Citation Nr: 21023346 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-04 171 DATE: April 20, 2021 ORDER Entitlement to service connection for right shoulder disability is dismissed. Entitlement to service connection for lumbar spine disability is denied. FINDINGS OF FACT 1. In a signed March 2021 Appeals Satisfaction Notice, the Veteran requested to withdraw his service connection claim for right shoulder disability on appeal. The form included the Veteran’s name and VA file number. 2. The Veteran’s lumbar spine disability did not originate in service, within a year of service, and is not otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of the Veteran’s substantive appeal have been met as to his claim of entitlement to service connection for right shoulder disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.200, 20.202, 20.205. 2. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971, and from September 1990 to July 1991, with additional service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from January 1998 and August 2011 rating decisions by a Department of Veterans Affairs Regional Office (RO). In October 2016, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. At that time, the Board held the record open for 60 days for the Veteran to submit additional relevant evidence. By way of history, in a May 2017 decision, the Board remanded the Veteran’s service connection claims for right shoulder and low back disability, in part, to obtain updated VA treatment records. The Board additionally remanded those claims to obtain VA examinations. With regard to the claim for low back disability, the requested examination was obtained in October 2017. In a March 2018 decision, the Board denied the Veteran’s service connection claim for low back disability. The Board additionally remanded the service connection claim for right shoulder disability for further development. With regard to the denial of service connection for low back disability, the Veteran appealed the Board’s denial of that claim to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2019 Order, the Court vacated the Board’s March 2018 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by not ensuring that the RO complied with the Board’s May 2017 remand instructions to obtain all relevant VA treatment records dating from June 2016. In July 2019, the Board remanded the Veteran’s service connection claim for lumbar spine disability and instructed the Agency of Original Jurisdiction (AOJ) to obtain updated VA treatment records. The Board additionally remanded the service connection claim for right shoulder disability in January 2020 to obtain another VA examination. The Board notes that updated VA medical records and the requested VA examination have been obtained and associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Withdrawal 1. Right Shoulder Following further development of the Veteran’s service connection claim for right shoulder disability, a January 2021 rating decision granted service connection for right upper extremity radiculopathy and assigned a 20 percent rating effective May 7, 1996. Thereafter, in March 2021, the Veteran submitted an Appeals Satisfaction Notice in which he stated he had received the recent rating decision granting one of the issues on appeal, and that based on the decision rendered, he was satisfied and wished to withdraw all remaining issues associated with that claim. Accordingly, the Veteran requested to withdraw all remaining issues contained in the most recent SSOC (i.e. January 2021 SSOC addressing right shoulder disability). The notice was signed and included the Veteran’s VA claim number. The Board notes that a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.205(b) (designated under 20.204 prior to February 19, 2019). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.205(b)(1). As the Veteran has asserted that he was withdrawing his service connection claim for right shoulder disability that meets the statutory requirements, the Board finds the Veteran’s request to withdraw his claim qualifies as a valid withdrawal. See 38 C.F.R. § 20.205. Accordingly, there remain no allegations of error of fact or law for appellate consideration as to that issue and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Lumbar Spine The Veteran seeks entitlement to service connection for lumbar spine disability. Specifically, the Veteran asserts that his lumbar spine disability was caused by his military occupational specialty (MOS) which required him to perform maintenance jobs and loading trucks and heavy equipment resulting in tremendous strain on his lower back. Alternatively, the claim has been considered on the basis of an undiagnosed illness. See October 2000 Statement and October 2016 Board Hearing Transcript and May 2017 Board Decision. The evidence of record includes service treatment records (STRs) showing that in June 1987, he complained of back pain and reported doing a lot of riding the past two days, and that the previous night he helped lift heavy equipment. The Veteran was assessed with lower back pain and possible muscle spasm. An October 1990 “over 40” examination noted a normal spine and the Veteran denied any recurrent back pain. A March 1991 redeployment examination noted no lumbar spine disability, only stomach problems. The Veteran denied any recurrent back pain. Additionally, a June 1991 “out of process retreat” examination noted a normal spine and the Veteran denied any recurrent back pain. Thereafter, an October 1991 STR noted that the Veteran’s chief complaint concerned a cold and a back ache. The Veteran was prescribed Tylenol for muscle aches and pain and Robitussin for a