Citation Nr: 21025081 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-32 883 DATE: April 27, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The probative medical evidence of record does not show that the Veteran’s low back disability was the result of military service, to include any in-service motor vehicle accident or lifting injuries. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference hearing. A transcript of the hearing is associated with the record. In November 2014, September 2016, and September 2017 the Board remanded the above-referenced claim for additional evidentiary development. The issue has since been returned to the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). However, the theory of continuity of symptomatology to establish service connection, can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he suffers from a current low back disability that is a result of military service. In particular, the Veteran has attributed his disability to an in-service motor vehicle accident and lifting injuries after lifting heavy artillery rounds. A review of the Veteran’s service treatment records shows that he was involved in a motor vehicle accident in December 1969, during which he struck his head on the steering wheel and resulted in him losing consciousness and suffering a concussion and lacerations on his face. However, the Veteran’s service treatment records do not reflect any complaints or treatment for problems with his back, including at service separation. At that time, the Veteran denied ever having any recurrent back pain, and clinical evaluation of his spine revealed no abnormalities. For his part, the Veteran now asserts he did have problems with his back during service, but that he self-treated with over-the-counter medication, ice, heating pads, and rest because he did not want to go to sick call and be considered a malingerer. A review of the Veteran’s post-service outpatient treatment records reveals that a back disability was first referenced in 2004 when mild spondylosis of the thoracolumbar spine was seen on an August 2004 CT scan of the chest. The scan was conducted in the context of investigating a respiratory disability. No back complaints are seen for nearly another decade, and there is no indication this finding was associated with service. The Veteran was afforded a VA spine examination in June 2015, during which he reported the onset of his back problems during service after lifting artillery rounds and following his motor vehicle accident. He also reported that he has been treated for back problems off-and-on since service. X-rays revealed degenerative disc disease of the back; and the VA examiner rendered a diagnosis of intervertebral disc syndrome. This examiner rendered an opinion that the disability was less likely than not directly or proximately caused by the Veteran’s in-service motor vehicle accident, as the Veteran’s service treatment records were silent for a back condition, his service separation medical examination revealed a normal spine exam, and the Veteran denied having recurrent back pain at that time. The examiner also referenced as support for her opinion the Veteran’s post-service treatment records, which she stated were negative for a back condition until 2012, 42 years after service. The Veteran was afforded a new VA examination in relation to his back disorder claim in November 2016. The doctor who examined the Veteran stated that it was less likely as not that the Veteran’s current back disability was incurred in or is otherwise related to his military service, including the motor vehicle accident that occurred during service. In doing so, he referred to the Veteran’s service treatment records as being silent regarding a back condition; and the Veteran’s service separation examination and report of medical history reflecting that the Veteran was found to have a normal spine exam at that time and that he denied experiencing “recurrent back pain.” Additionally, the doctor stated that post-service treatment records supported his opinion in that they were “silent regarding a back complaint or condition until 2012, a lapse of 42 years after separation from service.” Based upon the foregoing, the doctor indicated that it would be resorting to mere speculation to establish a relationship between the Veteran’s current back condition and his “complaints in service” due to the lack of treatment records from the time of separation from service until now. As for the impact of the Veteran’s motor vehicle accident, the doctor stated that the Veteran’s lumbar spine complaint was “a new condition” and not related to service; and supported his conclusion by stating that the Veteran’s service treatment records revealed that his separation exam reflected a normal spine examination and the Veteran denied experiencing recurrent back pain at that time. He also referred to post-service treatment records that were silent regarding a back complaint or condition until 2012, a lapse of 42 years after separation from service. In March 2019, the Veteran was provided with an additional VA examination. At this time, the examiner replicated the same opinion from the prior examinations, namely that the Veteran’s the disability was less likely than not directly or proximately caused by the Veteran’s in-service motor vehicle accident, as the Veteran’s service treatment records were silent for a back condition, his service separation medical examination revealed a normal spine exam, and the Veteran denied having recurrent back pain at that time. The examiner also referenced as support for the opinion that the Veteran’s post-service treatment records, which it was stated were negative for back complaints until 2012, 42 years after service. Here, the medical evidence of record has not shown any probative opinions that the Veteran’s low back disability is the result of military service, to include any injuries in service. