Citation Nr: 21024836 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-22 589 DATE: April 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A chronic low back disability was not manifested in service; arthritis of the low back was not manifested in the first postservice year; and, any current low back disability is not shown to be etiologically related to the Veteran’s service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1975 to May 1978, and had additional Reserve service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision which, in pertinent part, denied service connection for a low back disability. In January and September 2016, the case was remanded for a Board hearing. In December 2016, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In June 2017, December 2017, August 2019, and November 2020, the case was remanded for additional development. [The December 2017 Board decision also denied service connection for a psychiatric disability other than PTSD; that matter is no longer before the Board.] Entitlement to service connection for a low back disability is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis).  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran’s service treatment records (STRs) show that his spine was normal on February 1975 enlistment examination. A March 14, 1978 record notes a complaint of right, middle back pain which began that morning while driving. Examination found tenderness with spasm in the right paravertebral muscles from the mid scapula to upper lumbar region. The assessment was muscle spasm. He was advised to treat with heat, Robaxin, and rest for three days. Three days later, the symptoms were “basically resolved. Still small and residual stiffness.” He was returned to duty. On April 1978 service separation examination, the Veteran denied recurrent low back pain; swollen or painful joints; arthritis, rheumatism, or bursitis; and bone, joint or other deformity. His spine was normal on clinical evaluation, and chest x-ray was within normal limits. In a May 1978 statement of medical condition, the Veteran reported there has been no change in his medical condition (acknowledging he was examined more than three working days prior to separation). On June 1984 Reserve enlistment examination (6 years after separation from active duty service), the Veteran’s spine was normal on clinical evaluation. Although he reported ear trouble, eye trouble, and a 1978 right shoulder injury, he denied recurrent low back pain, swollen or painful joints, arthritis, rheumatism, or bursitis, and bone, joint or other deformity. A March 1998 clinical record (follow-up after a May 1997 motor vehicle accident (MVA)) notes complaints of neck pain. On examination, there was tenderness over the lower cervical spine; there was none over the thoracic or lumbar spine. A May 2010 treatment record notes complaints of neck, back, and left arm pain that has been present for 6 months or more. May 2010 lumbar spine x-rays showed narrowing of the L5-S1 disc space. May 2010 chest x-rays did not show spondylolisthesis; scoliosis was not noted. A subsequent May 2010 psychiatric record notes the Veteran’s report that he had “neck, shoulder and arm pain from MVA, 1998.” A July 2010 treatment record notes his report of back pain in service and neck pain related to a 1997 MVA. On September 2010 VA spine examination, the Veteran reported that he injured his back in service bending over a vehicle. He stated that is has worsened since 1978 and is “now consistent.” The examiner noted the complaint of back pain in service, the findings of a clinically normal spine on separation from service and June 1984 Reserve examinations, and his report of treatment for back pain in 1981 (records of which are unavailable). The examiner opined that the Veteran’s lumbosacral disc disease is less likely as not caused by service. She explained that disc disease was not diagnosed in service or within 12 months following separation from service. She also noted that that the Veteran’s spine was clinically normal on service separation and normal on June 1984 Reserve examination, which also “mentions NO recurrent back pain.” In a September 2010 Notice of Disagreement (NOD), the Veteran stated that the reason he did not have chronic reports of treatment for his back in service is because the injury occurred two months prior to discharge. He stated that he was “not provided with x-rays or any extensive evaluation or treatment other [than] a physical exam,” and stated that his “back condition has remained the same problem since service… and has continued since.” March 2012 chest x-rays showed mild scoliosis. March 2015 lumbar spine x-rays showed “L5 is a sacralized segment, normal anatomic variation. Minor curvature of the lumbar spine to the right.” At his December 2016 Board hearing, the Veteran testified that he injured his back in service conducting preventative maintenance on a field ambulance. He stated that he felt a sharp pain when he bent over into the engine compartment. He stated that the pain has “been chronic ever since.” He testified that his back “goes out when it wants to” and can “go out” or “get a shooting pain” without incident, such as when picking up a pencil. He testified that he sought treatment “back in the 80s” with bed rest and Flexeril, and asserted that his back disability stemmed from service. He reported postservice work including doing administrative (non-physical work) for five years and work at a gas station; he testified that his back pain would come and go, but he remembers the pain knocking him to the floor “a few years later” when working at the post office. [The Board notes he testified such occurred in in 1976, 1977, or 1978; however, he did not separate from active duty service until