bout with kidney stones. A current diagnosis was listed as back muscle strain. On physical examination, muscle tenderness and spasms were observed over the right flank, trapezium and lumbar spine. Years later, the Veteran reported chronic low back pain during a primary care evaluation in January 2011. The same month, X-ray films revealed moderate degenerative changes (ossify ptosis) described as most prominent at L4-L5 and L1. Otherwise, no acute bony abnormality of the lumbar spine was shown. In May 2014, a chiropractic clinical record noted complaints of low back, left hip, and ankle pain that was aggravated with bending. According to the Veteran, he was involved in an auto mobile accident in service and suffered a low back and left ankle injury. In June 2014, X-ray films revealed mild lumbar degenerative changes. A primary care treatment record, dated in August 2014, referenced chronic back pain with radiation to the left lower leg. A current diagnosis of lumbar pain with left lower extremity radiculopathy was indicated. The report of an October 2014 magnetic resonance imaging (MRI) scan of the lumbar spine revealed mild osteophyte disc complex at L5/S1, mild scoliosis, and a left hip strain. Other findings included moderate sized hemangiomas in the vertebral bodies of L2-L4. The disc osteophyte complex abutted the S1 nerve roots minimally, with no evidence of displacement. Minimal foraminal narrowing was also observed. In November 2015, the Veteran was evaluated by a private chiropractor. Complaints of symptoms included lower back and left hip pain, with radiating symptoms to the lower left leg and foot. Range of motion was restricted with painful forward flexion and extension. Right lateral flexion and right lateral rotation of the thoracolumbar spine caused pulling into the left lower back. Left lateral flexion and left lateral rotation caused pain into the left lower back and triggered radicular symptoms into to the left lower extremity. During the clinical evaluation, the Veteran reported paresthesia into the left lower extremity. Evidence of left paralumbar muscle spasm was also noted. At L4-L5 and L5/S1, tenderness to palpation was observed. Radiological imaging documented mild intervertebral disc space narrowing at L5-S1. Studies of the left hip revealed normal findings. Prescribed treatments have included applications of physiotherapy that include electrical muscle stimulation, moist heat with ultrasound, vibratory massage and hydrotherapy. Following the examination, the examiner opined that the Veteran’s current back condition is likely related to his service-related low back injury following a motor vehicle accident in 1986. In February 2017, the Veteran reported ongoing chiropractic treatment for severe low back pain. Two years later, in March 2019, a private chiropractor’s opinion was associated with the record. Therein, the clinician noted that the Veteran had a history of chronic low back pain. Other symptoms included left hip and left lower extremity symptoms. According to the Veteran, an onset of symptoms dates back to a motor vehicle accident during active service in March 1986. He states that he was traveling in a Jeep when it was struck from behind. The force of the accident caused him to fall from the vehicle where he was dragged for several feet. The Veteran contends that his left foot was trapped in the truck during the incident. Post-service, he continues to experience pain in the low back and left hip, that radiates to the left leg and foot. Since separation, the Veteran described acute exacerbations of lower back pain which typically results from performing household chores and/or yardwork. After onset, his symptoms persist for weeks or months before subsiding. In July 2019, the Veteran was afforded a VA examination. Current diagnoses included degenerative arthritis of the lumbar spine, a lumbar strain, and radiculopathy of left lower extremity. During the clinical interview, the Veteran reported an injury to the lower back following an in-service training exercise in March 1986. He reported that he has experienced constant pain with decreased range of motion since separation. On examination, range of motion testing revealed normal findings. Objective evidence of pain was documented on physical examination with all ranges of motion, which resulted in functional loss. Pain was also observed with weight-bearing. No additional functional loss or loss of range of motion occurred with repetitive use testing. Neither pain, weakness, fatigability or incoordination significantly limited his functional ability. No additional factors were listed as contributing to the Veteran’s disability. He denied having flare-ups. No guarding or muscle spasms were indicated. Sensation and muscle strength testing revealed normal findings. There was no evidence of muscle atrophy, crepitus, or ankylosis. Straight leg testing was negative. Moderate paresthesias and/or dysesthesias and numbness impacted the left lower extremity only. Mild involvement of the left sciatic nerve was also indicated. There was no evidence of intervertebral disc syndrome (IVDS). The Veteran denied use of assistive devices. Diagnostic findings, dated in July 2019, show mild narrowing the L5-S1 intervertebral disc space, multilevel facet arthropathy, and moderate spondylosis. A