Citation Nr: 21026935 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-39 565 DATE: May 4, 2021 ORDER Entitlement to service connection for lumbosacral-spine disorder is denied. FINDING OF FACT The objective medical evidence shows that a chronic lumbosacral-spine disorder was not incurred in active or inactive duty for training and is not caused by an event, injury, or illness during training. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbosacral-spine disorder have not been met. 38 U.S.C. §§ 101, 106, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant had verified active-duty-for-training (ACDUTRA) in the United States Army from May 22, 1992 to July 24, 1992, from June 4, 2009 to June 17, 2009, and from May 29, 2010 to June 12, 2010. The remainder of her military service was in reserve status. She was a Member of the Reserve from April 1992 to December 2012. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active duty for training, or for injury incurred in or aggravated by inactive duty for training. 38 U.S.C. §§ 101, 106, 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Entitlement to service connection for lumbosacral-spine disorder, to include bilateral lower-extremity radiculopathy. The service treatment records (STRs) show in the Appellant's enlistment examination for reserve service, the Appellant's spine and other musculoskeletal was found to be normal and she denied past or current recurrent back pain. The Appellant has submitted service treatment records dated in June 1992 showing she presented with left-L5 pain, observed by the treatment provider as "L-5/S-I" and assessed by him as, "Resolving L-5/S-I strain." She was placed on a profile for a lumbosacral strain. No other treatment for that disorder appears in the STRs during this active duty period through July 24, 1992. While in reserve status, an August 1999 line-of-duty determination (Statement of Medical Examination and Duty Status) indicated "pain and spasm in back," occurring when rising from her bed. There are additional service treatment records noting the Appellant's chief complaint of back pain in October 2009. A November 2009 VA treatment note shows on physical examination lumbosacral spine with tenderness over the left-sciatic nerve, with was pain on motion, but otherwise showing a normal appearance, no muscle spasms, and no step deformity. The November 2009 treatment provider further found lumbar-spine intervertebral disc degeneration. The post-military service record shows complaints of "low back pain with possible herniated disc" in March 2013. Extensive private treatment notes in the period of 2011 through 2013 show the Appellant was treated for numerous disorders. Some notes make reference to low-back pain as one of her ongoing disorders. However, low-back pain appears only intermittently in the notes, for example, as the Appellant's report of spasms at VA in April 2012 and private stroke rehabilitation notes in February through May 2013 noting under surgical/other medical history, "LBP [low-back pain] with possible herniated disc." Most medical histories, as reported by the Appellant, make no mention of back problems, specifically, most review-of-systems reports by the Appellant do not include low-back pain and physical examinations routinely show normal musculoskeletal findings. Assessments and diagnoses do not include low-back pain, lumbosacral-spine disorder or similar or related disorders. An October 2014 fully favorable decision from the Social Security Administration granted benefits to the Appellant based on a finding of disability. The decision referred to physical and mental impairments as right and left-eye glaucoma, with right-eye blindness, hearing loss, bilateral vestibulopathy, sarcoidosis, gastritis, sleep apnea, history of stroke, depression, and asthma, to which the Appellant had given testimony. However, the Appellant, the medical expert witness (a physician) and the administrative law judge made no mention of low-back pain or a back disorder. As directed by the Board in its November 2018 Remand, the Appellant was afforded a January 2021 VA examination for thoracolumbar-spine conditions, in which the VA examiner diagnosed L5/S1 degenerative disc changes with bilateral lower-extremity radiculopathy. She noted the Appellant's reports of onset in 1999 when lying in bed and experiencing back pain on rising. She sought medical attention, she was given medication, her mattress was changed, she underwent physical therapy, and back problems continue. She added that currently she takes over-the-counter medication, symptoms include constant aching or a throbbing, sharp pain or burning sensation, spasms, she cannot do certain daily activities, she has limited sitting, standing and walking, and there are flare-ups. The January 2021 VA examiner conducted various tests, the findings of which included mild bilateral intermittent pain and numbness and tingling, indicating radiculopathy, affecting right and left-sciatic nerves. There were no available imaging studies. The January 2021 VA examiner was requested to address the question for each back disability diagnosed whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during active service or active duty for training or is the result of an injury during a period of inactive duty for training. Specifically, the examiner was asked to address the June 1992 treatment for lumbosacral strain and the August 1999 Statement of Medical Examination and Duty Status noting "pain of spasm of the lower back" incurred in the line of duty. She opined that the Appellant's diagnosis of L5/S1 degenerative changes with bilateral lower extremity radiculopathy is less likely than not (less than 50 percent probability) due to active service or active duty for training. She explained in her rationale, "There is no evidence showing a back injury during inactive duty for training. One note of resolving back pain during active service noted on 6/15/1992. No further [complaints of] back pain during active service. She denied any recurrent back pain during the enlistment for reserves on 4/17/1992. A nexus is not established." Among her references to the record, she noted the April 1992 enlistment examination with the Appellant stating "no" to persistent recurrent back pain, there is no evidence that the Appellant was discharged due to a back condition and the Appellant does not have 90 days of active service (to be eligible for a presumption of service connection for the manifestation of a chronic disease within a year of separation from active service). She noted the June 1992 in-service note showing lumbosacral pain being atraumatic for 2 weeks and the treatment provider's assessment of lumbosacral strain "[r]esolving." However, she also noted the Appellant submitted a personal statement dated August 1999, stating she had no previous history of back problems prior to July through August 1999. Lastly, the January 2021 VA examiner noted from the record that the diagnostic finding of L5/S1 degenerative changes in the November 2009 VA note "is almost 17 years after the June 1992 complaint of back pain during active duty." She concluded "[t]here are no findings showing this condition is related to active duty service or active duty training and there is no evidence showing a back injury during inactive duty for training." The Board has carefully considered the Appellant's statements accompanying her October 2014 Notice of Disagreement and November 2015 Appellants Appeals Form 9 and her October 2017 correspondence statement, as well as the Appellant's reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Appellant is competent to provide statements of symptoms which are observable to her senses and there is no reason to doubt her credibility. Nonetheless, the Appellant's lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The statements and the Appellant's reports to examiners and treatment providers contend that in-service treatment records, specifically the June 1992 treatment note, show her back disorder was incurred during ACDUTRA. However, as shown in the Board's summary of the record and emphasized by the January 2021 VA examiner in the rationale for her opinion, the in-service treatment provider specifically had assessed lumbosacral strain as "[r]esolving." Moreover, both the subsequent ACDUTRA and reserve-service records show no complaints, treatment or diagnoses for low-back pain, lumbosacral strain or a similar or related back disorder until the Appellant's visit to VA in November 2009 during reserve service. Additionally, there is no mention of a back disorder in the later periods of ACDUTRA and only in April 2012 private treatment notes are there again complaints of back spasms. The Board therefore assigns more probative weight to the findings of the January 2021 VA examiner, who conducted an in-person examination of the Appellant, she thoroughly reviewed the Appellant's medical history and her opinion, for the reasons stated above, exhibits sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The record of treatment and examination offers no medical evidence to establish a causal relationship or nexus an injury during ACDUTRA and a current disability. For example, back strain was noted in June 1992 as resolving and no further treatment followed in the 2 ACDUTRA periods in 1992 and 2010 or in the Appellant's long reserve career, nor were the symptoms of a severity to impel her to seek treatment directly after her short periods of ACDUTRA or in the years following until, it appears from the record, November 2009 while still in reserve service and now approximately 17 years on from the June 1992 active-duty assessment of lumbosacral strain. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.