Citation Nr: 21022656 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-23 681 DATE: April 16, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran’s back disability did not manifest during active service; arthritis of the back did not manifest within one year of separation from active service; and there is no indication that the back disability is causally related to active service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1971 to May 1974. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018, the Board remanded the claim for additional development. The case has since been returned to the Board for further appellate review. Service Connection – Back Disability The Veteran maintains that he has a current back disability as a result of an injury he sustained during basic training. In a May 2016 statement, he reported that he was engaged in hand-to-hand combat using pugil sticks when he was hit hard enough in his back to knock him off his feet. He stated that he was told by his drill sergeant to get back in line and was not able to go to the infirmary, which is why his service treatment records do not document any complaints or treatment of the injury. He stated that he began to feel the effects of the hit in the 1980s with back pain and numbness in his legs. The Veteran service treatment records are unremarkable for any complaints, treatment, or diagnoses related to his back. His records do indicate that he complained and was treated for other problems, including stomach pains, constipation, and bilateral calf pain. At his January 1974 separation examination, his spine and lower extremities were normal. Post service, an August 1988 private treatment record noted that the Veteran had a history of bilateral leg numbness that had been present since 1973 on return from military life. It was noted that the etiology was unclear. A CT scan revealed mild to moderate spinal stenosis at L3-L4 and that there was a suggestion of left-sided herniated disc at L5-1. In May 1989, it was noted that he had a recurrence of back pain with radicular pain down the left side and was now having some pain on the right side. In May 1990, it was noted that he had mild lumbar spondylosis and spinal stenosis with bilateral lower extremity neurogenic claudication. In 1990, he underwent a decompression laminectomy, which relieved his neurogenic claudication. A March 2013 private treatment record noted that the Veteran had a history of back arthritis and two surgeries. In September 2013, magnetic resonance imaging (MRI) showed extensive multilevel degenerative disc disease/spondylosis and diffuse arthropathy. In September 2014, he reported that the pain started gradually in the 1980s, and that he underwent a L3-L5 laminectomy, which relieved his symptoms for almost 15 years. During a March 2016 VA general medical examination, the Veteran reported that in approximately 1978, he was walking in a fishing hole with his brother in law when his legs went numb on him. He denied any problems with his back or legs before that incident. He stated that after testing, he was eventually told he had a narrowing of his spinal canal and disc protrusion. During a March 2016 VA back examination, the Veteran reported that during the third week of basic training, he was doing hand-to-hand combat and got hit on the upper back. He stated that he was flattened out at the time, but had to continue. He stated that a bone broke off and traveled down his back and became the bone spurs found during his first back surgery. The diagnoses were intervertebral disc syndrome (IVDS), status post lumbar laminectomy, and status post L4-5 decompression with L5 foraminotomy. The examiner opined that the back disability was less likely than not incurred in or caused by service. She noted that his service treatment records showed a complaint of bilateral calf pain with standing, but that it was not related to later complaints of bilateral numbness in the legs. She also noted that the Veteran was diagnosed with a congenital spine disorder, i.e., congenital lumbar spine stenosis of L3 and L5, which clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. In September 2018, the Board remanded the claim to obtain a supplemental VA medical opinion addressing the Veteran’s contention that the injury during basic training caused his back disability. In July 2019, the VA examiner opined that the back disability was less likely than not incurred in or caused by the claimed in-service injury. She noted the Veteran’s complaints during service of bilateral calf pain with standing after getting hit in the upper back during hand-to-hand combat. She stated that if bones were broken off and traveled down his back, signs and symptoms would have been evident at the time and so severe that he would not have been able to complete three more years of active service. She also noted that thoracic or upper back injuries would cause radiculopathy around the chest area because that is where the nerve roots lead, but that there were no complaints related to the chest area found or voiced during service. She also noted that November 1990 surgical records showed a “congenital lumbar spine stenosis 3rd and 5th lumbar interspaced.” She stated that spinal stenosis was a congenital defect from birth and not caused by the subjective complaints of getting hit in the upper back during hand-to-hand combat. In this case, the Board finds the most probative evidence weighs against the claim. Although the Veteran reported that he was hit in the back during hand-to-hand combat and he complained of bilateral calf pain during service, there was no treatment for a back disability during service. Furthermore, at his January 1974 separation examination, his spine was normal. After service, the onset of his back pain and numbness in the lower extremities is unclear. In 1988, he reported experiencing bilateral leg numbness since 1973; however, during the March 2016 VA examination, he stated that his symptoms began in 1978 while walking in a fishing hole and that he had no back or leg problems prior to that incident. The first documentation of a back disability was in 1988, over 14 years after discharge. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See, e.g., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also notes that the Veteran has been diagnosed with a congenital defect of the spine. However, service connection is not warranted for a congenital defect in its own right, and there is no evidence of a superimposed disease or injury related to service. Furthermore, the VA examiner opined that the Veteran’s back disability was less likely than not related to service. The examiner considered and addressed the relevant evidence of record and provided rationale for her opinion. For this reason, the Board finds the VA examiner’s opinion significantly probative. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced. However, his statements regarding the onset of his symptoms have been inconsistent and therefore lack credibility. Furthermore, the ultimate questions of diagnoses and etiology in this case extends beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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.