Citation Nr: 21021910 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-15 426 DATE: April 14, 2021 ORDER Entitlement to service connection for a back disability to include degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The preponderance of the evidence is against finding that a back disability to include degenerative arthritis of the lumbar spine 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 back disability to include degenerative arthritis of the lumbar spine 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 September 1967 through September 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, AZ. The Board remanded the claim in October 2018 for further development. Entitlement to service connection for degenerative arthritis of the lumbar spine. The Veteran believes he is entitled to service connection for degenerative arthritis of the lumbar spine. In his April 2014 notice of disagreement, he reported that he injured his back lifting and that his back “went out” in late 1967 or 1968 at Fort Riley, Kansas. He states that he went to sick call and was prescribed Darvon. Later, in 1969, he hurt his back again. The Veteran contends that he received treatment for back pain in 1970. The RO attempted to obtain treatment records several times. In October 2018, the Board remanded the Veteran’s claim in order to provide the Veteran with an additional opportunity to acquire the records. In August 2019, the RO mailed a letter to the Veteran requesting that he execute several forms pursuant to these requests. The Veteran did not return the forms to the RO. VA has done all it can reasonably do to satisfy its duty to assist in this case. See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992). “[The] duty to assist is not always a one way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”. The Veteran must cooperate with the RO to obtain medical records in possession of non-Federal agencies or department custodians. 38 C.F.R. § 3.159 (c)(1)(i) (2017). Under § 3.159 (c)(1)(ii), he must authorize the release of medical records in a manner acceptable to the holder of the records. 38 C.F.R. § 3.159 (c)(1)(ii). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 1995. Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board observes that the Veteran served in the Republic of Vietnam. Under 38 U.S.C. § 1154 (b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. However, his DD Form 214 does not contain indication or suggestion of combat against enemy forces, including especially in the Republic of Vietnam, and does not reflect an award for an injury in combat (e.g. Purple Heart). Moreover, the Veteran has not specifically alleged that he injured his back during combat. Thus, he is not entitled to the “combat presumption”. A finding that he engaged in combat with the enemy requires that he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). The Veteran has a current diagnosis of degenerative disc disease, which the Board noted in its October 2018 remand opinion. However, the weight of the evidence does not establish that the Veteran’s current disability is etiologically related to his military service. While the Veteran asserts that he received treatment for back related complaints in service, his service treatment records (STR’s) do not reflect any symptoms of or treatment for degenerative arthritis of the lumbar spine or any other lumbar spine disability. On the contrary, at his September 1969 service separation examination, the Veteran denied currently having or ever having “back trouble of any kind” and denied ever wearing a brace or back support. Likewise, the examiner that conducted his separation examination did not identify any back abnormality. The lack of back related complaints or treatment in service, along with the lack of a finding of a chronic back disability weigh against a finding that the Veteran had a chronic back disability during his active military service. In a July 2014 statement, Dr. S.P. noted that the Veteran had been his patient since 2003 and was suffering from severe and chronic back pain. The Veteran reported a history of back that began in 1967 and that he had futured injured his back while in Vietnam. Since then, the Veteran back pain had gradually worsened over the years. Notably, Dr. S.P. does not provide a rationale for how this conclusion was reached. Moreover, while noting a history of back pain dating to 1967, Dr. S.P. does not discuss the lack of treatment during service or the lack of identification of any back disability at the time of the Veteran’s separation from active duty. Accordingly, this opinion is of no probative weight as it does not provide a rationale and appears to be based on an inaccurate medical history provided by the Veteran. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). The Board observes that in a November 2015 statement, D.C. wrote that she had know since the Veteran since 1967. She reports that prior to his service the Veteran was a very active young man who participated in sports and other activities. He returned from Vietnam with extreme back pain that made if difficult from him to get up and down without assistance. He had been to many chiropractors to help ease the pain, but this treatment was not successful. While D.C. notes the Veteran had back complaints upon returning from Vietnam, she is not competent to associate these complaints with the Veteran’s current back disability. Moreover, her statements are inconsistent with the Veteran’s reports of not having any trouble at the time of his separation from active duty. Accordingly, the Board assigns the statement little probative weight. In October 2019 the Veteran was afforded a VA examination with regard to his diagnosed disc disease. The examiner confirmed the known diagnosis and listed the date of diagnosis as “unknown.” The Veteran reported to the examiner that he started to experience back pain in 1967 and does not recall any specific injury. The Veteran has not had any back surgery and takes over the counter pain medication when he experiences back pain. The Veteran does report flareups which he contended caused functional loss and difficulty with walking, sitting, kneeling and tying his shoes. An MRI was completed in 2015 at the Phoenix VA and noted multi-level degenerative changes. The Veteran reported that the last time he worked was in January of 2008 and at that time he had difficulty sitting and walking. The Veteran complained of intermittent pain that radiated down the lateral aspect of his legs to the mid-thigh. The examiner opined that based on the MRI, the intermittent radiating pain is less likely as not secondary to radiculopathy. The examiner indicated he reviewed the Veteran’s files and STR’s. He did not see any records indicating a history of visits for low back pain. The examiner found that it is less likely than not that the Veteran’s current back pain is a continuation of pain from the military. The Veteran supplied a note submitted by Dr. P. regarding the Veteran’s back pain. In this note, Dr. P. indicated that the Veteran had been his patient since 2003, that the back pain started in 1967 and the Veteran’s back was injured again in 1968. The examiner indicated that notwithstanding the note from Dr. P., there are no service treatment notes or any other records prior to 2003 indicating injury or treatment for the back or back pain. In contrast to the opinion from Dr. P, the October 2019 VA examiner reviewed the Veteran’s complete claims file in rendering his opinion. The Board finds the October 2019 opinion to be adequate and reliable and affords it great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The examiner’s opinion was based on a thorough review of the record and contains sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the Veteran’s relevant medical history and contentions when formulating the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Additionally, the opinion is consistent with the other evidence of record. In order to establish service connection, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. The Board finds that the evidence weighs against a finding that the claimed degenerative arthritis of the lumbar spine is related to service. While the Veteran reported that he received treatment in 1970, the Veteran did not cooperate with the RO in the attempts to acquire the treatment records and there is no evidence of the claimed disorder in the STR’s. Moreover, as discussed above, the Board has placed greater probative weight on the October 2019 VA opinion over the opinion proffered by Dr. P. To the extent that the Veteran believes that he has a back disability that is related to service, he is competent to relate his personal experiences, but his statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He is not competent to provide an opinion as to the etiology of his current back disability, as such requires medical knowledge and training. Id. Therefore, the Veteran’s assertions are afforded little probative weight, particularly where the weight of the competent medical evidence of record weighs against the claim. To the extent that the Veteran has argued a continuity of symptomatology dating to his military service, the Board finds these reports are not credible. On the contrary, he did not report any back complaints during his service separation examination. Moreover, the first documented treatment of record is dated in 2003 many years after service. This evidence weighs strongly against any current report of ongoing symptoms since service. Further, while Dr. P. has reported a continuity of back symptoms since service, as discussed above, the Board has found this opinion of little probative value as it does not discuss the conflicting findings in the Veteran’s separation examination where the Veteran denied any back trouble and the examiner did not diagnose a back disability. For these reasons, the Board finds that the evidence weighs against a finding that the claimed degenerative arthritis of the lumbar spine is related to service. Service connection is therefore denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.