Citation Nr: 21028210 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-34 023A DATE: May 10, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period following his separation from service; continuity of symptomatology since his service is not established; and the disability is not otherwise shown to be etiologically related to any in-service injury or disease. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a low back disability. 38 U.S.C. §§ 1101, 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 January 1989 to September 1990, including in Panama from December 1989 to January 1990. He was awarded a Combat Infantryman Badge (CIB). This appeal to the Board of Veterans' Appeals (Board) is from a May 2008 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) (i.e., Agency of Original Jurisdiction (AOJ)). In July 2016, in support of this claim, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. In November 2016, the Board remanded the Veteran's claims for hearing loss, posttraumatic stress disorder (PTSD), and a low back disability back to the RO for further development and consideration. And an April 2020 rating decision since issued granted service connection for hearing loss, tinnitus, and PTSD. If the Veteran disagrees with the ratings and effective date assigned for those now service-connected disabilities, he must separately appeal these "downstream" issues, and there is no indication he has. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Since, however, the Veteran's remaining claim for a low back disability conversely continued to be denied on remand, it is again before the Board for further appellate consideration. Consider also that, since the VLJ who presided over the Veteran's July 2016 hearing since has retired, the Board sent the Veteran a letter in March 2021 indicating he could have another hearing before a different VLJ who would ultimately decide this appeal. The letter also indicated, however, he needed to respond within 30 days, and he did not, so the Board is proceeding with its adjudication of his claim for a low back disability. Entitlement to service connection for a low back disability The Veteran contends that his current low back disability is due to injuries during active duty service. He has stated, at various times on record, that his symptoms began during or after his training at Fort Benning from carrying heavy radio equipment in the field and crashes during motorcycle training. Service connection may be granted for a disability due to a disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: "(1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted, as well, on a presumptive basis for "chronic" diseases when evidence demonstrates a combination of manifestations sufficient to identify the disease, with sufficient observation to establish the disease's chronicity while in service. 38 C.F.R. § 3.303(b). These findings are different from isolated findings or a disease diagnosis merely including the word "chronic" without further detail and analysis. Id. When, instead, a condition was "noted" in service but was not shown to be chronic or when chronicity may be legitimately questioned, showing continuity of symptoms after service may establish a nexus between the post-service diagnosis and the in-service incurrence of a disability under 38 C.F.R. § 3.309(a). The Veteran received a diagnosis of lumbar degenerative disc disease (DDD) in September 2006, so some 16 years after conclusion of his service in September 1990. That notwithstanding, service connection may be granted for a disease initially diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Degenerative joint disease (DJD), i.e., arthritis, as opposed to DDD, is a presumptive condition according to 38 C.F.R. § 3.309(a). Prior to the recent amendments to the criteria for rating musculoskeletal disabilities that took effect as of February 7, 2021, degenerative arthritis and degenerative disc disease (intervertebral disc syndrome (IVDS)) were rated under two different diagnostic codes, 5242 and 5243, respectively, so at least arguably were considered two different conditions. However, the amendments to the rating criteria that took effect as of that date, among other things, now allow for rating both degenerative arthritis and DDD (IVDS) under Diagnostic Code 5242 in certain circumstances, so not instead rating DDD exclusively under DC 5243. Thus, for purposes of this decision, the Board will equate the two and consider the Veteran's DDD as a chronic condition with the purview of 38 C.F.R. § 3.309(a). Therefore, a showing of continuity of symptoms may be substituted for evidence otherwise required by 38 C.F.R. § 3.303(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if the evidence demonstrates: (1) that a condition was "noted" during service; (2) that there is evidence of post-service continuity of the same symptomatology; and (3) that there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker, 708 F.3d 1331 (Fed. Cir. 2013). Here, though, importantly, the record does not reflect in-service incurrence of a relevant disease or injury to account for the Veteran's current low back disability. He does not allege he injured his low back in combat, despite receiving the CIB, rather, in training. His claim therefore is not subject to the lesser pleading-and-proof requirements for that circumstance when VA accepts that the inherent nature of that hostile environment would not allow necessarily for a Veteran to have been treated for his injury and, thus, have documentation of that treatment in his service treatment records (STRs). 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). See also Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). That said, in Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Conversely, in cases where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings in order to rely on this negative inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. Here, the Veteran's STRs reflect treatment in July 1989 for a rash on his low back. At the time, he stated that he felt pain "in this area (prior to the eruptions)." This STR does not indicate whether the reported pain was related to the rash, specifically, or instead was meant to describe some other symptom referable to his low back more generally. Regardless, this is the only report of low back pain in his STRs. Notably, his STRs shows regular medical appointments for a variety of ailments, including repeated treatment for left ankle injuries, but none identify or mention low back pain or precipitating injury, specifically including those during and immediately following the periods that he later identified as triggering onset, namely, his training at Fort Benning between January and April 1989, deployment to Panama from December 1989 through January 1990, and at motorcycle training in May 1990. There is no military separation physical examination of record. The Veteran filed this service-connection claim after being diagnosed with lumbar DDD in September 2006 which, as already mentioned, was several years after the conclusion of his military service in September 1990. That long a lapse of time between conclusion of his service and initial indication of this now claimed disability tends to refute the notion that this condition dates back to his service or is related or attributable to his service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Notably, post-service treatment notes from May 2005 and June 2006, so in the rather immediate interim, indicate the Veteran reported no prior back injuries, history of back injury, or back pain prior to June 2006, when he injured his back instead on a bunk bed. That intervening ("intercurrent") trauma had nothing to do with his prior service in the military. When he filed this claim in September 2006, he asserted that the medical provider who had just diagnosed his lumbar DDD had attributed it to prior injuries or possibly to his military service. That attribution is not reflected in the treatment records, however; instead, the provider's statement appears to have triggered the Veteran's claim, as opposed to his own long-standing pain or perception that he was injured in service. Generally speaking, a claimant's account of what a doctor purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). Because a medical opinion resultantly was needed to assist in deciding this appeal, the Veteran was afforded a VA spine examination on remand in January 2020. He reported symptom onset during his service, in 1990, after carrying heavy equipment. The examiner confirmed the diagnosis but ultimately found no correlation ("nexus") between the Veteran's diagnosed low back disability and his service due to the lack of in-service treatment and the lack of treatment history between separation in 1990 and treatment in 2006. The Board also recognizes that, in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, to repeat, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition, even aside from Forshey already cited. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .") Here, in sum, the record does not affirmatively show an in-service disease, event or injury of significance, manifestation of this now claimed condition during the Veteran's service (it was not "noted") or within one year of his separation from service, or continuity of symptomatology since his service owing to this condition. The record reflects, instead, statements from the Veteran personally to his providers that he had no back injuries prior to 2005, even though he begins reporting persistent back pain concurrent with filing his September 2006 claim. He is competent (that is, qualified) to report on his experienced symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). But his statements concerning just how long he has experienced his symptoms, and their cause, are inconsistent, which, in turn, tends to undermine his credibility. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board additionally finds the April 2005 and June 2006 treatment records affirming no prior low back pain or injury to be more persuasive than later statements by the Veteran to the contrary because statements recorded in his treatment records were made in furtherance of medical treatment, in contrast to statements made to VA for purposes of obtaining disability benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for a low back disability, so this claim must be denied. There is no reasonable doubt to be resolved in the Veteran's favor. See 38U.S.C. §5107(b); 38C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.