Citation Nr: 21031045
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 15-17 688
DATE: May 20, 2021

ORDER

Entitlement to service connection for a lower back disorder is denied.

FINDING OF FACT

1. The Veteran had acute back pain prior to service in 1969.

2. A medically chronic lower back disorder did not clearly and unmistakably preexist the June 1969 to October 1969 period of service.

3. A lower back disorder did not manifest during the June 1969 to October 1969 period of service and arthritis was not manifest within one year of separation of such service. A lower back disorder is not otherwise attributable to this period of service.

4. A lower back strain clearly and unmistakably preexisted the March 1975 to July 1975 period of service.

5. The evidence clearly and unmistakably establishes that a lower back strain did not increase in severity during service.

6.  Lumbar disc disease and or arthritis were not manifest during service and are not otherwise attributable to service.

7. The second period of service involved less than 90 days.

CONCLUSION OF LAW

1. A medically chronic lower back disorder did not clearly and unmistakably preexist the Veteran's June 1969 to October 1969 period of service. 38 U.S.C. §§ 1111, 1110; 38 C.F.R. §§ 3.102, 3.303.

2. A lower back disorder was not incurred in or aggravated during the June 1969 to October 1969 period of service and arthritis may not be presumed to have been incurred therein.  A low back disorder is not otherwise attributable to that period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. A lower back disorder manifest by strain clearly and unmistakably preexisted the March 1975 to July 1975 period of service.  There is clear and unmistakable evidence that the disability was not aggravated during service; the presumption of soundness is rebutted. 38 U.S.C. §§ 1101, 1111, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303.

4. A lumbar disc disease and/or arthritis was not incurred in or aggravated by the March 1975 to July 1975 period of service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty for training in the Army from June 1969 to October 1969 and had a period of service in the Air Force from March 1975 to July 1975.  The AOJ appears to have granted service connection for disability based upon the first period of service.  As such, such service is Active Service and presumptions apply.  To the extent that that the AOJ marks the service as Active Duty, we leave that to the AOJ.

In December 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Remand (JMR). In the JMR, both parties agree that "remand is required because the Board did not adequately address whether Appellant's lay statements that he experienced back pain during service after lifting heavy artillery equipment are credible." The JMR noted that "the fact that there are no contemporaneous medical records related to an in-service injury does not negate the credibility of Appellant's lay statements that he experienced back pain after lifting heavy artillery equipment in service." Finally, the JMR noted that "If the Board determines that Appellant's lay statements regarding experiencing back pain after lifting heavy artillery in service are credible, it should re-evaluate the probative value of [Dr. T.D.'s] January 2020 medical opinion. If the Board concludes that an additional VA medical opinion is needed to address the issue of nexus, one should be obtained."  See Joint Motion for Remand, dated December 7, 2020.

1. Entitlement to service connection for a lower back disorder

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service).

To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 or aggravated during service -the so-called 'nexus' requirement." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

As a preliminary matter, in order to qualify for VA disability compensation, a claimant must be a Veteran. Service on active duty alone is sufficient to meet the statutory definition of Veteran, but service on active duty for training without more will not suffice to give one "veteran" status. An individual who served on active duty for training will be considered a "veteran" if that individual suffers from a disease or injury incurred or aggravated in line of duty during the period of active duty for training. 38 U.S.C. § 101(24)(B). In the case currently before the Board, the appellant is service connected for hearing loss and tinnitus. 

The Agency of Original Jurisdiction noted that the appellant had served from June 9, 1969 to October 8, 1969, and from April 19, 1975 to July 13, 1975, and attributed hearing loss and tinnitus attributable to noise exposure during both periods of service. As such, the Board notes that the appellant is entitled to Veteran status the periods of June 9, 1969 to October 8, 1969, and April 19, 1975 to July 13, 1975.

Arthritis is considered an organic disease of the nervous system, which is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a).

"For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b).

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The defect, infirmity, or disorder must be detected and noted at entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement or opinions. 38 C.F.R. § 3.304(b); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. See id.

A. Period of service from June 1969 to October 1969

The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports" and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). 