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran’s low back disability was not associated with military service to specifically include consideration of the motor vehicle accident and lifting injuries. These opinions were based on an accurate history, and explained the reasons for the conclusion with reference to the facts of the case. Taken together, the Board finds the opinions probative. The only statements asserting a relationship to military service are the Veteran’s own lay statements. He, as a lay person, is competent to report an observable symptom. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in this case, the question of whether the Veteran’s low back disability is related to his military service injuries is a complex medical question, not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting that lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 439 (1995) (finding that a lay person is competent to testify to pain and visible flatness of his feet). Indeed, appropriate expertise is required to determine whether the Veteran’s low back disability is the result service. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2019) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his low back disability, as this is not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, in this case, the Board assigns greater weight to the competent medical evidence, specifically the VA examiner reports and conclusions, than to the Veteran’s lay statements. Additionally, as to the Veteran’s lay statements regarding not seeking treatment in military service as well as seeking non-documented treatment earlier than 2012 post-service, the Board finds that the Veteran’s statements are not credible. For instance, in service, while the Veteran has asserted that he did not seek treatment due to fear of appearing to be a malingerer, his service treatment records show he did seek treatment (for a sore throat). Given that he did seek treatment for medical complaints during service, his contention that he did not do so for appearances sake, does not appear true. Further impugning his credibility is the disconnect between what the Veteran indicated on his Report of Medical History at service separation, where he denied ever having recurrent back pain, and his present contention he had this symptom at that time but did not report it to avoid appearing to be malingering. If what he states now is the case, he necessarily falsified the service document, which he had certified was true to the best of his knowledge. In addition, while the Veteran claims that he had visited providers for treatment of his back since leaving military service, a review of the Veteran’s post-service treatment records, which date from 2000, do reflect any relevant complaints until years after that. Accordingly, the Board also finds that these statements of ongoing treatment since service are not credible. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for a low back disability and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. DODD BELOW The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified before the undersigned Veterans Law Judge in a Video Conference hearing. A transcript of the hearing is associated with the record. In November 2014, September 2016, and September 2017 the Board remanded the above-referenced claim for additional evidentiary development. The issue has since been returned to the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). However, the theory of continuity of symptomatology to establish service connection, can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he suffers from a current low back disability that is a result of military service. In particular, the Veteran has attributed his disability to an in-service motor vehicle accident and lifting injuries after lifting heavy artillery rounds. A review of the Veteran’s service treatment records shows that he was involved in a motor vehicle accident in December 1969, during which he struck his head on the steering wheel and resulted in him losing consciousness and suffering a concussion and lacerations on his face. However, the Veteran’s service treatment records did not reflect any complaints or treatment for problems with his back, including at service exit. The Veteran had asserted that he had problems with his back during service, but that he self-treated with over-the-counter medication, ice, heating pads, and rest because he did not want to go to sick call and be considered a malingerer. A review of the Veteran’s post-service outpatient treatment records reveals that a back disability was first referenced in 2004 when mild spondylosis of the thoracolumbar spine was seen on an August 2004 CT scan of the chest. The scan was conducted in the context of investigating a respiratory disability. No back complaints are seen for nearly another decade, and there is no indication this finding was associated with service. The Veteran was afforded a VA spine examination in June 2015, during which he reported the onset of his back problems during service after lifting artillery rounds and following his motor vehicle accident. He also reported that he has been treated for back problems off-and-on since service; that X-rays revealed degenerative disc disease of the back; and the VA examiner rendered a diagnosis of intervertebral disc syndrome. As for the etiology of the Veteran's back disability, the June 2015 VA examiner opined that the disability was less likely than not directly or proximately caused by the Veteran's in-service motor vehicle accident, as the Veteran's service treatment records were silent for a back condition, his service separation medical examination revealed a normal spine exam, and the Veteran denied having recurrent back pain at that time. The examiner also referenced as support for her opinion the Veteran's post-service treatment records, which she stated