Citation Nr: 21027690 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-20 690 DATE: May 6, 2021 ORDER Entitlement to service connection for a history of recurrent herniated lumbar disc, L4/5, with residuals of right foot drop and muscle atrophy (back condition) is denied. FINDING OF FACT The Veteran's current back conditions are not shown to have been present in service, to manifest within one year after discharge from service, or etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for recurrent herniated lumbar disc, L4/5, with residuals of right foot drop and muscle atrophy have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to November 1971, with confirmed service as a combat engineer during combat campaigns in the Republic of Vietnam. In June 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2017 and December 2019, this appeal was remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For combat veterans, as defined under 38 U.S.C. § 1154 (b), lay evidence alone can establish the in-service element of service connection, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304 (d). This is commonly referred to as the "combat presumption." 38 U.S.C. § 1154 (b) does not establish service connection for a combat veteran, but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When a veteran has not received a medal indicative of combat, the Board must determine on a case by case basis whether he participated in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The United States Court of Appeals for Veterans Claims has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). Factual Background In a June 2009 Statement in Support of Claim, the Veteran filed a claim for back problems due to a slip and fall accident during service. The Veteran's service treatment records note in September 1971, he reported lower back pain radiating down to his leg, for the past one to two weeks. It was noted that there was "no history of trauma." See September 13, 1971 service treatment record. Additionally, x-rays showed Schmorl's mode at L2. The impression was low back strain, with Schmorl's node at L1-L2. In a September 1971 separation examination report, the Veteran's back examination was noted as clinically normal. The Veteran noted he had "recurrent back pain." The Veteran noted that his health was in good condition, except for pain in the lower back. In an October 7, 1971 Statement of Medical Condition, the Veteran reported that there has been no change to his health as reported in the September 1971 separation examination report. On October 13, 1971, the Veteran was seen for a back strain. In a November 2010 VA examination report, the Veteran reported that in the 1970s he was sitting on a toilet and felt a burst and pop in the mid lumbar area. He reported that he sought medical attention and was told he has a back strain. The Veteran reported that after his separation from service, he continued to have back pain. The VA examiner noted that post service, the Veteran was involved in several motor vehicle accidents. The VA examiner noted in 1998, the Veteran was treated for a slip and fall accident at work. The VA examiner opined that although the Veteran's service treatment records document treatment for a lumbar condition, the Veteran's x-rays were essentially normal, but did identify a Schmorl's' nodes. Schmorl's nodes are caused by an abnormality of the discovertebral junction that occurs when protrusions of the cartilage of the interverbal disc through the vertebral body endplate. The VA examiner noted that this is fairly normal and often causes no symptoms. However, upon discharge, while the Veteran reported recurrent back pain, his spine examination was normal. The VA examiner noted that the Veteran's private medical records indicate the original injury was a motor vehicle accident in the mid 1980's. Private medical records indicate there was no lumbar condition identified on the Department of transportation (DOT) physical examination in 1988, which made him physically qualified to operate a commercial motor vehicle according to DOT medical requirements. In 1998, the private medical records document a fall at work that caused right leg pain and numbness. On September 24, 2000, ER records reveal an exacerbation of chronic low back pain, originating from a motor vehicle accident in the mid-1980s. In 1997, the Veteran had a reoccurrence of lumbar pain that started when carrying items up and down the stairs at work. The Veteran was diagnosed with lumbar disc disease injured by carrying items up and down stairs working as a custodian. He had a second laminectomy for a recurrent herniated lumbar disc in 1998. Follow up care continued through 2000. Given such, the VA examiner opined that the Veteran's current lumbar condition is less likely than not related to his military service. Rather, the VA examiner opined the Veteran's lumbar condition is related to multiple lumbar injures caused by motor vehicle injuries and work-related injuries that occurred subsequent to his military service. In a March 2011 Statement in Support of Claim, the Veteran filed a notice of disagreement with the RO's denial of his claim. The Veteran contends that he underwent treatment for his back problems during service, and