functional impact was described as an inability to perform heavy lifting or engage in prolonged walking or standing. The Veteran’s current occupation was listed as a construction worker. Passive range of motion testing was not performed. There was no objective evidence of pain when the spine was observed in a non-weight bearing position (at rest). Following the clinical evaluation, the examiner opined that the medical evidence did not support an etiological linkage between the Veteran’s low back pain with related diagnoses and active service. Specifically, the examiner suggested that initial complaints of symptoms were first documented twenty years after separation. In support of this finding, the examiner indicated that the Veteran’s period of active service was from 1973 to 1977 only. Pursuant to an April 2020 Board remand action, the Veteran’s claim was remanded for a new VA medical opinion. It was noted that the Board’s prior remand directed that an examiner provide an opinion as to etiology of any diagnosed back disability and that the Veteran should be deemed a credible historian and therefore, his lay assertions regarding the onset, history of treatment, and symptomatology should be fully considered. Regrettably, the obtained opinion was found to be inadequate. Notably, the July 2019 VA examiner’s opinion inaccurately determined that the Veteran only had active service until 1977. In addition, the examiner failed to consider evidence of treatment for low back pain in 1986. There was no evidence that the Veteran’s lay statements regarding the onset, history, and treatment for back pain was ever considered. Therefore, an addendum opinion was deemed necessary. Furthermore, the Board’s April 2020 decision also noted that the Veteran served with United States Army National Guard from August 1978 to July 1993. After multiple requests, additional service treatment records were associated with the claims file in April 2019. The records document a line-of-duty determination regarding a left foot injury that occurred during a March 1986 training exercise at Fort Bragg, in North Carolina. On examination in December 2020, current diagnoses included degenerative arthritis of the lumbar spine, spinal stenosis, IVDS, and right lumbar radiculopathy. Flare-ups were described as sharp and severe pain which recurred up to 15 times per week. After onset, symptoms persist for 3 to 4 days. Flare-ups were precipitated by bending, walking, or maneuvering over uneven surfaces. Entering and exiting his personal vehicle also causes flare ups. The Veteran endorsed symptom improvement with chiropractic treatment, use of a transcutaneous electrical nerve stimulation (TENS) unit and heat therapy. Range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 25 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 15 degrees, right lateral rotation limited to 10 degrees, and left lateral rotation limited to 10 degrees. Pain was observed on examination with rest, non-movement, and weight-bearing. There was no evidence of localized tenderness, pain to palpation, or associated soft tissues of the lumbar spine. No additional loss of function or range of motion was observed with repetitive use testing. Pain caused functional loss over time with repetitive use. It caused an additional loss of range of motion of 5 degrees of flexion, extension and left lateral flexion. There was no evidence of guarding or muscle spasms. No additional factors were listed as contributing to the Veteran’s disability. Sensation and muscle strength testing yielded normal findings. Straight leg raise testing was negative. Mild paresthesias and/or dysesthesias and numbness impacted the left lower extremity only. Involvement of the right sciatic nerve roots were indicated. Mild radiculopathy impacted in the right side. There was no evidence of crepitus or ankylosis. Favorable findings of IVDS was indicated with no evidence of incapacitation episodes. The Veteran denied use of assistive devices. Radiological imaging (X-ray films), dated August in 2020, revealed no evidence of acute fracture or subluxation of the lumbar spine. Anterior bridging osteophytosis was observed throughout the lumbar spine. It was most prominent from L3 through L5. Facet hypertrophy and disc space narrowing was shown at L5-S1. Mild disc space narrowing impacted T12 through L2. Two months later, magnetic resonance imaging, dated October 2020, revealed multilevel degenerative disc disease resulting in mild bilateral-foraminal stenosis at L4-L5 and L5-S1. The Veteran described the functional impact of his back pain as difficulty with prolonged walking and standing for more than 30 minutes. He also reported difficulty pushing, pulling, lifting, carrying greater than 15 pounds, bending and twisting at the waist. Pain and stiffness impaired the Veteran’s ability to perform physical labor requiring prolonged sitting without a scheduled break; standing for extended periods; or serving in roles that require back rotation, monitoring personnel or equipment in controlled environment such as a warehouse or factory. Following the clinical evaluation, the examiner opined that it is less likely than not that the Veteran’s back disability was caused or aggravated by active service, to include the March 1986 training exercise. In support of