cough. Post-service in May 1996, the Veteran complained of joint pain reportedly affecting his shoulders, elbows and knees. He did not report any back pain. The Veteran also underwent a VA general examination in May 1996. The Veteran complained of aching joints affecting his bilateral shoulder, neck, knees and elbows. The Veteran further reported that he injured his left leg and foot during a 12 mile hike during Operation Desert Storm. He did not report a lumbar spine disability or injury. A June 1997 Alabama Army National Guard retention examination noted a normal spine and the Veteran denied any recurrent back pain. In March 1999, a VA medical record shows the Veteran reported that his occupation involved operating and repairing industrial cranes. The Veteran noted a past medical history including hypertension, hypercholesterol, tobacco use, and arthritis of the knees. He did not report a lumbar spine disability or injury. See VA Medical Records Received June 2016. In an October 2000 statement, the Veteran asserted lower back pain secondary to being in a direct support maintenance unit and performing different maintenance jobs in the field which resulted in “tremendous strain on my lower back.” In this regard, the Veteran reported pulling 5 to 10 ton engines and transferring cases. A March 2002 medical record shows the Veteran presented with complaints of right-sided lower back pain that began approximately 3 weeks prior. An MRI study revealed minimal posterior broad-based disc bulging at L3-L4, L4-L5 and L5-S1, and degenerative changes. See STRs Received July 2016. A July 2004 VA medical record shows the Veteran underwent a back examination which revealed no deformity, tenderness to palpation or costovertebral angle tenderness. In February 2008, the Veteran complained of a recent pulled muscle in his right back and ribs which occurred while fixing a car. A June 2008 VA medical record shows the Veteran complained of lower back pain which had reportedly been present for years. See VA Medical Records Received June 2020. In a March 2011 statement, the Veteran asserted that during his deployment to Saudi Arabia he suffered major injuries performing direct support maintenance jobs in the field which caused a tremendous strain on his lower back. A June 2011 VA medical record shows the Veteran reported long standing back pain since he came back from service in the 1990s. See VA Medical Records Received June 2020. The Veteran underwent a VA lumbar spine examination in July 2011. The Veteran reported injuring his back during service reportedly as a result of picking up an object which caused him to develop acute lower back pain. He also reported receiving an MRI study and light duty for 6 to 7 weeks. After separation from service, the Veteran reported working as a welder until 1997. Since separation from service, he reported continued back pain which had progressively worsened. The examiner noted an in-service complaint of back pain due to muscle spasms. In addition, the examiner noted an October 1990 STR noting no history of back pain, a March 1991 STR noting no history of back trouble, and a 2002 MRI study revealing mild degenerative arthritis. The examiner diagnosed the Veteran with chronic lumbar strain and mild degenerative disc disease (DDD). The examiner opined that the Veteran’s lumbar spine disability was “less likely as not (less than 50/50 probability)” etiologically related to service. In support of this opinion, the examiner noted that the in-service condition was only a muscle spasm which was unlikely to leave long term residuals. In addition, the examiner noted the Veteran’s separation examination was negative for back pain. A November 2011 VA medical record shows the Veteran reported generalized joint pain including low back pain that had been present for months. An August 2016 VA medical record shows the Veteran was referred to the pain clinic due to complaints of low back pain which he reported had been present for many years due to an injury sustained during active duty service. The Veteran denied any recent injury, trauma or falls. See VA Medical Records Received June 2020. At an October 2016 Board hearing, the Veteran testified that the only time he ever hurt his back was during active duty service while loading trucks and loading heavy equipment. Following a May 2017 Board Remand, an VA examination was obtained in October 2017. The examiner noted a diagnosis for DDD with 2002 listed as the date of diagnosis. The examiner also noted that the Veteran reported his low back condition was due to his MOS as a mechanic. In this regard, the Veteran was noted to have reported performing maintenance work on vehicles and that he would move and transfer cases and motors. In addition, it was noted that the Veteran reported straining his lower back while replacing a transmission. The examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s lumbar spine disability was etiologically related to service. In support of this opinion, the examiner noted that the diagnosed DDD had a clear and specific etiology and diagnosis and, therefore, was less likely as not related to an environmental exposure event during service in Southwest Asia. The examiner also noted that the record showed the Veteran was seen in 1987 for acute low back pain. However, the 1987 complaint was found self-limiting and not indicative of a chronic condition. In support of this finding, the examiner noted that the remaining STRs, including examination reports, were negative for complaints or treatment of a low back condition. Although the examiner stated that she took into account the Veteran’s reports of MOS as a truck mechanic and lay statements regarding