that his post-service motor vehicle accident only exacerbated his current back condition. In a March 2011 Buddy Statement, the Veteran's spouse stated that she can attest that during the Veteran's service his back hurt. She stated that this went on until the 1980s, in which the Veteran went to a chiropractor who told him that his back pain was from an old injury. In an April 2011 Buddy Statement, the Veteran's spouse stated that the Veteran's back injury began during his service. In an April 2011 Buddy Statement, R.T. stated that he has known the Veteran for overall 40 years. He stated that after the Veteran returned home from his service, the Veteran was not able to participate in sports and complained of his back injury. In an April 2011 Buddy Statement, Q.C. stated that he is the Veteran's best friend since they were seven years old. He stated that after they got out of the Army in 1971, the Veteran had a hard time working due to his back pain. In an April 2011 Veteran Statement, the Veteran stated that he went to doctors after he was separated from service, but they could not diagnose a back disability. They looked at him and thought a young person could not have back problems. He stated that his back pain was present before his motor vehicle accident. In a January 2012 correspondence, the Veteran stated that during his service he was in a helicopter that was shot down. Specifically, the Veteran describes a bullet hit the main engine of the helicopter and the helicopter started to fall. He said although the pilot was able to land, once the helicopter hit the ground it bounced 25 to 30 feet in the air and then came down and bounced again and rolled on its side. The Veteran stated that he believes that this is where he hurt his back. In a December 2012 Buddy Statement, the Veteran's spouse stated the Veteran had back pain while he was in service. She stated that due to his back pain, she would have to help him put on his boots. She stated that his back problems continued after he got out of service. In a March 2013 Statement, the Veteran stated that he firmly believes that he injured his back due to the in-service helicopter crash. In a March 2013 Buddy Statement, the Veteran's spouse stated the Veteran has struggled with back and neck problems from service. In an April 2013 Statement, the Veteran stated that he has made numerous statements attributing his back and neck problems to his helicopter crash in Vietnam. In a May 2014 VA Form 9, the Veteran's representative argues that the Veteran was diagnosed with "chronic back pain" during service. The representative cites to a September 29, 1971 service treatment record that notes "chronic back pain." During a June 2017 Board hearing, the Veteran testified that he injured his back during the helicopter crash during his service in the Republic of Vietnam. During the June 2017 Board hearing, the Veteran's spouse stated that the Veteran injured his back during service. She stated she helped him and put ice packs on his back. She initially stated that he injured his back when he fell down doing some work on base, but then the Veteran stated that that he injured his back after the helicopter crash. His spouse then stated that she was confused. She stated that she continued to help him even after he was released from service. In a February 2020 VA examination report for back conditions, the VA examiner noted a diagnosis of degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported that his back pain started in 1970 when he was injured in a helicopter crash in the Republic of Vietnam during combat. The Veteran reported that his back pain continued upon his separation from service; and that while he sought treatment, the doctors initially told him that his pain was "all in his head." He presently reported low back pain and pressure in his heels. He notes chronic back pain. The VA examiner noted that the Veteran's medical history reveals several work related back injuries and motor vehicle accidents post service. The VA examiner opined that the Veteran's current back condition is less likely than not related to his service. The rationale provided was that although the Veteran claims to have been in a helicopter accident during combat there is no medical evidence to support a chronic back condition during service. The Veteran's service treatment records are silent for any neurological or radiculopathy symptoms related to a herniated lumbar disc. As, the Veteran's separation examination report noted a normal spine. The VA examiner opined that there is no medical evidence to support chronic pain while in service, as the Veteran's back symptoms were of two months duration. A chronic condition is greater than three months. The VA examiner went through the Veteran's medical history to determine the etiology of the back condition. On July 15, 1997, private medical records note a diagnosis of lumbar disease due to a work-related injury, where the Veteran injured his back carrying items "up and down the stairs" working as a custodian. On April 6, 1998, the Veteran reported lumbar and right leg pain. On April 9, 1998, the Veteran was referred to a neurosurgeon. On April 20, 1998, the medical records note an MRI which shows L4/5 HNP with disc fragment. On July 18, 