Citation Nr: 21026139 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-17 196 DATE: April 29, 2021 ORDER Service connection for back disability (degenerative arthritis of the spine and herniated nucleus pulposus, status post-surgery, twice, with degenerative disc disease and lumbar radiculopathy of the right lower extremity) is denied. FINDING OF FACT The Veteran’s 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; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for 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 December 1966 to October 1970 in the United States Marine Corps. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). See Hearing Transcript (October 2020). A hearing transcript is associated with the record. In December 2020, the Board remanded the matter so the Veteran could be afforded an addendum opinion for his back disability and to obtain treatment records related to his claim. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). The Board notes that VA treatment records from January 2021 forward have been associated with the file since the most recent RO adjudication of the issues being decided herein. See CAPRI (March 2021). However, these records are not pertinent to the issues being decided. The VA treatment records reflect follow-up medical encounters for issues on the Veteran’s problems list. There are no records involving treatment for thoracolumbar spine disability or nexus opinion regarding the issue. As such, the records have no bearing on the issues decided herein, and a waiver of RO review of them is not required. 38 C.F.R. §§ 20.800, 20.1304(c). Entitlement to service connection for back disability is denied The Veteran contends that his current back disability is the result of a low back strain he experienced while lifting furniture while remodeling the barracks in 1968. See Hearing Transcript at 3 (October 2020). He testified that he felt a sharp pain after the incident which resulted in two-weeks of being bedridden due to pain. The Veteran acknowledged that he injured his back at work in 1981; however, he argues that an in-service back injury was not properly treated, and that his untreated back injury was then later exacerbated in a post-service occupation back injury. See Hearing Transcript at 11(October 2020) & VA Form21-4138 (March 2014). In support of his claim, the Veteran submitted a June 2015 private medical opinion (Dr. Nichols). It reflects that the Veteran’s post service back problems were related to his February 1968 back pain for which he was hospitalized at that time. The doctor stated that the Veteran “seemed to recover from this initial injury and was discharged.” The doctor stated: “I believe Willian had an ongoing disk problem related to his injury in1968 as Dr. Hammon stated the disk material removed in his second back surgery was old and degenerative which I feel would be more likely than not related to an injury in the distant past while serving in the military.” Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, including degenerative arthritis, 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 Board concludes that, while the Veteran has a current low back disability to include arthritis, the preponderance of the evidence is against finding that he has a current low back disability that began in service or manifested to a compensable degree within one year after service; or that there is continuity of symptomatology; or that his disability is etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The Veteran’s service treatment records (STRs) reflect that, in February 1967, the Veteran was seen for “muscle spasms in [his] back two weeks ago and [his] back has been sore since then.” There were no further documented complaints or abnormal pathology of the spine. An October 1970 separation examination, performed by physician Dr. R.L.W., noted normal clinical evaluation of the spine. A back disorder is first documented post service in 1981, many years after the Veteran’s service discharge. A March 1981 private treatment records shows that the Veteran injured his back in mid-February 1981 and that he had low back strain, rule out herniated nucleus pulposus. The Veteran complained of persistent pain since the injury and was placed on bedrest and conservative care. The Veteran’s provided a past medical history; however, it was negative for any reported in-service back injury or symptomatology prior to the recent injury. Private treatment and hospital records dated in 1982 reflect that the Veteran underwent low back surgery to excise herniated nucleus pulposus, L4-5. Private medical records from the Straub Clinic & Hospital, Inc., are associated with the claims file. These include a February 1982 note, dictated by W. Hammon, M.D., that described the surgical procedure to excise the herniated nucleus pulposus at L4-5; and it indicated that “The annual having been incised and excised, a large amount of degenerative disc material was removed from the interspace. It was definitely old and degenerative.” See Medical Treatment Record-Non-Government Facility (March 2010). Social Security Administration records reveal that the Veteran applied for benefits following a February 1981 injury. See Medical Treatment Records – Furnished by SSA (March 2010). A date of “February 17, 1981” was cited as the date his injury occurred. Id. at 45. The SSA records noted that the Veteran was involved in a work-related injury in 1981. He was working and attempted to lift a manhole cover when he noticed pain in his back. This progressed further and it was found that he had injured one of his discs. In the same year, a discectomy was performed. In 1982 he had a further surgery to the lumbar spine in which cartilage was removed from the nerve. In October 2009, VA received from the Veteran a VA application for compensation, wherein he reported back injury but provided no further details. See VA Form 21-526 (October 2009). A May 2014 VA examination report shows a diagnosis of degenerative arthritis of the spine and herniated nucleus pulposus, status post-surgery, twice, with degenerative disc disease and lumbar radiculopathy of the right lower extremity (RLE). A January 2021 VA medical opinion (VAMO) addressed the onset and etiology of the Veteran’s current back disability. It reflects that the Veteran’s back disability, diagnosed as degenerative arthritis of the spine and herniated nucleus pulposus, status post-surgery, twice, with degenerative disc disease and RLE lumbar radiculopathy, less likely than not had its onset in service, manifested to a compensable degree within one year after service discharge, was noted in service with continuity of symptomatology, or related to in-service back strain. The opinion explained that, while the Veteran had muscle spasms in 1968 during his military service, the STRs show that this had resolved in view of the absence of chronicity of complaints or findings, coupled with the normal service separation examination for the spine and other musculoskeletal systems. The opinion reflects consideration of the Veteran’s post service clinical history and the Veteran’s retrospective report that his in-service back injury was not properly treated and that his untreated/improperly treated back injury was later exacerbated by his work injury in 1981. However, the opinion explains