Citation Nr: 21022283 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-02 441 DATE: April 15, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disease is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar spine degenerative disease began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative disease are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1993 to January 1997. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. [Tr.] As pertinent to this appeal, after a November 2017 Board remand, in a December 2019 decision, the Board denied the Veteran’s claim for service connection for a lumbar back disability. He appealed the Board’s December 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in September 2020 granting a September 2020 Joint Motion for Partial Remand (JMPR). The Court’s Order vacated and remanded the Board’s decision denying service connection for a lumbar spine disability for action consistent with the terms of the JMPR. Entitlement to service connection for lumbar spine degenerative disease The Veteran contends that his back condition manifested in service. Specifically, the Veteran testified that while he was helping to guide an accommodation ladder, a crane wire slipped and he instinctively moved to grab it, which caused his back to get pulled forward and it “popped.” Tr. 2. The Veteran states he has had a back problem ever since. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, where a veteran served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Degenerative joint disease (arthritis) is on the list of chronic diseases which may be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of the evidence of record, the Board finds that the evidence does not support the establishment of service connection for lumbar spine degenerative disease. A current diagnosis of degenerative disease of the lumbar spine is of record. See January 2012 VA Examination. The first element is met. The service treatment records (STRs) show the Veteran did not have complaints, treatment or diagnoses relating to degenerative disease of the lumbar spine. There were no back conditions noted during the May 1992 enlistment examination. In December 1995, the Veteran reported low back pain and spasms which the Veteran reported happened while lifting and moving a ship’s ladder. He was diagnosed with back strain, sent home to SIQ (sick in quarters) for 72 hours with Robaxin, placed on light duty for one week, placed on modified duty for 10 days, and instructed to follow up to sick call in three days. There is no record he returned to sick call for follow up at that time. The Board finds that the Veteran’s December 1995 contemporaneous report of the details of the event causing his back injury satisfies the second requirement of service connection. Therefore, the sole remaining issue is a nexus. In addition to the December 1995 back strain, the STRs show that in March 1996, the Veteran reported back pain for two days. He denied lifting anything to injure his back and was diagnosed with low back pain. He was prescribed back exercises and Motrin, placed on light duty for seven days and instructed to follow up in five days, but there is no record he did so. The Veteran checked “yes” for recurrent back pain on the October 1996 separation examination evaluation. In October 1996, approximately two weeks after his separation examination, he reported low back pain for 36 hours with no recent trauma. He was diagnosed with low back pain and given light duty for an “estimated” three days. There are no further low back complaints, treatments, or diagnoses in the balance of his STRs. The Veteran separated from service in January 1997. The Veteran underwent a VA back examination in January 2012 and was diagnosed with lumbar spine degenerative disease with radiculopathy. He reported a 1993 or 1994 date of onset due to hurting his back when maneuvering a ship’s ladder. The VA examiner stated he was unable to give an opinion without resorting to mere speculation because there is no documentation of back pain for the period 1997-2004 to establish chronicity of the current condition relating to the incident that occurred in service in the 1990s. A review of the Veteran’s VA treatment records beginning in December 1997 shows the earliest post-service complaint of back pain in October 2004. Of note however, an April 2001 VA treatment note shows that the Veteran reported being in a car crash five days earlier. The Veteran was a passenger when the driver hit the curb, the car rolled, and the Veteran was ejected from the car. The Veteran stated no x-rays were taken at the time and reported some neck pain and right hip pain with movement. In May 2001, a VA record of hip x-rays shows a clinical history notation of his being involved in a motor vehicle accident four days earlier. Additionally, December 2014 VA treatment notes show that he was involved in an accident while driving his 4-wheeler when he flipped over the handlebar, and when he “wrecked,” the 4-wheeler ran him over. He reported spasms and tenderness in his neck and upper back. In a May 2018 restatement of opinion, a VA examiner opined that the Veteran’s lumbar disability was less likely than not incurred in or caused by the in-service injury. The examiner noted the Veteran stated he had low back pain ever since service during the April 2017 hearing and referred to his VA treatment notes. The examiner noted that in January 2005, the Veteran denied musculoskeletal pain and in October 2000 stated that he was working construction, which the examiner noted was an occupation with a high rate of back problems. The examiner further noted the April 2001 motor vehicle accident. The examiner stated, “[t]hus, there is no objective evidence to support a chronic back condition resulting from the injury in service.” Although the Veteran is competent to report back pain, there are no post-service records of complaints or treatment for back pain until 2004, almost eight years after discharge. As discussed below, when considering the absence of complaints and the other objective evidence of record, the Board finds that such is a factor against the Veteran’s claim. Moreover, although he is competent to report back pain, he has not been shown to be competent to report an etiology for his back pain. A qualified medical opinion is required to link his symptoms or disability to service or any injury or event of service. The Veteran does not possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, his statements do not constitute competent medical evidence on etiology. As noted above, in December 1995, the Veteran reported that he hurt his back while lifting and moving a ship’s ladder. Additionally, throughout the record there are varying accounts associated with the in-service event. In a December 2010 Statement in Support of his initial claim, he reported injuring his back when a Jacob’s ladder fell on him. In a January 2011 Statement in Support of Claim, he reported injuring his back helping a ship with their accommodation ladder and when he was holding the