Citation Nr: 21023995 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-10 346 DATE: April 21, 2021 ORDER Entitlement to service connection for a lower back disorder is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s lower back disorder began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a left hip disorder began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a cervical spine disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303. 2. The criteria for service connection for a left hip disorder are not met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303. 3. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February to June 1975 and from June to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this matter for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims entitlement to service connection for back, left hip, and neck disorders. He contends that he incurred the disorders during active duty for training (ACDUTRA) in 1975. Laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The term active service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA), defined in part as duty other than full-time duty, during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). National guard service may qualify as ACDUTRA or INACDUTRA pursuant to 32 U.S.C. §§ 316, 502-05. Generally, to establish direct service connection, there must be competent, credible evidence of a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court of Appeals for Veterans Claims (Court) has expressly declined to adopt a “treating physician rule” which would afford greater weight to the opinion of a veteran’s treating physician over the opinion of a VA or other physician. See Guerrieri, supra. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and analysis. The evidence in this matter consists of lay assertions, service treatment records (STRs), private and VA treatment records, an August 2014 private medical opinion, and VA compensation examination reports dated in January 2020. This evidence establishes that the Veteran has current lower back, left hip, and neck disorders. This is demonstrated most recently in the VA reports which note diagnoses of degenerative disc and joint disease in the lumbar spine and cervical spine and referred pain in the left hip due to sacroiliitis. The evidence also indicates an injury during active service. The Veteran states that he injured his spine and left hip after jumping off the back of a two-and-a-half-ton truck during basic combat training in 1975. The Veteran stated that, while he has been unable to obtain the records, he was treated for the injury at a hospital at Ft. Leonard Wood, where he received x-rays and was put on a “no-running” profile. In conjunction, in a July 2014 statement, one of the Veteran’s fellow service members reported that he served with him in Officer Candidate School in 1976 and recalled that he complained of back and hip pain constantly. Additionally, in an August 2014 statement, the Veteran’s former spouse indicated that, while he was stationed at Fort Leonard Wood in February 1975, he informed her of back and hip problems incurred during training. Based on this evidence, the Board finds the evidence in a state of relative equipoise regarding whether the Veteran injured his back, neck, and hip during service. The evidence also indicates that he may have had a back disorder prior to service. In Reports of Medical History completed in January 1975, February 1977, and April 1980, the Veteran reported that he had received treatment in 1972 for inflamed or torn back muscles. Specifically, he indicated that he was hospitalized for a sprained back, which occurred without injury to the spine, and was placed in traction. In February 1977, it was noted that the Veteran had an acute low back sprain in 1972 that resolved without reoccurrence or sequelae. In any event, the first and second Shedden elements are established here. The preponderance of the evidence establishes, however, that the current disorders are not related to the in-service injury. Notwithstanding the notations in reports of medical history during service of a 1972 back injury, the STRs and reports of medical examination and history dated between 1975 and 1980 are negative for a back, neck, or hip problem during service. In fact, reports of medical examination dated in 1977 and 1980 found the back, neck, and hip normal upon examination. Further, the record contains no medical evidence addressing a back, neck, or hip problem in the years after service. The earliest evidence of record addressing either problem is found in private medical evidence dated in the 2000’s, over 20 years after the period of active service in 1977. Thus, the medical evidence indicates that for many years following service the Veteran did not have a chronic back, neck, or hip disorder. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Moreover, a preponderance of the medical evidence addressing the issue of medical nexus counters the Veteran’s claims. Certain evidence supports the Veteran’s claims. In an August 2014 statement, the Veteran’s treating physician, Dr. B.G., stated that he had been treating the Veteran for long-standing low back and hip disability, and such symptoms were likely related, at least in part, to his injuries sustained during military service when he was accidently pushed out of an Army truck onto his left leg. In this regard, Dr. B.G. noted that the Veteran had reported pain in his lower back and hip since such time. This opinion is of limited probative value, however, because Dr. B.G. did not provide a sufficient rationale for his opinion. The physician did not discuss the evidence dated in STRs indicating an absence of such problems and did not discuss the absence of evidence indicating such problems following service. See Prejean, supra. By contrast the opinion in the January 2020 VA report is probative. This examiner noted the Veteran’s statement that he fell off an army truck and landed on his back and was not able to walk due to severe sharp, stabbing, and numbness pain. Due to the accident, he was not able to be active at all and was provided physical therapy and motrin. The examiner opined that the lumbar, cervical, and hip disorder were less likely than not incurred in or caused by the claimed in-service injury. The examiner supported the statement by stating that, assuming an injury did occur in service and was not evaluated, physical examinations following the claimed injury were negative for back, neck, and hip problems. In addition, the examiner cited the absence of documentation of any ongoing treatment for a such a disorder from separation from service until over 20 years later. In comparing the probative value of the August 2014 statement from Dr. B.G. and the January 2020 VA report, the Board finds that the evidence is largely weighed against a finding that the lower back arthritis is related to his active service. The Board finds the statement from Dr. B.G. unpersuasive as the opinion provided by Dr. B.G. is not supported by rationale. Conversely, the VA examiner’s opinion is entitled to significant probative weight as it was based on a thorough examination of the Veteran, on consideration of the Veteran’s self-reports, and on a review of the claims file. Moreover, the opinion is supported by an explanation as to why the neck, back, and hip disorder are likely unrelated to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (instructing that for medical evidence to be given weight, it must be based on sufficient facts or data, be the product of reliable principles and methods, and be the result of principles and methods reliably applied to the facts). Consideration has been given to the Veteran’s assertion that his back, neck, and hip problems are a result of the in-service accident. He is competent to report symptoms of pain as well as injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he lacks the medical training or qualifications to provide a medical opinion as to the etiology of his problems. Id. In short, his statements regarding etiology are outweighed by the medical findings in the January 2020 VA report. Lastly, the Board has considered whether active service in 1975 or in 1977 aggravated a pre-service back problem. As noted earlier, reports of medical history note back trouble in 1972. But, as already noted, the STRs and reports of medical examination and history dated in 1977 and 1980 are negative for a back disorder, and the record is silent for such until the mid-2000s. Thus, no evidence indicates a worsening of a back disorder during the periods of ACDUTRA in 1975 and 1977. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In sum, the evidence preponderates against the claims of entitlement to service connection. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.