Citation Nr: 21027102 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-07 566 DATE: May 4, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The Veteran's current low back disorder is less likely than not etiologically related to his active service, to include a conceded inservice back injury; and did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria of entitlement to service connection for a low back disorder have not been 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 in the Army from August 1976 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at December 2016 a Travel Board hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. The Board previously remanded this matter to the AOJ for further development in December 2017, January 2019, and October 2020 decisions. Entitlement to service connection for a low back disorder Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran may benefit from a presumption of service connection based on a chronic disease, such as arthritis. 38 C.F.R. § 3.309(a). When a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Even if a chronic disease is not shown within one year of discharge, service connection may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that his current low back disorder, diagnosed as degenerative arthritis of the lumbar spine, is due to his military service. Specifically, the Veteran testified at the December 2016 Board hearing that during service he was pushing a full wheelbarrow up a hill when he heard felt a "pop" in his back and was taken to the base hospital. He described being treated and released the same day, although he reported followup therapy after the incident. The Veteran also stated that a treating military clinician informed him his back injury would "probably affect" him later as he aged. He denied any further injuries to or therapies for his back until beginning VA treatment in approximately 2010. The Veteran's service treatment records note the Veteran's back as normal upon both his entry and separation from service. According to his July 1978 separation examination he denied recurrent back pain and swollen joints as well as medical care for the same. The Veteran indicated that he had been treated for a hernia at a private hospital six years prior to service, but the examiner noted this was an umbilical hernia repair. Due to the possible destruction of the Veteran's service treatment records, the Board made two separate findings of fact in the January 2019 decision. The first was that the Veteran's hearing description of his inservice injury and treatment was to be accepted as true although undocumented, and the second was that the most credible evidence of record indicates that he did not have recurrent back pain at the time of his July 1978 separation from service. According to April 2011 VA treatment records, the Veteran reported low back pain and concurrent lumbar spine imaging revealed diffuse mild degenerative joint disease (arthritis) but no compression deformity, spondylolisthesis, bony erosion, or destructive change. In December 2011, the Veteran reported to the VA medical center with complaints of increased neck and low back pain. The treating clinician diagnosed him with a mild lumbar spasm and, noting his severe cervical stenosis, stated "his back pain is likely a reflection of postural changes due to the severe neck pain." May 2012 VA treatment records indicate the Veteran reported exacerbation of neck, bilateral shoulder and arm pain after involvement in an April 2012 motor vehicle accident. The treating clinician noted a past history of neck pain as well as a diagnosis of spinal stenosis in the cervical region, but specifically recorded an absence of back pain. December 2017 VA treatment records indicate the Veteran reported his back pain "began a long time ago" but denied any injury or accident. He reported experiencing some back pain while on active duty and reported his current job aggravates his low back when lifting and turning. March 2019 lumbar spine imaging revealed diffuse minor degenerative changes as well as facet arthropathy of the lower lumbar spine, and August 2019 records note the Veteran was obese. The Veteran was afforded a VA back examination in December 2019. The examiner noted a diagnosis of degenerative arthritis of the spine with accompanying bilateral lower extremity radiculopathy. The Veteran narrated the inservice wheelbarrow incident and described his symptoms as persistent and progressive since separation from service. The examiner noted his degenerative spine disorder limited his range of motion as well as his ability to repetitively lift, bend, push, pull, stand, and sit. The examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by his military service. The examiner noted the absence of inservice treatment records and reasoned that his mild degenerative changes of the spine, observed by a March 2019 x-ray, were more likely the natural changes of aging combined with obesity in an almost 60 year old man as opposed to the result of an injury incurred while pushing a wheelbarrow over 40 years ago. The examiner cited a study finding that obesity has the strongest association with seeking care for low back and chronic back pain and noted October 2015 and February 2016 VA treatment records indicating the Veteran was obese. The Board remanded the matter to the AOJ in order to obtain an additional opinion taking into account the findings of fact noted above. In a December 2020 addendum opinion, a different VA examiner noted the Veteran's contentions but stated that there was no medical reason to accept his belief that his current back disorder is related to his inservice injury. The examiner also opined that his injury was less likely than not incurred in or otherwise due to his service, observing that May 2012 VA treatment records indicate he reported exacerbation of existing neck, bilateral shoulder and arm pain, but that his problem list, which included obesity, did not include a back condition. Noting that the Veteran reported seeking physical therapy for his back in December 2016, the examiner concluded that the onset of the Veteran's current back problem would have had to be after May 2012. The examiner stated that degenerative arthritis is generally due to "normal wear and tear" of the joints and noted the Veteran's history as a football player and current occupation as a personal care assistant. Finally, the examiner stated there was no current medical literature supporting a connection between a back injury that included a popping sensation with limited subsequent therapy and the onset of diffuse minor degenerative changes with facet arthropathy over 30 years later. As noted above, the Board has conceded the Veteran's inservice back injury and subsequent treatment. However, the Board has also found that the most credible evidence indicates that he did not have recurrent back pain at the time of his separation from service. In analyzing the evidence of record, the Board finds that the Veteran's current diffuse degenerative arthritis of the lumbar spine with facet arthropathy did not have its onset inservice and was not caused by his active duty service. The Veteran's facet arthropathy was not diagnosed until March 2019 and was not present on December 2011 imaging of the lumbar spine. His diffuse minor degenerative arthritis of the lumbar spine has been attributed by a medical professional as due to normal wear and tear, the aging process and his obesity. The Board finds the opinion of the December 2020 examiner to be highly probative, as it takes the Veteran's conceded inservice injury, his medical treatment records, and the relevant medical literature into account. With regard to chronicity, the Board has considered the Veteran's lay statements reporting progressive and worsening back pain since his inservice injury. However, the Board finds that the Veteran's denial of recurrent back pain and swollen joints is the most credible statement regarding continuity as the statement was made contemporaneous to the time period in question and bear the indicia of reliability as they were made in the context of obtaining appropriate medical treatment and/or diagnosis. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The separation statement is consistent with the findings from a competent examiner at that time finding a normal clinical evaluation of the spine. As such, the Board finds that the most credible evidence of record indicates the Veteran did not experience recurrent back pain at separation, and he is not shown to possess the requisite training to speak to the proper diagnosis or etiology of an orthopedic disorder such as arthritis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's perception of back pain since service does not adequately support a finding of arthritis being manifest in service or to a compensable degree within one year of service. There is no x-ray indication of arthritis to support such a diagnosis, and the opinion of the December 2020 examiner that his current disorder is due to post-service factors outweighs any lay statements tending to support arthritis being manifest in service or within one year of separation. Finally, the Veteran did not seek treatment for back pain until over 30 years after service, when his initial diagnosis was a back spasm ultimately due to his severe cervical stenosis. Overall, the Board finds insufficient lay and medical evidence to support an award of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b) or arthritis being manifest to a compensable degree under 38 C.F.R. § 3.309(a). The Board has also considered the Veteran's recollection that a military examiner informed him that the injury during service would affect him later in life. This recollection has some probative value as the Veteran is relating an opinion from a presumably qualified examiner. However, the probative value of this statement is limited as the Board cannot evaluate the certainty of opinion or rationale for this statement. The probative value of this statement is greatly outweighed by the statement of the December 2020 examiner who provided an opinion based on the entirety of the record and provided a rationale for the opinion provided. For these reasons, and with a preponderance of the evidence being against the Veteran's assertion of a link between his current back disorder and his inservice injury, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.