May 1978. Review of Social Security Administration (SSA) records revealed he reported that he worked at the USPS from 1978 to 1998, and in construction from 1998 to 2008.] He testified that he last worked about seven years prior and quit because his back condition was getting “progressively worse.” On questioning by his representative, he confirmed that his first postservice diagnosis of a back condition was in 2007, when he first filed a claim for service connection. [The instant claim was received in 2010, not 2007.] In December 2017, the Board remanded this matter for an adequate advisory medical opinion which considers the Veteran’s lay statements (as the September 2010 examination report does not reflect consideration of all of the Veteran’s lay statements, including his December 2016 Board hearing testimony). On February 2018 VA back examination, degenerative arthritis of the spine was diagnosed. [The examiner also noted that March 2015 x-rays showed minimal rightward curvature of the lumbar spine.] Following examination of the Veteran and review of his record, the examining physician opined that his current back condition was less likely than not incurred in or caused by the claimed in-service injury or event. He acknowledged the March 1978 notation of muscle spasm in service, but also noted that on April 1978 separation examination the Veteran reported “No” to recurrent back pain. He noted that a June 1984 (6 years following separation) Reserve examination was silent for back problems, and that there was no medical documentation of back problems until May 2010. In August 2019, the Board again remanded this matter for an addendum opinion which adequately addresses all of the Veteran’s lay statements. On January 2020 VA back examination (by another physician), the diagnosis was lumbar spine degenerative disc disease (DDD). Following examination of the Veteran and review of his record, the examiner opined that the Veteran’s lumbar spine DDD was less likely than not incurred or caused by his active duty service. He explained that disc degeneration and accompanying arthritis is a common development; age-related changes “are present in 40% of adults over age 35 years and in almost all individuals over age 50.” He also cited to medical literature that minor trauma does not appear to increase the risk of serious low back pain episodes or disability. [Minor back trauma was noted to include traffic accidents greater than 30 mph, falls from heights greater than three feet, and lifting injury with awkward posture, greater than 60 pounds. It does not include situations that resulted in fractures, vertebral dislocations, neurological impairment, or disc herniation.] He acknowledged the March 1978 notation of muscle spasms in service, but explained that there were “no further notes dealing with this episode after” and no indication “the [V]eteran acquired low back issues which became chronic in nature while on active duty.” In support of such finding, he cited to the service separation and June 1984 Reserve examination reports. He opined that the complaint in service was “minor self-limiting conditions involving the low back which resolved as expected of such injuries,” noting that further problems did not arise for “many years after the events in the military service. This considerable period of time after the [V]eteran left the military without a continuity of the same complaints would have severed any causal connection to the current issue.” The examiner continued: The expectation from the injury or traumatic event on the affected joint from the military service would be that of an acceleration of the wear and tear effects. Consequently, there should be advanced degenerative findings seen on the associated imaging studies. However the recent evaluation(s) do/does not demonstrate that this is the case. Rather the recent results seen actually represent the gradual progression associate with aging. Therefore these facts refute the influence associated with the in-service episode. He acknowledged the Veteran’s lay statements and stated: …their information does not give much credence to the confirmation of a causal relationship. The bulk of the medical evidence and the medical literature consensus negates or minimizes the relevance of his complaints and what actually is evident since his military departure. Accordingly, he opined that the likely etiology for such disability would be age-related changes as the Veteran was [over 50] years old at the time that the diagnosis was confirmed (explaining that such is consistent with cited medical literature). In November 2020, the Board remanded the matter for an addendum advisory medical opinion which addresses the additional diagnosis of scoliosis noted during the appeal period. In November 2020, the January 2020 examiner provided an addendum opinion. He noted that the record shows diagnoses of lumbar DDD and scoliosis, as certified by the relevant imaging studies during the appeal period. Upon re-review of the record, the examiner opined that the likely etiology of both the lumbar spine DDD and the scoliosis would be age-related changes, which he again explained is consistent with the medical literature. He opined that it is not likely that the lumbar spine DDD or scoliosis were incurred or aggravated during the Veteran’s active duty service. He explained that the imaging “findings were mild”, and indicated that if the injury in service caused or aggravated the Veteran’s back disability, the imaging “changes should have been advanced in nature.” He acknowledged the Veteran’s report that he had back pain in 1981 (three years after service) but stated that “this could be due to any number of causes unrelated to his lumbar spine condition. For there to be an assignment of his back