Citation Nr: 21029087 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-01 687 DATE: May 12, 2021 ORDER Entitlement to service connection for lumbosacral strain (claimed as back pain) is denied. FINDING OF FACT The preponderance of the evidence is against finding that lumbosacral strain began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lumbosacral strain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1966 through December 1968, with additional service in the reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). 1. Entitlement to service connection for lumbosacral strain (claimed as back pain) The Veteran contends that his back pain is a result of his active duty service, and the heavy lifting involved in his work in aircraft maintenance. The Board concludes that, while the Veteran has a diagnosis of lumbosacral strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records show one physical injury during active duty, a groin strain in September 1967 sustained while lifting chairs. The Veteran reported to sick call several times between January 1968 to April 1968, for this strain as well as a nervous condition. The Veteran was hospitalized for several months in 1968, however the service treatment records clearly indicate this was for a nervous condition and not for the groin injury. When discharged from the hospital, the Veteran was found physically fit for duty. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses related specifically to the lumbar spine. The Board notes that the Veteran has contended, most recently in a March 2019 statement, that he was "held over" his service discharge and admitted to a Navy Hospital. He alludes to having neck and back issues at that time although he concedes, "they blamed everything on emotions." In fact, the military records clearly indicate the 1968 hospitalization was for a nervous condition and completely unrelated to any musculoskeletal complaints or treatment. After service, the Veteran was afforded a VA examination in September 1969 related to his "nervous condition." This examination included a physical examination where, at that time, his musculoskeletal system was found to be "normal." Indeed, it is noteworthy that the Veteran's complaints were documented at that time, and none of the complaints were related to musculoskeletal pain. VA outpatient treatment records first indicate complaints of neck and back pain as early as November 2010, over four decades after service. He underwent some physical therapy and a January 2018 MRI showed multilevel lower thoracic and lumbar degenerative spondylosis. The Veteran underwent a VA examination in December 2018 where the examiner noted the Veteran's contention that he had ongoing back pain caused by working on aircraft, being bent over and lifting heavy equipment "all day" during service. The examiner also noted the Veteran's contention that the "onset" of back pain began in 1967 and accumulated over time. After a thorough physical examination and reviewing the claims file, the examiner opined that the Veteran had current lumbosacral strain, but the current back strain was "less likely than not incurred in or caused by the work on aircraft and was bent over and heavy lifting all day during service." The examiner explained that the records did not confirm any in-service treatment or complaints for back pain. The examiner noted a diagnosis of lumbosacral strain since 2018, decades after service. In March 2019, VA received a letter dated January 2019 from a private chiropractor indicating that the Veteran had been a patient at the office "for over 25 years" to treat "cervical, upper thoracic pain and stiffness with intermittent headaches." The private chiropractor also noted the Veteran's self-reports that he injured his neck in service and that the pain and stiffness "followed him throughout his life" with secondary "thoracolumbar pain and low back pain." As noted above, the only in-service injury noted in the Veteran's service records is a groin injury incurred in September 1967 related to lifting chairs. There is nothing in the Veteran's service records that reflect a neck injury and, indeed, the service treatment records are silent as to any complaints, treatment, or diagnoses related to the neck. The Veteran has also not provided any information or evidence of any specific in-service incident or trauma to his neck or back. Rather, his contention of continuous back pain since service is largely unsupported. To the extent the January 2019 dated-letter from the above-mentioned chiropractor can be construed as a "nexus" opinion, the Board finds the opinion of no probative value as it appears to be based on an incorrect factual premise that the Veteran had an in-service neck injury when, in fact, he did not. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). At most, the statement merely supports that the Veteran's back treatment began as early as the 1990s, which is still several decades after service. The Board has considered the Veteran's statements regarding in-service duties he feels caused a chronic back condition as well as his contentions of back pain since service. It is noteworthy, however, that these statements have been highly inconsistent. For example, while he has contended consistent back pain since service, it is unclear whether he relates this to a lumbar spine injury or a neck injury. Neither such injury is confirmed in his records. Interestingly, according to a medical note in December 2018, the Veteran informed his primary care physician that he had been experiencing spinal pain since he was a child. The Veteran's entrance examination, on the other hand, is silent for any pre-existing conditions or any complaints of back pain. Again, there is only confirmation of a groin injury in service related to lifting chairs, but there is no indication the Veteran developed a back condition or complained of back pain related to this groin strain. The Veteran claims he was "held over" in a Navy hospital and, at that time, he had musculoskeletal pain in his neck and back. Yet, these hospitalization records contain no indication the Veteran ever made such complaints. The Veteran was afforded a VA examination in 1969 shortly after separation from the military and, again, he denied any musculoskeletal symptomatology. The Board finds it unpersuasive that the Veteran would have had chronic pain with the opportunity to obtain treatment and yet remain silent. The Veteran is certainly competent to report on his pain through the years and in-service events. In this case, however, given the inconsistency of the Veteran's report of pain, injury, and historical context, the Board finds the statements to be of less credible value. See Rucker v. Brown, 10 Vet.App. 67, 74 (1997) (distinguishing between competence and weight and credibility and explaining that the "former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board may dismiss competent layperson testimony if it is found to be mistaken or not credible. McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006). Indicia of a lack of credibility may include conflicting statements and the potential bias of the information source. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet.App. 341, 345 (1999). In measuring the credibility of layperson testimony the lack of contemporaneous medical evidence is also relevant, however, the mere lack of such evidence may not be the sole basis for discrediting the testimony. Buchanan, 451 F.3d at 1337. In this case, while the Veteran's lay statements have been considered, in light of the inconsistencies outlined above as to the nature of the in-service injury and the continuity of the symptoms involved, the Board finds the objective evidence to be of more probative value. The chiropractor's statement, noting the Veteran's in-service injuries, moreover, is also not probative because it was based, in large part, on the Veteran's lay statements, which the Board finds not credible and inconsistent with the service treatment records and other objective evidence of record. See Reonal, 5 Vet.App. at 460-61. The most reliable evidence, those medical records made contemporaneously with treatment, indicate no in-service neck injury or pain, no in-service back injury or pain, and that the Veteran's in-service hospitalization was not for any physical injury or incident, but rather for mental health reasons. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by a veteran). The Board concludes that, while the Veteran has a current diagnosis of lumbosacral strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The preponderance of the evidence is against the claim for service connection for lumbosacral strain and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Boivin, 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.