Citation Nr: 21023556 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-53 454A DATE: April 21, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s diagnosed low back disability began during his active service and is shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5103, 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 September 1988 to October 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in June 2020 and December 2020, when it was remanded for additional development. 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. § 1131; 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, 1137; 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). Entitlement to service connection for a low back disability is granted. During the June 2019 hearing, the Veteran testified that he sustained two low back injuries during service and that he has continually experienced lower back pain since the in-service incidents. Specifically, the Veteran reported that he initially twisted his back while working on a transmission in the motor pool. He further stated that the second injury occurred after he turned around too quickly while running in formation. The Veteran testified that he sought treatment for both injuries but reported that the doctors he saw during service did not take action to investigate the underlying cause of his back pain, despite his complaints. The Veteran has also reported that the activities he performed during service often caused sharp, shooting pains in his back. In addition, the Veteran testified that he sustained a work-related low back injury in 2012 but reported that the post-service injury occurred after his back had already declined due to his in-service injuries. In this regard, the Veteran testified that Dr. T. C. Adderley, the physician who evaluated his post-service low back injury, did not note the Veteran’s initial in-service injuries in her evaluation report. The Veteran further stated that Dr. Adderley died before he could contact her to request that the treatment records be amended to reflect the initial injuries. See June 2019 Hearing Transcript, pages 2-7; December 2015 Correspondence. In support of his claim, the Veteran submitted multiple lay statements from family members, friends and coworkers, dated in November 2015. The statements indicate that the Veteran began complaining of chronic low back pain following his discharge from active duty service and that he has continued to experience progressive lower back pain since service. See December 2015 Buddy/Lay Statements. A review of the service treatment records (STRs) shows a May 1988 enlistment report of medical examination that notes the Veteran’s spine and other musculoskeletal system to be normal. In January 1991, the Veteran reported that he had been experiencing lower back pain for approximately one month. The assessment included right sacroiliac tenderness (mechanical lower back pain). In April 1992, the Veteran reported lower back pain and stated that he had trouble bending over and walking for too long but denied trauma. On examination, the Veteran endorsed pain with flexion between 30 and 40 degrees but denied pain with flexion over 40 degrees and with extension, and an x-ray of the Veteran’s lumbar spine was normal. The assessment was mechanical lower back pain, and the examiner referred the Veteran for a physical therapy consultation. Thereafter, a September 1992 emergency department form shows that the Veteran reported musculoskeletal pain to his upper back following a motor vehicle accident. Lastly, in May 1995, the Veteran reported that he pulled a muscle on his left side and began to experience increased upper back pain while running. On examination, the examiner noted a muscle spasm and decreased range of motion. The assessment was acute trapezius strain. The Veteran’s June 1996 separation report of medical examination was normal, and the Veteran denied recurrent back pain on the corresponding report of medical history. See February 2014 STR – Medical. The Veteran initially underwent a VA joints examination in February 2001. During the examination, the Veteran reported that he was under heavy physical training during service but denied any significant injuries. He further stated that he had been experiencing progressively worsening back pain since 1994. An x-ray obtained in conjunction with the examination was normal, and the examiner diagnosed the Veteran with low back pain of unknown etiology. Following the examination, the examiner found that it was likely that the Veteran may have discogenic pain and opined that it was likely that the Veteran’s active duty service may correlate to the Veteran’s low back pain. See February 2001 VA examination. A private treatment record shows that a private physician, Dr. Adderley, evaluated the Veteran in November 2012, after he sustained a post-service work-related back injury. Dr. Adderley found that the Veteran sustained two back injuries while he was performing routine duties as a mail handler in July and November 2012. After performing an examination, Dr. Adderley diagnosed the Veteran with lumbar sprain, and referred him to a physical therapist. A December 2012 MRI, obtained in conjunction with the November 2012 evaluation, revealed an annulus fibrosus and focal protrusion versus herniation of the L4-L5 intervertebral disc proximal to and at the level of the left L4-L5 neural foramina, internal derangement and bulging of the L3-L4 intervertebral disc, bulging of the L2-L3 intervertebral disc, lumbar facet arthrosis without critical osseous lateral recess or neutral foraminal stenosis, straightening of the lumbar lordosis indicating a pattern of muscle spasm, and L4-L5 facet tropism, asymmetry of orientation of the facet joints. In addition, private treatment records, dated between November 2012 and February 2013, show that the Veteran’s low back disability was re-evaluated multiple times by various private physicians. In each evaluation, the examining physician found that the Veteran’s lumbar strain was caused by his post-service, work-related injuries. See March 2013 Medical Treatment Record Non-Government Facility. The Veteran was afforded a VA examination for back conditions in July 2013. The examiner diagnosed the Veteran with lumbar spine sprain. During the examination, the Veteran reported that he injured his back while working as a diesel mechanic in March 1992 and subsequently received treatment for mechanical back pain. He also acknowledged that he had been treated for a work related injury in 2012. The Veteran further reported that he experienced daily low back pain with a burning sensation that traveled laterally to his legs. On examination, the examiner noted that the Veteran had moderate left lower extremity sciatic radiculopathy, and a lumbar spine x-ray, obtained in connection with the examination, revealed questionable mild symmetric sacroiliac joint sclerosis. After performing an examination and reviewing the Veteran’s STRs, the examiner opined that it was less likely than not that the Veteran’s current back disability was incurred in or caused by the claimed in-service injury, event, or illness. To this end, the examiner acknowledged that the Veteran was treated for a back injury in service in 1992. However, the examiner stated that the STRs did not show