Citation Nr: 21023077 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-22 504 DATE: April 20, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT A lumbar spine disability was not manifest during service or within one year. The disability is not attributable to service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1946 to November 1947 and from September 1950 to October 1951. He died in September 2018. The appellant claims as the surviving spouse. This case was previously before the Board in September 2020, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a low back disability To establish service connection a Veteran must generally show: “(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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Herein, chronic diseases encompasses arthritis. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has asserted that his lumbar spine disability began after an injury in-service when he was moving 5 gallon gas cans. He testified that the pain would affect him every two to three years after service, with the pain becoming more constant in the 1970s. Service treatment records show that his spine was marked normal at separation, and no back injury or pain was reported. The musculoskeletal system and neurologic system were normal. An October 1997 treatment note states that the Veteran reported chronic intermittent low back pain that was likely due to degenerative disc disease. A March 2008 private treatment note indicates that the Veteran presented with a complaint of low back pain and was diagnosed with lumbar degenerative disc disease, with possible lumbar spinal stenosis. The Veteran received a VA examination in May 2013. The examiner recorded the Veteran’s reports that he had various repeated back injuries associated with activities of daily living post-service. He also reported progressive symptoms and stated that it became chronic around 25 years prior. The examiner opined that the Veteran’s degenerative arthritis was less likely than not related to his service because, per the Veteran’s report, his in-service injury was a back sprain, which is a muscle or ligament condition. One back sprain does not cause arthritis. In August 2013, the Veteran submitted a letter from his private physician stating that his in-service injury in 1951 “could have contributed to his current degenerative problems.” This opinion is speculative and therefore of limited probative value. The Veteran submitted a statement in September 2014 stating that the only back injury he ever suffered was the in-service injury in 1951. Upon remand, an addendum opinion was obtained in October 2020. The clinician opined that the Veteran’s degenerative disc disease was less likely than not caused by an in-service injury. The stated rationale was that the Veteran did not report back pain at separation or seek treatment for several decades after separation. Should the Veteran have had chronic back pain, this is inconsistent with the lack of complaints and treatment for such at separation and in the many years thereafter. The Board notes the Veteran’s reports regarding his in-service injury and symptoms of low back pain since service and the ongoing manifestations which he is competent to report. While the Veteran is competent to testify to in-service events, observations and ongoing symptoms, his post service assertions are inconsistent with the contemporaneous record and the normal separation examinations in 1947 and 1951. The 1951 examination disclosed that the spine, musculoskeletal system and neurologic system were normal. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Board finds the contemporaneous medical records and the Veteran’s own reports at the time of the injury and his separation from service to be of greater probative weight than his reports more than 50 years later. Further, the opinions of the VA medical examiners, with supporting rationales, are of greater probative value than the speculative statement submitted by the Veteran’s private physician. The Board finds that the preponderance of the evidence is against finding that entitlement to service connection for a lumbar spine disability is warranted on a direct basis. The Board has also considered whether service connection is warranted as a chronic or presumptive disease. 38 C.F.R. §§ 3.303, 3.307, 3.309. Arthritis of the spine was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. Nor did he have characteristic manifestations sufficient to identify a lumbar disease. As noted above, despite the Veteran’s reports that he injured his back in service and that the pain was chronic thereafter, the separation examination revealed the spine to be normal. The earliest record of treatment for back pain available in the file is October 1997, more than 40 years after separation from active duty. As such, the Board finds that service connection for a lumbar spine disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.