Citation Nr: 21023351 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-13 927 DATE: April 20, 2021 ORDER Entitlement to service connection for back disability, to include as secondary to service-connected left ankle tendinitis, is denied. Entitlement to service connection for right elbow disability is denied. FINDINGS OF FACT 1. The Veteran’s back disability did not onset during service, is not otherwise related to an in-service event, injury or disease, and is not caused or aggravated by a service-connected disability. 2. The Veteran’s right elbow disability did not onset during service and is not otherwise related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for right elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from September 1994 to November 2002. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision of a Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned Veterans Law Judge in November 2020. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. Back disability The Veteran contends that his current back disability is due to his service. Notably, during the November 2020 hearing, the Veteran testified that he felt a pull or pop in his back during a 16-mile forced march with a fighting load of gear. The Veteran has a current back disability. For example, at his March 2017 VA examination he was diagnosed with lumbosacral strain. Thus, the remaining question is whether the current back disability is related to service. Service treatment records show one complaint of back pain in September 1996, which was diagnosed as thoracolumbar strain of the L1 to L5 area. However, during the August 2002 separation examination, evaluation of the spine was normal. In a corresponding report of medical history, the Veteran specifically denied having had recurrent back pain, back problems, and swollen or painful joints. If back pain was present during service, the Board would expect the Veteran would have responded “yes” when asked these questions at separation because a reasonable person would have interpreted the questions to include symptoms of back pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having back pain. A September 2002 VA General Medical Examination did not reveal any complaints or diagnoses related to a back disability. A back disability is not shown by medical evidence until approximately 2017, many years after the Veteran’s separation from service. The Veteran presented for a VA examination in March 2017, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the low back disability is less likely than not incurred in or caused by service. In support of this conclusion, the examiner explained that although the Veteran reported and was treated for low back pain in September 1996, he reported “no” on his separation report of medical history, and that the medical evidence does not suggest that the Veteran had chronic back pain for over 21 years. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, the earliest evidence of the Veteran seeking treatment for his back after service was in 2017, when he sought care for a post-service back injury. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that the 2017 post-service back injury was an aggravation of a service-related disability. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. The Board acknowledges the Veteran and his representative’s argument that the March 2017 VA examination gave an “at least as likely as not” opinion rather than a “less likely than not” opinion. The stated opinion was that the lower back condition was “at less as likely as not (50 percent or lesser probability)” related to service. The Board agrees that this wording in isolation is confusing and could be read as in favor of the claim. However, when reading the report as a whole, it is clear that the examiner is offering an opinion adverse to the claim. In this regard, the provided rationale explains facts that make is less likely than not that the current back disability is related to service and ultimately concludes that “a nexus cannot be made at this time.” The Board is the ultimate fact finder and as to this medical opinion finds that the examiner offered an opinion that it is less likely than not that the Veteran’s current back disability is related to service. The same holds true as to the March 2017 opinion regarding the right elbow disability discussed below. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied having had recurrent back pain, back problems, and swollen or painful joints. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Board also notes that the Veteran testified that he has an unsteady gait or limp. However, he was unsure if the gait was altered because of his back disability, his service-connected left ankle disability, or both. When asked by his representative, he affirmed that he thought they were all interconnected. The undersigned then explained that evidence suggesting the left ankle disability caused the back disability or an altered gait that worsened the back disability would be helpful to the claim. No such evidence was submitted or is of record. As the competent evidence does not suggest that the service-connected left ankle disability caused or aggravated a back disability, to include as a result of an altered gait, no medical opinion as to this theory of entitlement is necessary and service connection on a secondary basis must be denied. 38 C.F.R. § 3.310. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. 2. Right elbow disability The Veteran contends that he has a right elbow disability due to service. Notably, he testified during the November 2020 hearing that he felt a popping sensation in his right elbow during physical training, and then a few months later felt the same popping sensation and tingling sensation from the shoulder down to his fingertips when he was playing softball during service. The Veteran has a current right elbow disability. For example, at his March 2017 VA examination he was diagnosed with right elbow strain. Thus, the remaining question is whether the current right elbow disability is related to service. Service treatment records show no complaints, diagnosis, or treatment related to a right elbow disability. As the Veteran reported other ailments during service, and elbow problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his right elbow during service the Board would expect that he would have reported these problems to medical professionals. During the August 2002 separation examination, evaluation of the upper extremities was normal as was neurological evaluation. In a corresponding report of medical history, the Veteran specifically denied having had a painful elbow, swollen or painful joints, numbness, and tingling. If right elbow problems, to specifically include pain or tingling, were present during service, the Board would expect the Veteran would have responded “yes” when asked these questions at separation because a reasonable person would have interpreted the questions to include such symptoms. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having had symptoms referrable to the elbow. A September 2002 VA General Medical Examination did not reveal any complaints or diagnoses related to a right elbow disability. A right elbow disability is not shown by medical evidence until approximately 2017, many years after the Veteran’s separation from service. The Veteran presented for a VA examination in March 2017, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the Veteran’s right elbow disability is less likely than not incurred in or caused by service. In support of this conclusion, the examiner explained that the service treatment records do not suggest that the Veteran had a right elbow injury while in service, and that nexus could not be established. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, service treatment records show no complaints referrable to the right elbow at any time during service despite numerous periodic reports of medical history forms on file. At separation, the Veteran specifically denied having had a painful elbow, swollen or painful joints, numbness, and tingling. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his right elbow disability is due to his service. Again, as a lay person the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied having had a painful elbow, swollen or painful joints, numbness, and tingling. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, Associate 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.