Here, the January 1969 pre-enlistment Report of Medical History shows the Veteran reported a history of backache associated with work. A backache associated with work was also recorded in the January 1969 pre-enlistment medical examination. Only a history of backache was "noted" on the examination report. The Veteran's spine and musculoskeletal system were found normal upon examination, no problems with his back muscles or spine were found, and the Veteran was qualified for service. The Board concludes that a back disability was not "noted" at the time of entry under 38 C.F.R. § 3.304(b). Only a history of a back pain with no related pathology was noted. The Veteran is entitled to a presumption of soundness as to his back for the service period from June 1969 to October 1969.

Because the Veteran is entitled to a presumption of soundness, the Board must determine whether there is clear and unmistakable evidence that a back disorder (1) preexisted service and (2) was not aggravated during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); Horn, 25 Vet. App. at 234. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability both preexisted service and was not aggravated by service.

The Veteran reports that he had pain in his back a few weeks prior to the pre-enlistment examination after lifting a box while working at a grocery store. See September 2015 Veteran's Statement. He has also stated that the January 1969 examiner told him he had back muscle spasms. See May 2018 Board Hearing Transcript; January 2020 Dr. T.D. Medical Opinion. The Veteran is competent to report that he had back pain prior to service and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). His statements are credible evidence that he had low back pain prior to service.

There are medical opinions on the issue. The November 2019 VA examiner determined the evidence shows a progression of back pain, intermittent in nature from before service, and progressing in a natural pattern regardless of the Veteran's service. See November 2019 VA Examination Report. However, other examiners have opined that a back disorder did not preexist his service or that the Veteran's pre-service backache is unrelated to his current back disorders. The October 2015 VA examiner only determined that the Veteran could have had a preexisting back condition before service, not that the Veteran's back disorders "clearly and unmistakably" preexisted his service. See October 2015 VA Examination Report. The August 2019 VA examiner determined that there is no clinical evidence the Veteran had a definitive or diagnosed back disorder prior to enlistment. See August 2019 VA Examination Report. 

The Veteran has submitted three private nexus opinions dated January 2020. Each opinion acknowledges the Veteran reported back pain prior to service. However, the January 2020 opinion from Dr. T.D. attributes the cause of the Veteran's current back disorders to an in-service howitzer accident, lifting 100-pound howitzer projectiles during his first period of service, and building pallets during his second period of service. See January 2020 Dr. T.D. Opinion Letter. The other two letters from Dr. J.N.C. and Dr. G.V. concur with Dr. T.D. and note that while the Veteran had back pain prior to service, the in-service incidents caused the Veteran's back injuries. See January 2020 Dr. J.N.C. Opinion Letter; January 2020 Dr. G.V. Opinion Letter. 

Clear and unmistakable evidence is an onerous standard. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e. it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board finds that there is not clear and unmistakable evidence that the Veteran's low back disorders existed prior to his June 1969 to October 1969 service. Service records show he had an incident of low back pain prior to service, and the Veteran reports he was told he had a back spasm. 

However, actual pathology (diagnosis) was not established prior to service and the entrance examination disclosed that the relevant system was normal.  The fact that he had an acute episode of back pain prior to service falls far short of establishing a medically chronic disability prior to service or during service.  

There are conflicting examination reports regarding whether his pre-service backache is related to his current back disorder, and one VA examiner determined no back disorder preexisted service. The evidence does not reach the level of clear and unmistakable. The presumption of soundness has not been rebutted, and the Veteran is presumed to have been sound at the time of entry into active service.

It does not necessarily follow, however, that the unrebutted presumption of soundness will lead to service connection. The Veteran must still demonstrate a current disability and a nexus between his current disability and an injury or disease in service. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007). 

Accordingly, the Board now turns to the question of whether a back disorder is related to service. The Board has carefully reevaluated the evidence and still finds that a preponderance of the evidence of record is against finding that the Veteran's current back disorders are related to his June 1969 to October 1969 service.

