Citation Nr: 21023843 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-19 453 DATE: April 21, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established or is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to November 1965. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an October 2010 rating decision. A hearing was held by the undersigned Veterans’ Law Judge in February 2018; a transcript is of record. This claim has a long procedural history including Board remands in June 2018 and November 2019. Most recently, the Veteran’s claims were remanded by the Board in a December 2020 decision. The Board finds that the RO has substantially complied with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a low back disability The Veteran contends that his current low back disability, including degenerative disc disease and disc herniation, is the result of the residuals of an injury incurred in service in 1965. The Veteran further contends that he has been unable to sleep flat on his back since the time of his injuries. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of thoracolumbar degenerative disc disease with moderate mechanical low back pain and mild right lower extremity L-5 radiculopathy as evidenced by the August 2010 VA examination. Degenerative disc disease, arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the Veteran’s current disability of degenerative disc disease was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Board acknowledges that the Veteran received treatment during service in early September 1965 for an injury after jumping off a diving board. The Veteran reported a second injury in late September 1965 when a cockpit canopy fell on the Veteran. The Veteran was noted to still have pain in the upper lumbar region and a probable muscle spasm. At the Veteran’s separation examination in November 1965, the Veteran continued to complain of some low back pain but reported it was considerably improved. The report noted no anatomical pattern found on neurologic examination. The report also questioned the possibility of a partially herniated disc but indicated that there were no signs of disc hernia present. An orthopedist opined that there was no evidence of residual orthopedic disability as of November 1965. Private treatment records show the Veteran did not seek treatment for low back pain until 1999, decades after his separation from service and decades outside of the applicable presumptive period. In March 1999, the Veteran reported decreased pain in the low back with chiropractic treatment. A December 2000 x-ray showed very mild rotoscoliosis, well preserved bony architecture except for degenerative changes, narrowing of the intervertebral discs at L2-3, L3-4 with mild anterior traction spurs, and no evidence of translation on dynamic flexion-extension. At that time, the Veteran reported the problem had been chronic and progressing over the past three years. In August 2002, the Veteran reported lower back pain radiating down his right leg that had bothered him for six weeks after getting out of a truck. An MRI from August 2002 indicated L4-5 right-sided disc herniation with disc material extending below the disc space probably compromising the proximal right L5 nerve root. Treatment notes indicated that the Veteran’s disc herniation was non-surgical. The Board also notes that in the Veteran’s application for Social Security Disability Insurance, he reported that his back was injured in June 2002. The Veteran was afforded a VA examination in August 2010. The examiner opined that based on Veteran’s history, review of his medical records and his examination; the Veteran’s lumbar disc disease with mechanical low back pain and right lower extremity radiculopathy is not caused by or a result of an injury pattern or activity while in the service but most likely a normal expected aging outcome. The examiner further indicated that the Veteran’s medical record was silent for treatment from the time of discharge. The examiner indicated that lumbar disc disease was an expected aging outcome. The Board has previously found this examination inadequate for failure to consider an “old” herniated disc at L3-4 and the Veteran’s newly submitted SSA records. At the February 2018 hearing, the Veteran reported that he has been unable to sleep flat on his back on a bed. The Veteran also testified at the hearing that no doctor had connected his current disability to his injury in service. In July 2019, the Veteran was afforded a second VA examination. The examiner opined that the Veteran’s claimed low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted the November 1964 (1965) orthopedic assessment indicated no residual orthopedic disability. The examiner also indicated that there is a lack of sufficient evidence of chronicity and continuous treatment and care between 1964 and 2000. The Board previously deemed this opinion inadequate as it did not consider the 2000 MRI noting an old/indeterminate disc herniation. The Veteran was afforded a third VA examination in January 2020. The examiner used the incorrect standard in their opinion that they were “unable to confirm the Veteran’s current back condition was incurred during service without resorting to mere speculation.” The Board also found this opinion to be inadequate. Most recently, a VA examiner reviewed the Veteran’s claims file and provided an addendum opinion in January 2021. The examiner opined that the Veteran’s low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As rationale, the examiner noted that there was no evidence that the disc herniation noted in the 2000 MRI occurred in service. The examiner noted that while absence of records does not rule out a possible chronic condition, the records reflect acute injuries occurring in 2000 and 2002. The examiner further explained that it was highly unlikely that the Veteran could have endured a 35-year gap in treatment for a herniated disc. Thus, the examiner concluded that it is less likely than not that the Veteran’s degenerative disc disease, herniations, laminectomy, and right femoral radiculopathy are due to or incurred in events in service, including the episode of back pain, which was fully evaluated and not noted to have significant orthopedic residuals. While the Veteran is competent to report having experienced symptoms of being unable to sleep flat on his back since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis or degenerative disc disease as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are/were instead attributable to an intercurrent cause—either the general aging process or the injury that occurred in 2000 or 2002. The January 2021 VA examiner determined that the symptoms were due to aging or the acute injury reported to his physicians, as it was highly unlikely that the Veteran could have had a herniated disc for 35 years without any treatment. Further, private treatment records attributed the symptoms to the incident of stepping out of a truck. The Board notes that the Veteran’s own reports to treatment providers indicated that there was an acute injury and manifestation of low back pain that occurred in the early 2000s, decades after his military service. Cucuras v. Sec’y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder’s decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that “[m]edical records, in general, warrant consideration as trustworthy evidence, and that “oral testimony in conflict with contemporaneous documentary evidence deserves little weight”); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Service connection for degenerative disc disease may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s degenerative disc disease and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The January 2021 VA examiner opined that the Veteran’s low back disability is not at least as likely as not related to an in-service injury, event, or disease, including the injuries reported in 1965. The rationale was that the injury was acute and resolved without any orthopedic residuals. While the Veteran believes his current low back disability is related to an in-service injury, event, or disease, including the 1965 incident with the cockpit falling on his back, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the Veteran’s claim for service connection, the benefit of the doubt doctrine does not apply. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.