hurting his lower back during his deployment between 1990-1991, the examiner also noted that the Veteran had a post-service occupation operating and repairing industrial cranes for many years following separation from service and that he was diagnosed with DDD in 2002. Based on the above, the examiner found the current DDD diagnosis “less likely as not” due to or incurred during military service. In a February 2018 Brief, the representative noted lay statements provided by the Veteran asserting that he sought treatment for a low back condition in June 1987, and asserted that he reaggravated the condition while replacing a transmission during active duty service. A September 2019 VA medical record shows the Veteran was seen related to complaints of low back pain. The Veteran reported a history of lower back pain for many years since active duty service. The physician noted limited lumbar flexion and tenderness over the spinous processes and at paraspinal musculature. A March 2019 MRI study was noted to reveal lumbosacral intervertebral DDD, facet arthropathy and bilateral lower extremity radiculitis at L5-S1. See VA Medical Records Received June 2020. After a review of the evidence of record, the Board find that entitlement to service connection for lumbar spine disability is not warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, VA examination reports reveal a diagnosis for lumbar spine DDD. Accordingly, the remaining question is whether the Veteran’s lumbar spine disability is otherwise related to service. Initially, the Board notes that the Veteran served in the Southwest Asia theater of operations from October 1990 to June 1991, and, therefore, has the requisite service under 38 C.F.R. § 3.317. However, as noted above, the Veteran’s complaints of lower back pain have been attributed to a known diagnosis of DDD. As such, there is no basis for a claim that the diagnosed lumbar spine disability is due to an undiagnosed illness and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. With regard to direct service connection, the Board finds the cumulative VA examination reports the most probative evidence of record. The July 2011 and October 2017 VA examiners determined that the Veteran’s in-service complaint of lower back pain in June 1987 was self-limiting, and not indicative of a chronic back disability. In support of these conclusions, the examiners noted in-service complaints of back pain, the Veteran’s MOS as well as his lay statements of a chronic back condition since service. However, the examiners noted subsequent STRs and in-service examination reports showing no complaints of back pain. Additionally, the October 2017 VA examiner noted the Veteran’s post-service occupational specialty of operating and repairing industrial cranes from separation from service, and that he was first diagnosed with DDD in 2002. The Board finds the cumulative VA examination reports are supported by the evidence of record. In this regard, the Board finds most probative the service related examinations that occurred in October 1990, March 1991, June 1991, and June 1997. Each examination report shows the Veteran was found to have a normal spine, and during each subsequent examination he specifically denied having any recurrent back pain. The Board does recognize the October 1991 STR noting a chief complaint of back pain and a cold, and that the Veteran was prescribed Tylenol for muscle aches and pain. However, this record appears to show complaints of a backache related to a viral condition. No back condition was noted or diagnosed, and the record does not reflect that the Veteran reported having sustained a back injury. Importantly, a subsequent May 1996 STR shows the Veteran complained of chronic joint pain, but only in regard to his shoulders, elbows and knees. He did not report any chronic back pain, and he denied any recurrent back pain during his June 1997 retention examination. Moreover, a March 1999 VA medical record shows the Veteran provided a past medical history including hypertension, hypercholesterol, tobacco use and arthritis. With regard to arthritis, he only reported this condition with regard to his knees. It stands to reason that had the Veteran had chronic low back pain that began during service, he would have reported such during his service related examinations reports or while he reported his past medical history when receiving subsequent medical treatment. The Board recognizes the Veteran’s lay statements of a chronic back condition that began during service, and which continued since separation from service. However, for reasons cited above, the Board finds the Veteran an unreliable historian as such statements are directly contradicted by the medical evidence of record. Accordingly, any such lay statements are insufficient and of little probative value. Lastly, the Board recognizes the February 2018 Brief in which the representative asserted that the examiner did not explain the probability of how the Veteran “may have come about the degenerative changes in the thoracolumbar region when evidence demonstrates active duty service was his lone exposure to create such a condition.” The Board disagrees. Specifically, the October 2017 VA examination report shows the examiner specifically noted the Veteran’s extensive post-service occupation operating and repairing industrial cranes in relation to the 2002 diagnosis for DDD. Accordingly, the Board finds the representative’s assertion without merit. Thus, the Board finds that the second and third Shedden requirements have not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for lumbar spine disability. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.