Private treatment records show the Veteran had a CT scan in June 2011 CT that revealed degenerative disc change and osteophyte formation and degenerative changes at the sacroiliac joints. A February 2012 CT scan showed degenerative disc disease at the L5-S1 vertebrae. In March 2015 the Veteran complained of low back pain with radiating right leg pain. He dated the onset of his pain to his military service and stated that moving artillery pieces had caused his back pain. His private physician assessed him with degenerative disc disease with foraminal stenosis causing right lower extremity radiculopathy. See July 2014 Imaging Report. 

Service treatment records do not show complaints or treatments of back pain, injuries, or diseases. There were no positive findings on the January 1969 pre-enlistment examination report and the Veteran was declared physically qualified for service. The Veteran's spine was evaluated normal on his September 1969 separation examination. He denied a history of back trouble of any kind in a September 1969 Report of Medical History.

The Veteran's spine was abnormal in an April 1974 commission examination. The Veteran referred to a back injury in January 1974 that was treated by chiropractic manipulation and reported a full recovery with occasional mild discomfort. The examiner determined that the Veteran's back stiffness was consistent with a recent muscle strain. See April 1974 Report of Medical Examination.

The Veteran was given periodic physical examinations when he was in the Air Force Reserves. His spine was evaluated clinically normal in Reports of Medical Examination dated August 1982, April 1987, June 1991, and May 1996. The Veteran denied a history of recurrent back pain in April 1987, June 1991, and May 1996 Reports of Medical History. The May 1996 examination report shows decreased sensation in the Veteran's right foot. 

The Veteran has submitted lay statements supporting his claim for service connection. He states he began noticing pain in his back during basic training in 1969 and that the pain got worse a result of jumping, military drop and rolls, and dropping off monkey bars during training. See September 2015 Letter. Regarding his Army service, the Veteran reports that he was responsible for maintaining and moving various artillery pieces, including howitzers, and carrying and loading howitzer projectiles. He states that his back hurt throughout this period of service and that the pain he had during boot camp was worsened by the repetitive lifting, turning, and twisting he did as part of his job. See September 2015 Letter. The Veteran has also described an accident that occurred during this period of service when his unit was moving a howitzer that became unstable, causing it to fall toward the Veteran. He states that he tried to stop the howitzer from tipping toward him and the load caused severe, searing pain in his lower back. He reported the incident to a field medic, who did not record the incident, and told the Veteran he had a back strain. See January 2020 Letter from Dr. T.D. 

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran is competent to report what he experiences, including the onset of his back pain, back injuries he sustained, and that he had back pain during his service. He is also competent to report that he has had back pain and problems since service. Additionally, the Veteran is competent to report that he was told by doctors and field medics that he had back spasms and back strains during service. See Jandreau, 492 F.3d at 1377.

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

In that regard, the Board finds the contemporaneous medical evidence of record more credible than the Veteran's after the fact lay statements of in-service symptoms. The Veteran had normal back evaluations at separation. Although he now reports an onset and ongoing symptoms during this first period of service, the service treatment records are silent for back pathology, the separation examination was normal and he specifically denied a history of back trouble at separation.  The September 1969 document warned the appellant that false or dishonest statements could be punishable and he certified and that the information provided was true and complete to the best of his knowledge.  

The Board finds that his in-service denial, certified at the time, is far more credible and probative than remote statements advanced in support of a claim for monetary benefits.  The remote lay recollections are not credible.  His denial in 1969 was fully consistent with the silent treatment records and the normal separation examination. 

Further documentation affirms this finding.  The Board notes the Veteran's spine was assessed abnormal in an April 1974 commission examination, but the Veteran attributed this to an injury he sustained in January 1974, years after this first period of service ended. That injury was attributed to a muscle strain rather than any degenerative process and x-rays were negative. The examiner at that time commented that the current finding was consistent with a recent muscle strain.  

The documents around the 1974 evidence again establishes that there was a recent incident, rather than symptoms dating back to the first period of service.  Such evidence completely supports that the documents and his denial of pathology in September 1969 were credible and his statements in 1974 refect a recent onset.  Furthermore, spine was found clinically normal upon examination in August 1982, April 1987, June 1991, and May 1996. He denied recurrent back pain in April 1987, June 1991, and May 1996 Reports of Medical History. 