were negative for a back condition until 2012, 42 years after service. The Veteran was afforded a new VA examination in relation to his back disorder claim in November 2016. The doctor who examined the Veteran stated that it was less likely as not that the Veteran's current back disability was incurred in or is otherwise related to his military service, including the motor vehicle accident that occurred during service. In doing so, he referred to the Veteran's service treatment records as being silent regarding a back condition; and the Veteran's service separation examination and report of medical history reflecting that the Veteran was found to have a normal spine exam at that time and that he denied experiencing "recurrent back pain." Additionally, the doctor stated that post-service treatment records supported his opinion in that they were "silent regarding a back complaint or condition until 2012, a lapse of 42 years after separation from service." Based upon the foregoing, the doctor indicated that it would be resorting to mere speculation to establish a relationship between the Veteran's current back condition and his "complaints in service" due to the lack of treatment records from the time of separation from service until now. As for the impact of the Veteran's motor vehicle accident, the doctor stated that the Veteran's lumbar spine complaint was "a new condition" and not related to service; and supported his conclusion by stating that the Veteran's service treatment records revealed that his separation exam reflected a normal spine examination and the Veteran denied experiencing recurrent back pain at that time. He also referred to post-service treatment records that were "silent regarding a back complaint or condition until 2012, a lapse of 42 years after separation from service." In March 2019, the Veteran was provided with an additional VA examination. However, the examiner appears to have merely replicated the same opinion from the prior examinations, namely that the Veteran’s the disability was less likely than not directly or proximately caused by the Veteran's in-service motor vehicle accident, as the Veteran's service treatment records were silent for a back condition, his service separation medical examination revealed a normal spine exam, and the Veteran denied having recurrent back pain at that time. The examiner also referenced as support for the opinion that the Veteran's post-service treatment records, which it was stated were negative for a back condition until 2012, 42 years after service. Here, the medical evidence of record has not shown any probative opinions that the Veteran's low back disability is the result of military service, to include any injuries in such service. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran's low back disability was not associated with military service to specifically include consideration of the motor vehicle accident and lifting injuries. These opinions found that, upon a review of the medical evidence of record, the Veteran’s current back disability did not actually begin until 2012 at the earliest, as the 2004 notation was merely an incidental finding, and that such a long delay from initial claimed injury to the diagnosis of the current disorder was indicative of an intercurrent cause, independent of the Veteran’s military service. The only statements asserting a relationship to military service are the Veteran's own lay statements. He, as a lay person, is competent to report an observable symptom. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in this case, the question of whether the Veteran's low back disability is related to his military service injuries is a complex medical question, not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting that lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 439 (1995) (finding that a lay person is competent to testify to pain and visible flatness of his feet). Indeed, appropriate expertise is required to determine whether the Veteran's low back disability is the result of Agent Orange exposure. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2019) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his low back disability, as this is not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, in this case, the Board assigns greater weight to the competent medical evidence, specifically the VA examiner’s findings that the etiology of the low back disability developed independently of military service and many years after service than the Veteran's lay statements. (Continued on the next page)   Additionally, in regard to the Veteran’s lay statements regarding not seeking treatment in military service as well as seeking non-documented treatment earlier than 2012 post-service, the Board finds that the Veteran’s statements, while he is competent to make such, are not credible. For instance, in service, while the Veteran has asserted that he did not seek treatment due to fear for appearing to be a malingerer, it is shown in the service treatment records that he did in fact seek treatment for another ailment, a sore throat, for which he sought treatment in February 1970. Such would seem to suggest that the Veteran would have gone to a medical provider, even if just one time, for back complaints if he had actually experienced them in service. Further, while the Veteran claims that he had visited providers for treatment of his back since leaving military service, a review of the Veteran’s post-service treatment records, which appear to be complete, are absent for any notations until the 2000’s, many decades after service, despite seeking treatment for other ailments during that time period. Accordingly, the Board also finds that the Veteran’s lay statements in this regard are outweighed by the probative VA opinions of record which show no complaints until many years after service. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.