1998, the Veteran was seen for a slip and fall on his back at work. On April 25, 2000, x-rays show L4/L5, L5/S1 disc space narrowing. On August 25, 2000, the Veteran reported back pain. On September 24, 2000, medical records from Covenant Healthcare ER note back pain, with a history of two laminectomies, with an original injury from a motor vehicle accident in the 1980s. The diagnosis was exacerbation of chronic back pain. On January 24, 2008, medical records show that the Veteran was operated on in 2000 for herniated disc at L4-5 on the right side. In a December 5, 2019 urgent care note, the examiner noted that the Veteran experiences constant pain. The examiner noted that there was not any trauma at the onset of pain. Based on the Veteran's medical history, the VA examiner concluded that the Veteran had a diagnosis of degenerative disc disease made 26 years after his military discharge. Medical record of July 1, 1998 also notes a fall at work, injuring his back, neck, knees, and hips. The lumbar MRI in 1998 noted L4/5 herniated disc with disc fragment. The Veteran's service treatment records were silent for neurological or radicular symptoms consistent with a lumbar herniated disc condition and his straight leg raise test was negative. The straight leg raise test may determine an underlying herniated disc. Thus, the VA examiner concluded that the medical evidence does not support a previous back problem, symptoms or aggravation of a previous back condition. This indicates that back pain the Veteran experienced during service resolved prior to subsequent post-service injuries. The VA examiner opined that the back-condition symptoms documented as complaints during service are less likely than not related to his current back disability. Analysis With respect to the first element of service connection, the Board notes that the record reflects the Veteran has current diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. See February 2020 VA examination report for back conditions. Thus, the first element of service connection is satisfied. With respect to the second element of service connection, the Board notes that the Veteran's service treatment records document reports of back pain during service. Thus, the second element of service connection is satisfied. With respect to the third element of service connection, the Board finds that the evidence is against a finding that the Veteran's current back conditions are related to his service. Specifically, the November 2010 and February 2020 VA examiners opined that the Veteran's current back conditions are less likely than not related to his service. The examiners both acknowledge the reported back pain during the Veteran's service. However, the examiners opined that the in-service back pain is unrelated to the Veteran's current diagnoses. The examiners note that the Veteran experiences post-service injuries to the back which are more likely than not related to his current diagnoses. Furthermore, the February 2020 VA examiner also considered the Veteran's combat lay statements that he was involved in a helicopter crash during his service. The Board notes that while the helicopter crash is not documented during his service, the Board has acknowledged this incident as an in-service occurrence based on the combat presumption. The February 2020 examiner points to the Veteran's normal spine examination at separation. The February 2020 examiner explains that the Veteran's service treatment records were silent for neurological or radicular symptoms consistent with a lumbar herniated disc condition and his straight leg raise test was negative. He noted that the straight leg raise test may determine an underlying herniated disc. Thus, the Veteran exited service with a clinical normal spine. Subsequently, the Veteran was examined in 1988 in order to obtain a commercial driving license by DOT. Importantly, in 1988, the Veteran was medically cleared for the license by DOT and no lumbar condition was noted. The examiner noted that the Veteran was not diagnosed with lumbar disc disease until July 15, 1997. The VA examiner points out that the Veteran had a diagnosis of degenerative disc disease made 26 years after his military discharge. Significantly, the February 2020 VA examiner notes that in those 26 years, the Veteran experienced post-service injuries to his back. In 1997, the Veteran reported back pain carrying items up and down the stairs while working as a custodian. And in 1998, the Veteran fell down at work injuring his back. There is also evidence that reflects a motor vehicle accident in the 1980s. Given such, there are several intervening injuries that occurred after the Veteran's separation from service, to his development of lumbar disc disease and arthritis. Given such, the February 2020 VA examiner concluded that the medical evidence did not support a previous back problem, symptoms or aggravation of a previous back condition. This indicates that back pain the Veteran experienced during service resolved prior to subsequent post-service injuries. In fact, as stated previously, the examiner based on the straight let raise test determined that the Veteran's underlying herniated disc had resolved. Thus, the Board finds that the back-condition symptoms documented as complaints during service are less likely than not related to his current back disability. The Board notes that the Veteran's representative contends that the Veteran had a "chronic back condition" during his service. Furthermore, the evidence does not establish service connection by chronicity. In order to establish service connection by chronicity, the claimant must demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. 