The Board reiterates the Veteran is competent to report his experiences. However, his statements of a 1969 onset and on-going symptoms are inconsistent with contemporaneous normal spine examinations and his repeated denial of back issues related to service in 1969. The Board finds the Veteran's recent representations of ongoing lower back pain since 1969 are outweighed by the contemporaneous medical and lay evidence of record. This is not a case in which the record is merely silent regarding onset of lumbar pathology. Rather, the Veteran explicitly denied recurrent back pain and problems in Reports of Medical History and continued to deny recurrent back pain in subsequent examinations in September 1969, 1987, 1991, and 1996. His recent reports of 1969 in-service onset and ongoing symptoms are not credible.

Specific to the requests made in the JMR, the Board has reviewed the Veteran's testimony regarding his lay statements that he experienced back pain during service after lifting heavy artillery equipment. The Board finds his statements regarding this back pain are not credible. 

The Veteran had a back conditions examination in April 2015. He was diagnosed with mechanical back pain syndrome, facet joint arthropathy, degenerative joint disease of the lumbosacral spine, degenerative disc disease, spondylolisthesis, spinal stenosis, and intervertebral disc syndrome. The Veteran reported he first noticed his symptoms in the 1960s. See April 2015 Examination Report. The Veteran was afforded a VA back conditions examination in September 2015. He was diagnosed with intervertebral disc syndrome and vertebral dislocation. The Veteran reported an onset of the symptoms as 1969 and that his back disorders began as the result of military training and lifting military equipment. A medical opinion DBQ was completed in October 2015 and the reviewing examiner determined the Veteran's current lower back disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, given reoccurring back pain existed prior to service, the Veteran's current back condition is less likely than not related to an in-service injury. She further stated the Veteran's reported backpain on his enlistment examination could mean he had a preexisting back condition which was not diagnosed prior to entering service. See October 2015 DBQ Medical Opinion.

A VA medical opinion DBQ examination was completed in August 2019. After reviewing the Veteran's records, the examiner determined that the Veteran's back condition was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner explained that service treatment records do not show evaluation of, treatment for, or a diagnosis of any back condition and there is no documentation of a back injury during the periods from June to October 1969. The examiner acknowledged "backache associated with work" was noted on the enlistment examination without any details or other information provided and that the April 1974 examination indicated some stiffness compatible with a recent muscle strain. Periodic physical examinations from 1987, 1991, and 1996 did not show any spine or back issues.

Regarding the report of back pain on the enlistment examination, the examiner cited medical literature suggesting "84 percent of adults in the general population have low back pain at some time in their lives" and that the vast majority of patients seen for low back pain will have nonspecific low back pain that cannot reliably be attributed to a specific disease process or to spinal pathology. The examiner determined that there is no clinical evidence that the Veteran had a definitive or diagnosed back disorder prior to enlistment and that there is no evidence of any aggravation of a chronic back condition during service. Regarding the Veteran's current back disorders, the examiner explained that degenerative disc disease and degenerative joint disease most commonly result from chronic wear and tear which occurs over time as a result of normal physical activities over the age of 30. The examiner concluded that the Veteran's imaging studies are consistent with age related degenerative changes and would not be unexpected in another male of the Veteran's age who had not served in the military.

The Veteran was given another VA back examination in October 2019. The examiner diagnosed lumbosacral strain in 1969 and current degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported that he developed immediate pain during training in 1969, that he was diagnosed with a back strain, and that he continued to have increased back pain throughout his service. The examiner determined that a back disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that while the Veteran reported back pain on the January 1969 and April 1974 examinations, he did not report back pain in April 1987, June 1991, or May 1996. The examiner determined the "baseline" was 1996, "i.e. no pain." The examiner agreed that increased physical demands on the back may produce back pain or exacerbate the condition but determined the Veteran's service did not cause his back pain because he had back pain prior to service, reasoning that he would expect complaints of back pain in 1987, 1991, and 1996 if the Veteran's service exacerbated the condition beyond its natural progression. The examiner noted a decrease in vibratory sensation on the Veteran's right foot in 1996, but there were no other neuropathic findings and the Veteran did not report back pain. The examiner concluded the evidence showed back pain progressing in a natural pattern regardless of military service. See October 2019 VA Examination.