pain due to [DDD] or scoliosis, there have to be the imaging studies required to confirm their presence. Such was not the case. Moreover, it is ve[r]y unlikely that they would have been present if such imaging studies had been performed then considering the mild findings on the most recent studies of the lumbar spine.” He again acknowledged the Veteran’s testimony of having back pain “a few years” after separation from service, back pain since service, and back pain in 2007 or 2008 which forced him to quit working, and explained that his preceding response [regarding the severity of the disease shown on imaging] considered such lay reports. Analysis It is not in dispute that the Veteran now has a low back disability. What remains to be established is whether such disability is related to an injury in service. The Veteran’s STRs contain a March 1978 notation of back pain assessed as muscle spasm. Three days later, the symptoms were “basically resolved” with “small and residual stiffness,” and he was returned to duty. On April 1978 separation from service examination, his spine was clinically normal, and he denied recurrent low back pain, swollen or painful joints, arthritis, rheumatism, or bursitis, and bone, joint or other deformity. On June 1984 Reserve enlistment examination, his spine was clinically normal, and he again denied recurrent low back pain, swollen or painful joints, arthritis, rheumatism, or bursitis, and bone, joint or other deformity. The next documented complaint of low back pain is in May 2010, more than three decades after service. As a chronic lumbar spine disability (including arthritis) was not shown to have been manifested to a compensable degree within a year following the Veteran’s separation from service, and postservice continuity is not shown, service connection for lumbar spine disability on the basis that it became manifest in service and persisted thereafter, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. The Board turns to the question of whether service connection may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Board acknowledges that lay evidence of symptoms during and after service may be competent evidence, even with a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the more recent lay accounts of record of continuous symptoms since service (or, alternatively, a “few years” after service) are inconsistent with contemporaneous clinically recorded data. For example, he denied recurrent back pain, swollen or painful joints, arthritis, rheumatism, or bursitis, and bone, joint or other deformity on April 1978 service separation examination and on June 1984 Reserve enlistment examination, six years after separation from service. Notably, he did report ear trouble, eye trouble, and a right shoulder injury. A March 1998 clinical record (follow up after a May 1997 MVA) notes complaints of neck pain, but not lumbar pain. Such evidence is probative evidence weighing against the claim of service connection as it tends to contradict the allegation of postservice continuity of related symptoms. And despite reporting treatment for back complaints in 1981, the Veteran himself has testified that he first received a diagnosis of a back disability when he filed his claim seeking service connection for such disability. In the absence of evidence of a chronic low back disability in service, manifestation of low back arthritis in the first postservice year, or credible evidence of continuity of low back complaints since service, the etiology of such a back disability first diagnosed in clinical records more than three decades after separation from service is a medical question. See Jandreau, supra. To the extent that the Veteran asserts his low back disability is related directly to service, as a layperson, he lacks the expertise to offer a competent opinion in the matter. Id. He has not submitted any competent (medical opinion or treatise) evidence in support of this claim. The preponderance of the competent (medical) evidence is against a finding that the Veteran’s current low back disability is etiologically related to his active duty service. The Board finds the January 2020 VA opinion against the claim, cumulatively with the November 2020 addendum opinion, to be the most probative evidence in this matter. The physician examined the Veteran, reviewed the entire record (including the Veteran’s lay statements), and opined that his low back disability is less likely than not related to service. His rationale cited to the factual record, including the denial of low back complaints at the time of separation and six years thereafter [while such lay reports are not medical evidence that there was no chronic back disability at separation or in the years thereafter, the negative clinical evaluations of the spine are medical evidence that supports the conclusion reached], the thirty-plus year postservice period during which there is no documentation of back complaints, supporting clinical data, such as the severity of the pathology found on imaging (mild versus advanced), and medical principles (with citation to medical studies) regarding disc degeneration and arthritis in adults and the causative effect of minor trauma on development of chronic lumbar spine disabilities. There is no competent (medical opinion) evidence of record that relates the Veteran’s current low back disability to his service; he has not submitted such opinion, or identified any existing for VA to seek on his behalf. The preponderance of the evidence is against a finding that the Veteran’s current low back disability is etiologically related to his service, to include as due to an injury therein. Therefore, the benefit of the doubt doctrine does not apply, and the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.