38 C.F.R. § 3.303 (b). Here, there is no evidence of a back condition during service. Although the Veteran's service treatment records document recurrent back pain, the Board finds that the February 2020 examiner explained that the Veteran's documented back pain was about two months in duration and that is not a chronic condition. The February 2020 examiner noted that a chronic condition lasts more than three months. Here, the Board notes that the first report of back pain was on September 13, 1971, with an onset of about 2 weeks prior. The Veteran reported back pain on October 7, 1971 and October 13, 1971. Again, as discussed above, the VA examiner noted that the present manifestations of back pain of his current disabilities are not related to the in-service reports of back pain. The VA examiner stressed that the Veteran's spine was normal upon separation. Thus, the medical evidence does not establish the existence of a chronic disease during service. Without evidence of a chronic disease during service and present manifestations of the same disease, service connection by chronicity cannot be established. Here the Veteran and the buddy statements contend that the Veteran's back pain, which began during service, has continued post service. However, the evidence does not establish service connection by continuity of symptomatology. Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms. Here, as explained above, the February 2020 VA examiner opined that while the Veteran had reported back pain during service, the Veteran's in-service back pain resolved prior to the Veteran's current back pain symptoms. In other words, the February 2020 VA examiner opined that because the Veteran exited service with a normal spine and his 1988 DOT examination revealed no lumbar condition, and he was not diagnosed with a lumbar condition until 1997, after post-service injuries to his back, his in-service back pain symptoms are not related to his current back symptoms and diagnoses. Given such, the Board finds that continuity of symptomology cannot be established as the evidence of post service symptoms are not related to in-service symptoms. Lastly, although arthritis is one of the listed chronic diseases, since the Veteran did not have a diagnosis of arthritis within one year of his separation of service, he cannot establish service connection on a presumptive basis for a chronic disease. As here the Veteran was first diagnosed with degenerative arthritis in 1997, and thus it cannot be established that arthritis was shown to be manifest to a degree of 10 percent or more within one year following a Veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309. Given such, the Veteran cannot establish a nexus between the Veteran's current back conditions and his service. Consequently, the third element of service connection cannot be established. Consideration has been given to the Veteran's contentions and the buddy statements which reflect that his current back condition is related to his military service. While the Veteran and the buddy statements are competent to note that the Veteran experienced back pain, they cannot provide a medical opinion as to the etiology of the Veteran's current symptoms of back pain. The record does not reflect that the Veteran or the authors of the buddy statements have the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Determining the cause of a back condition requires medical knowledge and training, that, as laypersons, they have not shown to possess. Additionally, according to the VA examiner who provided the February 2020 opinion, full credence was given to the Veteran's statements as well as the buddy statements. The examiner explained the Veteran's separation examination report reveals a clinical normal spine. The Veteran's 1988 DOT medical evaluation reveals that the Veteran was medically fit for a commercial driving license, with no lumbar condition noted. Post service, there are instances of back injuries, to include as a result of a motor vehicle accident, as well as work-related injuries to the Veteran's back. In fact, it was over 20 years post-service, in which the Veteran receives diagnoses related to his back. Importantly, the February 2020 VA examiner did not rely on the lack of medical documentation, rather the VA examiner relied on the medical documentation, including a clinically normal spine at separation from service; a 1988 DOT medical evaluation, which reveals that the Veteran was medically fit to obtain a commercial driving license with no evidence of a lumbar condition; and subsequent post-service back related injuries. Given such, the Board finds that the February 2020 medical opinion is based on sufficient facts and data and do not rely merely on the lack of medical documentation. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.