ladder, a crane slipped and caused his lower back to give out. The Veteran similarly reported his back injury was caused by a ladder being maneuvered that slipped in connection with a January 2012 VA general medical examination. But in a January 2016 Statement of Accredited Representative, the Veteran is noted to report that the back injury happened when the ladder he was trying to maneuver down, slipped and he fell hard. During the April 2017 Board hearing, the Veteran testified that he hurt his back when a crane holding a heavy accommodation ladder slipped while he was guiding the ladder into place. The Veteran testified that he both instinctively moved to grab it, and also that he tensed and his back “got pulled forward and popped.” Tr. 2, 11. Nonetheless, as noted, the length of time and other intercurrent events between the Veteran’s separation from service and the first complaints of back pain in October 2004 weigh against the contention that his lumbar spine degenerative disease is directly related to service. The Veteran’s post-service medical treatment records are extensive, beginning in 1997, and show that he sought VA care for various medical conditions and injuries and also sought VA care with respect to homelessness, unemployment, substance abuse and mental health issues, but yet there is no complaint of back pain until October 2004, when he reported an episode of severe lower back pain in August 2004, reporting that he could not walk. The Board acknowledges the Veteran’s lay statements regarding the onset of his lumbar spine disability during service but finds these statements are entitled to little probative weight. Although the Veteran made note of and sought treatment for numerous other conditions during his service, including relatively minor or transient conditions, and sought treatment for lower back pain in the three above-noted instances during his active duty service, there is no further mention of his lower back problem after the reported injury of onset. Neither the March 1996 nor October 1996 lower back complaints are recorded to be related by the Veteran or his in-service provider to the December 1995 back injury. The Board thus finds it reasonable to infer that, given the Veteran’s description of the nature and severity of his symptoms, he likely would have sought medical attention more often during service and/or noted the December 1995 event during the March 1996 and/or October 1996 treatment for lower back pain. Similarly, he likely would have sought post-service medical attention for lower back pain prior to October 2004. The Board additionally notes the Veteran’s testimony that he first sought VA treatment for his back disability about a year after separation from service. Tr. 11. The lack of medical evidence to support this contention again brings the Veteran’s credibility in question. He further testified that no medical provider related his current back disorder to the in-service event because they never asked him about it. Id. In this regard, the Board points out that his post-service VA treatment records generally show the VA medical staff recorded whether his physical complaints arose out of some injury or trauma. For example, in June 2016, the Veteran presented with a left leg laceration and reported he was cutting plastic when he cut his left leg. In November 2015, the Veteran presented with left eye pain/photophobia after being hit in the eye with a rock from an ATV. In December 2014, the Veteran presented to the emergency department with left-sided face pain, left shoulder pain and upper pain due to his 4-wheeler accident. Based on the above, the Board finds it reasonable to conclude that medical providers would inquire about the initial cause of the Veteran’s self-reported chronic back pain, or that the Veteran would relate the details himself, as is the case generally with his other reported physical issues of record. Based on the above, the Board finds that any contention as to back pain since service is less than credible based on the record as a whole. Specifically, the likelihood of his seeking additional in-service medical treatment and post-service medical treatment shortly after his separation for a chronic back disability given his description of the nature and severity of symptomatology, and the fact that the first post-service back pain complaints do not appear until October 2004 although the Veteran reported seeking VA treatment for his back approximately a year after separation support this finding. Moreover, the record shows that the Veteran reported post-service work history that included day labor jobs such as plumber’s helper and landscaping, warehouse work, as well as construction. See January 2012 VA General Medical Examination Report, January 2001 VA Vocational Rehabilitation Note and October 2000 VA Treatment Note. As the May 2018 VA examiner noted, construction is an occupation with a high rate of back problems. The Board finds it likely that plumbing, landscaping, and warehouse work are similarly hard on the worker’s back, as all of these occupations involve repetitive bending, lifting, and twisting every day. There is no competent and credible opinion or evidence based on a review of pertinent evidence that his lumbar spine degenerative disease is causally related to service, to include his in-service complaints. The Board has also considered whether service connection is warranted on a presumptive basis. In this regard, the clinical evidence of record fails to show that the Veteran’s lumbar spine degenerative disease manifested to a degree of 10 percent within the one year following his discharge from active duty service. Additionally, despite the Veteran’s complains of pain since service, continuity of symptoms since service has not been established. As set forth above, the first reports of lower back pain are not until almost eight years after discharge and degenerative disease was not diagnosed until October 2009. Additionally, in May 2018, the VA examiner found no objective evidence to support a chronic back condition resulting from the injury in service. Rather, the examiner referenced the Veteran’s post service occupation, motor vehicle accident, and post service treatment report, wherein no musculoskeletal pain was noted. Given the foregoing and the reasons set forth above, the Board finds that the probative and persuasive medical evidence shows that service connection on a continuity of symptomatology basis is not warranted either. Based on the foregoing, the Board finds that lumbar spine degenerative disease is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of service discharge, and that continuity of symptomatology has not been established. Because the competent and probative evidence of record fails to reflect a connection between the Veteran’s current lumbar disability and his active duty military service, to include his in-service injury, service connection for lumbar spine degenerative disease is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49.   The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.