In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

As explained above, the Board has determined that the Veteran's lower back disorders did not clearly and unmistakably preexist his service. As such, the opinions rendered by the VA examiners that the Veteran's back disorders existed prior to service are of little probative weight. As noted by one examiner, a person can have back pain without an identified underlying pathology.  The Board finds the August 2019 VA opinion probative. The examiner explained that there is no clinical evidence that the Veteran had a definitive or diagnosed back disorder prior to enlistment and, as such, there is no evidence of any aggravation of a back condition during service. The examiner also explained that the service treatment records do not show evaluation of, treatment for, or a diagnosis of any back condition. Periodic physical examinations from 1987, 1991, and 1996 did not show any spine or back issues. Regarding the Veteran's current back disorders, the examiner explained degenerative disc disease commonly results from chronic wear and tear which occurs over time as a result of normal physical activities with age and concluded that the Veteran's imaging studies are consistent with age related degenerative changes. Finally, the examiner opined that it is less likely than not that the Veteran's claimed back disorders were incurred in or caused by his active military service in 1969 and 1975. This conclusion was provided based on a full discussion of the relevant facts and records and includes a well-supported rationale that is consistent with the facts established in the record.

The Veteran has submitted private medical opinions regarding whether his current lower back disorders are related to service.

A July 2015 private nexus opinion from a Dr. H.M. states that his back disorders are as likely as not caused by or aggravated by his military service. Dr. H.M. explained that the Veteran reported he had lower back discomfort while doing duties as assigned to his military service which involved recurrent and repetitive lifting, moving, and transporting projectiles. Dr. H.M. determined the April 1974 back stiffness was more than likely an aggravation of the Veteran's prior back pain and that the May 1996 report of decreased sensation in the Veteran's right foot suggests he had radiculitis associated with his back. Dr. H.M. concluded the evidence was consistent with recurrent low back pain secondary to the Veteran's in-service job requirements and that the Veteran's lower back conditions were at least as likely as not related to his active duty service. See July 2015 Private Nexus Opinion.

An August 2016 private opinion from Dr. G.V. states that after reviewing the Veteran's medical history related to his lower back, it is more than likely caused by the heavy lifting the Veteran did in 1969 and 1975. Dr. G.V. explained that the Veteran has a small frame and that working on a 12,800-pound howitzer and lifting pallets weighing 290 pound can be considered to have been a major additive to his lower back condition. Dr. G.V. further noted that the Veteran held white collar jobs outside of his miliary service and that he felt confident in saying the heavy lifting in the military is more likely than not the reason for the Veteran's back condition. See August 2016 Dr. G.V. Medical Opinion. 

In September 2016 the Veteran submitted a letter from C.P.S., a private physician's assistant, stating that lifting a howitzer and pallets during the Veteran's service were contributing factors in his current back injury and that his back injuries were more likely than not related to lifting heavy things during service. See September 2016 Letter from C.P.S. 

In January 2020 the Veteran submitted three letters from private doctors to support his claim.

The first letter is from Dr. T.D. who concluded that the Veteran's current back problems were more likely than not caused by or aggravated by his service in the Army and Air Force. Dr. T.D. stated the Veteran did not have significant strenuous physical activity, lifting, or significant injuries to his back after service and determined the initial event that precipitated the Veteran's back pain occurred during his training in 1969 when he and some other men were moving a howitzer, after which the Veteran reported constant chronic back pain since. He also noted the Veteran regularly lifted artillery projectiles, performed man carries, and engaged in other strenuous activities from June to October 1969. Dr. T.D. determined that even if the Veteran had some back pain prior to service, he did not have any disabling back pain until the howitzer accident. Dr. T.D. opined heavy manual labor the Veteran performed from April to July 1975 accelerated his degenerative spine diseases. Dr. T.D. explained the decreased vibratory sensation in the Veteran's right foot in 1996 was not a normal examination finding for a man the Veteran's age in the setting of having complained of multiple back injuries in the military, supporting accelerated degeneration of his back disorder. 