the stated conclusion, the examiner noted that the Veteran served on active duty between June 1973 and July 1977, with an additional period of service with the National Guard. The examiner acknowledged the line-of-duty determination regarding a left foot injury that occurred during a March 1986 training exercise at Fort Bragg, North Carolina, but noted that there was no mention of a low back injury. The examiner further referenced private medical records, also dated in 1986, that noted a history of back pain over the previous 4-year period, during which time the Veteran worked in construction (metal and sheet rock). The examiner pointed out that in June 1986, the Veteran exacerbated his preexisting back pain while moving sheet rock in a sweeping motion, that chiropractic treatments were used to treat pain and decreased range of motion, and that due to pain, time off and/or a change in occupation was recommended. The examiner went on to state that a review of medical literature suggests that spondylosis and/or degenerative arthritis of the lumbar spine is the most common cause of lumbar spine stenosis and typically affects individuals over the age of 60 years. The examiner also noted that lumbar radiculopathy and IVDS typically result from compression and irritation of the lumbar spine nerve, producing lower extremity symptoms of tingling paresthesias, and numbness. Considering the above, the examiner opined that it is less likely than not that the Veteran’s low back condition is proximately related to active service, nor secondarily related to his service-connected disabilities. In so finding, the examiner noted that there is no pathophysiology to support an etiological linkage between the Veteran’s service-connected tinea pedis, depression, tinnitus, and/or hearing loss and any diagnosed lumbar spine disability. Conversely, the examiner determined that the Veteran’s degenerative arthritis of the spine and related lumbar spine conditions are more likely related to occupational trauma, genetics, and normal wear and tear. In multiple lay statements, the Veteran reported an in-service back injury. He also reported worsening symptoms as causally related to his service-connected disabilities. While the Board has fully considered the Veteran’s lay statements regarding constant back pain and recognizes his subjective belief that his lumbar spine conditions are causally related to active service, to include on a secondary basis; he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical training, expertise, and the ability to interpret complicated diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In this case, the Board recognizes that the Veteran was treated for a left leg and ankle injury following a motor vehicle accident during active service in 1986. No complaints of low back pain or a low back condition were reported. The same year, a private treatment record listed complaints of chronic low back pain over a 4-year period. Despite the Veteran’s contentions, there is no record of treatment or complaints of chronic low back pain over the stated period. Post-service treatment records note complaints of right-sided low back pain in connection with prior treatment for kidney stones in 2009. Two years later, X-ray films confirmed evidence of degenerative changes of the lumbar spine in 2011. Diagnostic imaging confirmed other lumbar spine abnormalities in 2014 and 2020. Moreover, the Veteran has been afforded multiple VA examinations. At no time has a nexus been established between the in-service Jeep accident and his current lumbar spine diagnoses. Similarly, there is no evidence of a secondary linkage or common pathology between the Veteran’s low back conditions and his service-connected disabilities. While the Board has fully considered private treatment records suggesting complaints of low back pain in 1986 and favorable private chiropractic opinions, dated 2015 and 2019, which related the Veteran back conditions to active service, there is no evidence of persistent symptomology or related treatment between 1986 and the next reference to low back pain in 2009. Even if the Board were to presume the veracity of the Veteran’s lay contentions, the available medical evidence provides no basis to relate his current low back conditions to active service. In fact, review of the medical literature suggests a correlation between the Veteran’s low back disabilities and his lengthy history of work in the construction industry, genetics and age-related deterioration. While the Board is sympathetic to the Veteran’s subjective belief that his low back condition is causally related to active service, to include as secondarily related to his service-connected disabilities, the evidence of record does not support his assertion. The Board further notes that the Veteran has presented no argument in support of his claim on a secondary basis, to include presenting any lay evidence identifying why he believes that his back disability was caused or aggravated by a service connected disability. Additionally, no private clinician has suggested an association between the Veteran’s back disability and any service-connected condition. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a low back disability must be denied. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.