Citation Nr: 21029718 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-40 855 DATE: May 14, 2021 ORDER Entitlement to service connection for low back pain is denied. FINDING OF FACT The most probative evidence fails to demonstrate that the Veteran's current low back disability is due to a disease or injury incurred during active duty for training (ACDUTRA) or an injury incurred in the line of duty during a period of inactive duty training (INACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for low back pain have not been met. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to November 1979. The record demonstrates that the Veteran served in the Air Force Reserve from November 1979 to April 1986, and again from February 1988 to December 1996. The Veteran served in the Air Force National Guard from April 1986 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2018, the Veteran presented sworn testimony before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. The RO last considered this claim in a February 2021 Supplemental Statement of the Case. Since then, the only additional pertinent substantive evidence added to the electronic claims file was submitted by the Veteran's attorney, without a request for initial RO consideration. Accordingly, the Board may review this evidence in the first instance and proceed with its appellate review. See 38 U.S.C. § 7105(e) (2018). This matter was previously before the Board in March 2019 and December 2019, where the claim was remanded for the RO to verify all periods of ACDUTRA or INACDUTRA, with appropriate notice to the Veteran if the periods could not be verified. In March 2021, the Veteran's attorney submitted several documents from the Air Force Reserve Personnel Center at Buckley Air Force Base which provided specific information regarding the Veteran's periods of ACDUTRA or INACDUTRA. In a March 2021 appellate brief, the Veteran's attorney argued that the RO did not comply with the Board's March 2019 and December 2019 remand directives, and implied that the matter should be remanded to the RO for further compliance, relying on the United States Court of Appeals for Veterans Claims' (Court) decision in Stegall v. West, 11 Vet. App. 268 (1998). However, as discussed further below, the military personnel records submitted by the Veteran's attorney in March 2021 are sufficient to corroborate the Veteran's allegations regarding suffering a low back injury during a period of ACDUTRA in 1985 and during a period of INACDUTRA in 1991. In essence, this new submission cures any errors on the part of the RO in failing to verify the Veteran's periods of ACDUTRA or INACDUTRA during the relevant periods in contention. To remand for the RO to strictly comply with the Board's previous remands, when the Veteran, himself, has submitted the evidence requested in the remand directives, would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA and additional delay of the adjudication of the claim, with no additional benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In light of the above explanation, the Board shall proceed with adjudication of the claim on the merits. At the August 2018 Board hearing, the Veteran alleged that he injured his back in 1985 during a period of ACDUTRA. See August 2018 Board Hearing Transcript at pp. 16-17 (alleging that he initially hurt his back in 1985 during active duty for training while pushing cargo/boxes and lifting 5,000 lb. aircraft chains). He also testified that he injured his back in 1991 during a period of INACDUTRA. See August 2018 Board Hearing Transcript at pp. 13-16) (alleging that his back went out while trying to reach his identification card in 1991 when he reported for drill (INACDUTRA)). Lastly, the record contains a SF-93, Report of Medical History, dated in December 1991, documenting the Veteran's subjective reports of "recurrent back pain," with the evaluating clinician charting that the Veteran suffered a lower back strain in 1990 while pushing a cart. The injury was treated with muscle relaxers and occasional medications, and the clinician noted that it had fully resolved with NCNS (no complications, no sequelae). A Report of Medical Examination completed the same day listed the spine as clinically normal. 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). Active military, naval, or air service includes active duty as well as any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). The question for the Board is whether the Veteran has a current low back disability that resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The Board concludes that, while the Veteran has a diagnosis of a current back disability, described in his private treatment records as "back problem," the evidence fails to probatively establish that the current back disability began during active service, or is otherwise related to an in-service injury, event, or disease. In particular, the evidence does not probatively establish that the Veteran's current low back disability resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. As noted above, the Veteran alleged at the Board hearing that he initially injured his low back in 1985 while at "summer camp" during a period of ACDUTRA. He testified that he was pushing cargo/boxes and lifting 5,000 lb. aircraft chains when his back started to hurt. The Veteran did not seek treatment for his claimed injury, and he did not report the accident/injury to his leadership. The military personnel records submitted by the Veteran's attorney in March 2021 confirm that the Veteran served on 15 days of ACDUTRA and 46 days of INACDUTRA between November 1984 and November 1985. In particular, the Veteran served on his ACDUTRA annual tour from September 14, 1985 to September 28, 1985, and thus, the Board assumes that this is the time period when the Veteran was injured, as referenced in his Board hearing testimony. Regarding the purported injury to the low back in 1990, as documented in the December 1991 SF-93, the Veteran did not provide any additional information or testimony on whether this injury occurred during a period of ACDUTRA or INACDUTRA. Nevertheless, the military personnel records submitted by the Veteran's attorney in March 2021 confirm that the Veteran served on 16 days of ACDUTRA and 48 days of INACDUTRA between November 1989 and November 1990, as well as 16 days of ACDUTRA and 48 days of INACDUTRA between November 1990 and November 1991. Thus, it is plausible that the Veteran's reported injury could have occurred during a period of INACDUTRA or ACDUTRA in 1990, although this remains unverified in the record. Aside from the information contained in the SF-93, the Veteran provided no further clarifying information regarding the nature of this alleged 1990 low back injury. Lastly, the Veteran testified that he suffered a final injury to his low back during an unidentified period of INACDUTRA in 1991. He stated that he presented for drill weekend and because of Desert Storm, the base was closed, with a 100 percent identification check at the entrance. While reaching for his identification, the Veteran injured his low back. He stated that he reported the injury to his commander, who gave him the choice to go home and rest for the day, or complete paperwork and be subject to limited duty. As the Veteran was not overly worried, he went home. He stated that his back hurt off and on for 3 days, but he never sought in-service treatment. The military personnel records submitted by the Veteran's attorney in March 2021 confirm that the Veteran served on 16 days of ACDUTRA and 48 days of INACDUTRA between November 1990 and November 1991, and 43 days of ACDUTRA and 46 days of INACDUTRA between November 1991 and November 1992. The military records also document specific dates of INACDUTRA during this time period; however this is unhelpful, as the Veteran was unable to pinpoint which drill weekend the injury was alleged to have occurred. Thus, it remains plausible that the injury occurred during any drill weekend identified in the military personnel records received in March 2021. Further evidentiary development would be futile, as the Veteran testified that this injury was never formally documented by his commander. The Veteran is competent to report his recollection of injuring his low back in 1985 during a period of ACDUTRA, and injuring it again in 1991 during a period of INACDUTRA, as this is within the realm of his personal knowledge and experience. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran's service records do not corroborate these claims, the Board finds no reason to doubt the credibility of the Veteran's lay assertion that he injured his low back during these periods of his Air Force Reserve service. The Board notes the Veteran's assertions that his current low back disability is the report of his alleged injuries during his Reserve service. However, as a layperson not shown to possess any pertinent medical training or expertise, the Veteran is not competent to render an opinion on a complex medical matter, such as the etiology of his current low back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Consequently, to the extent that the record contains the Veteran's lay assertions relating his current low back disability to the alleged injuries during his Reserve service, these statements are not competent evidence and are afforded no probative value in this decision. In the September 2017 VA form 21-0958, Notice of Disagreement, the Veteran alleged that he has experienced stiffness in his low back ever since the 1990 low back injury documented on the December 1991 SF-93. At the August 2018 Board hearing, the Veteran also alleged continuity of symptoms since his alleged Reserve service injuries. He testified that his low back condition has gotten "worse and worse and worse and worse" over the years. See August 2018 Board Hearing Transcript, p. 15. The Veteran is competent to report continuous symptoms since his alleged injuries, as these are within his personal perception, see Layno, supra, but in this case, the Board does not find the Veteran's assertions to be credible based on the current evidentiary record. As noted above, despite the Veteran's reports of continuous symptoms, his low back was determined to be clinically normal at the December 1991 service examination. Private treatment records from the late 1990s through the 2000s are entirely negative for complaints of low back pain or related symptoms. In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Horn v. Shinseki, 25 Vet. App. 231, 239 n. 7 (2012) (recognizing that the absence of evidence cannot be substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact"); AZ v. Shinseki, 731 F.3d 1303, 1311, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded"). The Board has reviewed private cardiology records from the late-to-mid 1990s, which are negative for low back complaints. However, given the targeted nature of specialized cardiology treatment, the Board does not find it reasonable to assume that the Veteran's cardiologist would have documented complaints involving the spine in cardiology treatment records. Thus, the absence of low back symptoms in these private cardiology records is not probative. However, the record contains several primary care treatment records from Dr. JP from the late 1990s to the late 2000s, and these records contain no complaints of low back symptoms. In several of Dr. JP's treatment records, it was indicated that the Veteran was seen for "annual exam" or "annual check up," and several of his reported chronic complaints/illnesses, such as hypertension, anxiety, glucose intolerance, and cough/congestion, were documented and assessed. He also occasionally reported musculoskeletal symptoms, such as ankle stiffness. See November 2009 private treatment record. Given the Veteran's propensity to be seen for chronic illnesses and routine medical complaints, including musculoskeletal complaints, it is most reasonable to assume that had the Veteran experienced continuous low back symptoms, as he now alleges, he would have reported such symptoms to Dr. JP and they would be noted in the private treatment records. The Board finds the absence of such expected evidence to be probative in this determination and weighs against the credibility of the Veteran's lay reports regarding continuous low back symptoms since his reported injuries. As it currently stands, the electronic claims file does not document post-service complaints of low back symptoms until 2013nearly 22 years after the Veteran's last claimed in-service low back injury. The Court has indicated that normal findings during service (i.e., the December 1991 Report of Medical Examination showing a clinically normal spine), as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). A complete review of the electronic claims file reveals evidence of a current low back disability, and as stated above, the Board finds no reason to discount the Veteran's lay statements regarding his alleged injuries during his Reserve Service. However, the record is devoid of any competent medical nexus evidence linking the Veteran's current low back disability to his claimed military injuries, and on this basis, the claim fails. The Board acknowledges that the Veteran has never been afforded a VA examination to assess the etiology of his current low back disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court set forth the criteria considered when determining whether a VA examination is necessary to assist in establishing service connection. The Court held that a VA examination is warranted when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service...; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Id. at 81. A review of the evidence shows that the third McLendon element has not been satisfied in this case. There is no indication that the Veteran's current low back disability is associated with his claimed injuries during his Reserve service, beyond the Veteran's generalized and conclusory lay statements alleging such an association. Moreover, his lay reports of continuous symptoms since his in-service injuries has been determined to lack credibility based on the current evidentiary record. As discussed in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), allowing VA examinations when veterans provide conclusory and generalized statements that their service caused their present symptoms runs contrary to the carefully drafted statutory standards governing the provision of medical exams, as nearly all veterans could make such a statement. As the requisite McLendon elements have not been met, VA does not have a duty to assist the Veteran in obtaining a VA examination/medical opinion in this matter. In sum, the greater weight of the evidence is against finding that the Veteran's current low back disability resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The necessary elements of service connection have not been satisfied. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the Veteran's appeal seeking service connection for low back pain must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.