Citation Nr: 21028025 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-28 347 DATE: May 10, 2021 ORDER Service connection for a back disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from December 1985 to May 1986 and from January 1987 to January 1991. 2. A back disorder was not shown in service, degenerative changes, degenerative disc disease (DDD), and intervertebral disc syndrome (IVDS) of the lumbosacral spine were not shown within one year of service, symptoms were not continuous since service, and the current back disorder is not causally or etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW A back disorder was not incurred in service, nor may it be presumed to have been incurred in service, and it is not proximately due to, the result of, or aggravated by service-connected disability. 38U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A, 5107 (2012);38C.F.R. §§3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2018 the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2021, the Board remanded the issue for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran asserts that service connection is warranted for a back disorder because he injured it in service and has had ongoing pain ever since. In the alternative, he asserts that it is secondary to his service-connected varicose veins. As to the existence of a present disability, a November 2017 private treatment record noted a diagnosis of moderate degenerative changes of the lumbar spine at L5-S1. An October 2020 VA examination report noted diagnoses of DDD and minor degenerative changes of the lumbosacral spine. Therefore, the first element of direct service connection is met. As to an in-service incurrence, the Veteran reported that he injured his back in service. There is no notation in the service treatment records (STRs) of any back injury, complaints or findings. The service separation examination noted normal evaluation of the spine and the Veteran denied back trouble on the Report of Medical History at separation. However, as he is competent to report a back injury and he testified that it hurt on and off so he did not seek treatment in service, the second element of direction service connection is met for purposes of this decision. As to a causal relationship (medical nexus), the STRs do not reflect complaints or findings with respect to the Veteran's back, the service separation examination noted normal clinical evaluation of the spine and the Veteran denied any back problems on the separation Report of Medical History. Therefore, the STRs do not support a medical link between the current back disorder and any incident during service and nothing in the medical record suggests any link to any incident of service. Importantly, neither the October 2020 nor the February 2021 VA opinions determined that the current back disorder was causally or etiologically related to any incident of service. As such, the medical evidence does not support service connection on a direct basis. As to presumptive service connection, as noted above, no chronic disease or injury related to a back disorder was shown in service as the STRs were absent of any related complaints. Also significant is the lack of any related complaints or findings at the time of service separation. The service separation examination report noted normal evaluation of the spine and the Veteran denied back trouble at separation. In addition, the Veteran does not specifically contend that degenerative changes/arthritis of the lumbar spine was present in service. Moreover, the first diagnosis of any degenerative changes was from 2017, which is over 25 years after service discharge. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran was discharged from service in 1991with a notation of normal clinical evaluation of the spine and he was not diagnosed with degenerative changes/DDD of the lumbar spine until 2017, more than 25 years after service. Although the Veteran contends that he had experienced back pain since service, the post service medical evidence directly contradicts this assertion. In this regard, a September 2007 private chiropractor health history form noted that the Veteran reported back pain. As to a question regarding whether he had ever injured his back before, he indicated that he did not know (he responded with "?"). Additionally, a February 2008 intake form for another private chiropractor noted that the Veteran reported back pain which had been present for one month following moving a television. There are additional notations in the margins stating that back pain had been present four times a year since 1987 after heavy lifting in service. However, it is unclear when these additional notations were added but what is clear is that the initial/original answers to the questions regarding duration of pain and onset injury were one month and moving a television. The intake form also noted that he had had one prior visit to a chiropractor, but it does not indicate when this prior visit occurred. Moreover, the VA treatment records first noted complaints of back pain in August 2012 but do not reflect that the Veteran reported any inservice injury or ongoing symptoms since service. Also significant is a December 2006 VA treatment record noting a normal examination of the back and no back complaints. The Board finds the statements made to health care providers from 2006 to 2008, prior to the claim, to be of greater probative weight than the statements made in conjunction with a claim for compensation benefits/appeal for denial of such claim. See Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Therefore, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, a back disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1971 but symptoms were first noted in a September 2007 private chiropractor treatment record and degenerative changes/arthritis was not diagnosed until 2017. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Regarding the claim on a secondary basis, the record contains conflicting medical evidence. In this regard, an August 2018 private opinion from Dr. C. stated that it was possible that persistent varicose veins disrupted gait and resulted in worsening of the lumbar spine condition. An October 2020 VA examiner opined that it is less likely than not that the Veteran's back disorder was due to or the result of his varicose veins, as varicose veins in the lower extremities were not related clinically or in any other way to the development of lumbar pain or vice versa because simply no clinical relationship exists between the two. While the examiner went on to state that "the claimed condition" was at least as likely as not aggravated by the "insert service connected condition," the examiner inexplicably reasoned that the physical demands of service including prolonged standing could make varicose veins and lumbar pain worse. An additional clarifying medical opinion was obtained in February 2021. The February 2021 VA opinion report stated that although Dr. C. opined that the varicose veins could aggravated the Veteran's lumbar spine disorder, October 2020 examination of the spine demonstrated 65 percent range of motion of the spine with normal lower extremity strength and no use of assistive devices. The VA clinician opined that these findings fell within the projected natural history of the back condition and did not represent aggravation beyond natural progression. The February 2021 clinician also opined that the back disorder was less likely than not incurred in or caused by the claimed in-service event, injury or illness. The clinician indicated that while there was a current diagnosis of lumbosacral strain and IVDS, there was no objective evidence of related complaints or treatment in service. The Board has considered the private opinion regarding aggravation but finds it less persuasive than the opinion of the February 2021 VA clinician. In this regard, the private opinion is phrased only in terms of a possibility and is insufficient to warrant service connection. In sum, the medical evidence weighs against the claim. Notably, the record contains VA opinions against the claim on a direct basis and on a secondary basis. The October 2020 VA examiner examined the Veteran and reviewed the claims file. The February 2021 VA clinician reviewed the claims file as well. The October 2020 VA examiner provided an adequate opinion and rationale regarding whether the Veteran's back disorder was caused by his service-connected varicose veins and the February 2021 VA clinician provided adequate opinions and rationales regarding secondary service connection based on aggravation and direct service connection. While the February 2021 VA examiner did not directly address the Veteran's contentions of ongoing back symptoms since service, as discussed above, the Board finds that the post-service medical evidence directly contradicts the Veteran's contentions, and as such, finds him not credible in this regard. Therefore, any such omission in the February 2021 VA opinion report is not dispositive. The Board has considered the Veteran's lay statements that his back disorder began in service and has been ongoing since or that it is secondary to his varicose veins. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.