that this is not a reasonable supposition given the nature of muscle spasms to include its typical symptoms (“ranging from minor discomfort and stiffness to sharp, severe pain and muscle tightening that prevents normal back movements”), the anatomy implicated (i.e. soft tissues of the spine—muscles, tendons, ligaments), and the healing process (typically soft tissue injury heals enough within 4 to 6 weeks with minimal treatment) and general medical knowledge that soft tissue injury does not cause injury to the intervertebral and articulating structures of the spine. The January 2021 VAMO reflects meaningful consideration of the June 2015 private medical opinion. However, the VAMO found the opinion unpersuasive because, first, it was not supported by the objective medical evidence of record—specifically, that showing any chronic condition affecting the articulating joints and intervertebral discs of the spine during service and in the 11 years following the Veteran’s service discharge; and second, the presence of old and degenerative disc material is “most often the result of multiple factors” to include gradual repeated wear and tear over time, advancing age, and prior injury. The VAMO noted that the Veteran had been able to work as a lineman for the State electric company during the 11-year period intervening service and his 1981 work-related injury to the back (lifting a concrete manhole cover), suggesting that this did not support the incurrence of any chronic back disorder in service or within one year after service or continuity of symptoms noted in service. Here, the Board find that the more persuasive evidence of record weighs against the claim for service connection for lumbar spine disability, diagnosed as degenerative arthritis of the spine and herniated nucleus pulposus, status post-surgery, twice, with degenerative disc disease and RLE lumbar radiculopathy. While STRs document that the Veteran had, in February 1968, muscle spasm in the back two weeks earlier and his back had been sore since then, STRs reflect no chronic back disorder or abnormal pathology. Indeed, there was no follow-up for back symptoms in service and a normal service separation examination without any documented complaints or findings for abnormal back pathology until the Veteran’s work-related injury of 1981. The Board accepts that the Veteran is competent to report injury, onset of symptoms, and treatment. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to formulate a medical opinion linking his currently diagnosed back disability, degenerative arthritis of the spine and herniated nucleus pulposus, status post-surgery, twice, with degenerative disc disease and RLE lumbar radiculopathy, to his reported in-service injury or back spasms. The etiology of his disability, first shown more than a decade after service discharge, is not susceptible to lay observation. Rather, the etiology is complex and requires medical training and knowledge as to the pathophysiology of the spine—or in other words, the causes, consequences, and concomitants of disease processes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, his opinion as to the cause of his disorder has no probative value. Further, the Board finds that the Veteran’s statements made in pursuit of this benefit are not credible. First, while he disputed at the Board hearing that he received a medical examination from a doctor at separation, the claims file includes his October 1970 separation examination, performed by a physician, and signed by both the physician and Veteran. Second, the June 2015 private medical opinion reflects that the Veteran provided a false history to that doctor of severe back injury requiring hospitalization in February 1968, which is simply not borne out by the record. Notably, neither the STRs nor the Veteran’s October 2020 sworn testimony reflect any hospitalization. The Veteran testified that he was taken to the dispensary and bedridden for two weeks. However, this too is incongruous with the February 1968 STR, which shows that the Veteran presented with a history of back spams two weeks earlier and now had a sore back. Third, to the extent that he reports continuity of back symptomatology since injuring his back in service, this is not credible in view of the absence of any documented complaints or findings after the 1968 report of a sore back when otherwise presenting for other medical complaints in service coupled with the normal 1970 service separation examination and the Veteran’s original VA disability application dated in October 1970, which does not include any mention of the back or the injury event later reported. Also, his report of continuity of symptoms related to an in-service back injury is incongruous with the past medical history provided by the Veteran to treating providers at the time of his 1981 work-related back injury. At the time of his February 1981 work-related back injury, the Veteran reported no prior back injury (to include in service) or having had back symptoms prior to the work injury of February 1981. Given the above, the Board finds that the Veteran’s statements lack probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). See Caluza, supra. The Board has considered the June 2015 private medical opinion. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether or not, and the extent to which, the prior clinical records and other evidence were reviewed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Also, the probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Factors for assessing the probative value of a medical opinion are access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the June 2015 favorable medical opinion has no probative value for the following reasons. First, it is predicated on an inaccurate medical history provided by the Veteran of a serious or significant back condition that required hospitalization, which as explained above it not true. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). Second, it does not contain a complete rationale. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. The medical opinion contains a conclusion that the Veteran’s back disability is related to an in-service injury with supporting data being the findings for “old and degenerative” material on removal of his herniated disc following his 1981 work injury. However, there is not a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). The Board assigns greater probative value to the Veteran’s STRs to include the normal clinical evaluation of the spine on service separation coupled with more than a decade intervening service and the first documented findings for abnormal back pathology. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Also, the Board assigns greater probative to the January 2021 VAMO. The VAMO was prepared by a trained medical professional, reflects a review of the claims file and cites to specific information in the claims file. Moreover, the opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the medical opinion that the clinician reviewed the Veteran’s claims file and considered the private medical opinion and Veteran’s history. Also, the medical opinion is supported by a sufficient rationale that the Board can use to weigh against the other evidence of record. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.