continuous medical visits for back pain in service and emphasized that the Veteran’s separation examination was negative for back pain. In addition, the VA examiner noted that the Veteran’s post-service private medical records showed that he sustained an on the job injury to his back in July 2012. The Veteran was also afforded a VA examination for back conditions in September 2016. The examiner noted that the Veteran had been diagnosed with questionable mild sacroiliac joint sclerosis of recent onset. The examiner acknowledged that the Veteran sustained multiple low back injuries related to his military occupational specialty (MOS) as a mechanic, to include special injuries in April 1992 that led the Veteran to be placed on light duty for six weeks. However, the examiner noted that the Veteran served as a mechanic in the Army National Guard for four years after he was discharged from active duty service with no limited duty. In addition, the examiner noted that the Veteran sustained a workers’ compensation injury in or around 2012 and underwent an MRI, which revealed old disc changes and a new torn disc. During the examination, the Veteran endorsed flare-ups and reported that he had a chronic belt line ache with right lateral thigh radiation. The examiner further noted that the Veteran had radiculopathy and intervertebral disc syndrome. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran’s low back disability was incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the examiner acknowledged the statements from the Veteran’s friends and family, but found the objective evidence, which showed that the Veteran experienced minimal low back problems during service, to be more relevant. To this end, the examiner noted that the Veteran did not have any limitations while he was serving on active duty or in the Army National Guard. The examiner further stated that, although the Veteran had a back-stressing MOS, the objective evidence showed that the Veteran took few medical prescriptions for his back after service and that his post-service x-rays revealed better than age typical changes. In this regard, the examiner reported that the Veteran’s 2001 x-ray, which showed the Veteran’s lumbar spine to be normal, was obtained far enough from his discharge from active duty service to reveal service-related changes, had they existed. The examiner further noted that the Veteran’s 2013 x-ray, which revealed questionable changes in the sacroiliac joint, was better than changes typically seen in individuals the Veteran’s age. See January 2018 CAPRI. In support of his claim, the Veteran submitted a private medical opinion from Dr. D. Miller, dated in February 2021. After reviewing the evidence of record and interviewing the Veteran, Dr. Miller opined that it was at least as likely as not that the Veteran’s diagnosed thoracolumbar disability was the direct result of injuries the Veteran sustained while he was serving on active duty and was subsequently permanently accelerated by his work activities at the United States Postal Service. In support of his opinion, Dr. Miller included references to articles on chronic mechanical low back syndrome that describe the etiology and clinical symptoms of the orthopedic condition. To this end, Dr. Miller noted that mechanical spine syndrome was an umbrella diagnosis that covered a multitude of abnormal pathologies and that clinical research indicated that 70 percent of chronic mechanical lumbar disorders start out as a lumbar strain or sprain. Thus, Dr. Miller found that the Veteran was not able to heal after his initial in-service lumbar spine injury because he did not receive proper rehabilitation and that the physical demands of his MOS exacerbated the disability. In this regard, Dr. Miller stated that radiographic changes to the Veteran’s spine may not have shown on his 2001 x-ray despite the amount of time that had elapsed since his initial injury. In addition, Dr. Miller found that the Veteran’s ongoing mechanical low back disability was permanently exacerbated and accelerated by his work activities at the United States Postal Service. Dr. Miller detailed the pathology of the Veteran’s disability and reviewed and included relevant articles and studies. The Veteran also submitted an opinion from Dr. Miller analyzing the rationale provided by the July 2013 and September 2016 VA examiners. See February 2021 Medical Treatment Record – Non-Government Facility. Following a review of the evidence of record and after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a low back disability is 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, the July 2013 VA examiner diagnosed the Veteran with lumbar spine sprain, and private treatment records dated in November 2012 show that the Veteran was diagnosed with lumbar strain. See January 2018 CAPRI; March 2013 Medical Treatment Record – Non-Government Facility. Accordingly, the remaining question is whether the Veteran’s diagnosed low back disability is related to service. With respect to an in-service injury or disease, the Veteran’s STRs show that he was diagnosed with right sacroiliac tenderness (mechanical lower back pain) in January 1991 and with mechanical lower back pain in April 1992. In addition, the Veteran reported musculoskeletal pain to his upper back following a motor vehicle accident in September 1992, and he was diagnosed with an acute trapezius strain after he pulled a muscle while running in May 1995. See February 2014 STR – Medical. Thus, the Board finds that the Veteran had low back pain symptoms and findings in service, and the second Shedden requirement for service connection has been satisfied. The Board notes that there are conflicting medical opinions as to whether the Veteran’s current low back disability is related to his active duty service. After a review of those opinions, the Board finds Dr. Miller’s private medical opinion, dated in February 2021, and the VA medical opinions dated in July 2013 and September 2016 to be the most probative evidence of record. To this end, the Board finds the February 2001 VA medical opinion to be inadequate as it is speculative in nature. In the February 2001 VA medical opinion, the examiner opined that it was likely that the Veteran’s active duty service may correlate to the Veteran’s low back pain. See February 2001 VA examination. In this regard, the Board notes that speculative language such as “may correlate to” does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest the possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Conversely, the Board affords the medical opinions provided by the July 2013 and September 2016 VA examiners and the February 2021 private medical opinion from Dr. Miller more probative value. To this end, the Board finds that the aforementioned opinions are based on a thorough review of the record, are supported by adequate rationale, and are consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page)   Based on the foregoing, the Board finds that there is probative medical evidence both for and against the claim. The evidence of record is at least in equipoise as to whether the Veteran’s low back disability is etiologically related to his active duty service. Thus, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, 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.