The second letter is from Dr. J.N.C., who concurred with Dr. T.D.'s findings. He stated the Veteran's report of back pain prior to enlistment and a lack of complaints of pain on subsequent examinations was not factual evidence of no back issues caused by service, since recovery time eliminates pain and suffering. Dr. J.N.C. noted that an Air Force physician diagnosed the Veteran with back spasms and explained that the Veteran did not go to sick call because he was diagnosed. Dr. J.N.C. acknowledged the Veteran reported lifting howitzer, ammunition, and pallets, and determined it is clear and obvious that lifting items weighing as much as what the Veteran lifted will cause injury. He concluded the Veteran's back condition was more likely that not aggravated by his service. 

The third letter is from Dr. G.V. and concurs with Dr. T.D.'s conclusions. Dr. G.V. opined that the Veteran's current back issues were aggravated by his service in the military being exposed to and working with the howitzer, the howitzer projectiles, and building and lifting pallets. Dr. G.V. stated these events were enough to cause injury to the Veteran's back. Dr. G.V. further stated that the equipment the Veteran worked with is exceedingly heavy and more likely than not aggravated his back conditions.

Again, the Board has determined that the Veteran's current back disorder did not clearly and unmistakably preexist this period of service. As such, medical opinions stating only that the Veteran's back disorder was aggravated by service are of little probative value. Dr. J.N.C. and Dr. G.V. concluded that a preexisting disability was aggravated. These opinions are of limited probative value. 

The September 2016 nexus letter from the Veteran's private physician's assistant is also of limited probative value as it is conclusory and is not supported by sufficient rationale. See Nieves-Rodriquez, 22 Vet. App.at 302, 304. 

Per the December 2020 JMR, the Board, was requested to review the probative value of Dr. T.D.'s January 2020 medical opinion. The Board concludes that the probative value of Dr. T.D.'s January 2020 medical opinion has little merit since it is based upon an inaccurate factual predicate.  We find the lay account of inservice onset or continuation of back to be not credible.  A medical opinion based upon an inaccurate factual predicate is equally not credible. 

Dr. T.D.'s January 2020 opinion states that the Veteran's current back problems were more likely than not caused by his service. However, Dr. T.D.'s opinion is based heavily on the Veteran's lay statements regarding his back pain during his service. As the Board has explained, the Veteran's consistent contemporaneous denials of back pain when given examinations and in Reports of Medical History are more credible than the Veteran's remote lay statements. Additionally, Dr. T.D.'s opinion does not address the normal clinical evaluations in August 1982, April 1987, June 1991, and May 1996. The Veteran also did not report back pain in April 1987, June 1991, and May 1996 Reports of Medical History. The Board still finds Dr. T.D.'s opinion to be of little probative value.

The evidence establishes that the Veteran had back pain prior to service. No specific disease or residual of injury was identified prior to service.  Low back pathology (disease or injury) did not clearly and unmistakably pre-exist service. The service clinical records during the 1969 service were silent, the separation examination was normal, and he denied a relevant history at separation in 1969.

He reported that he had hurt his back in January 1974, years after this period of service ended. The August 2019 examiner's opinion is the most probative opinion of record and suggests that Veteran's back disorder amounts to age related degenerative changes unrelated to his service. Furthermore, the remote identification of pathology is against finding that the Veteran's lower back disorders are related to an in-service disease or injury. There is no evidence that the Veteran's arthritis manifested within one year of this period of service. 38 C.F.R. § 3.303(b). A chronic disease was not "noted" during service or within one year of separation and his contemporaneous reports to medical examiners show he did not have continuity of symptomatology following service.

Considering the above, the evidence is against finding the Veteran's back disorder is due to his June 1969 to October 1969 period of service. The preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, service connection is denied.

B. Period of service from March 1975 to July 1975

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 

The Veteran was given a commission examination in April 1974 where his spine was assessed as abnormal. The examiner noted a normal range of motion with some stiffness in the erector spinal muscles on extension, flexion, and bending. The Veteran reported he had injured his back in January 1974 and that he was being treated by a private chiropractor. The examining physician noted that the stiffness was compatible with a muscle strain. See April 1974 Commission Exam Report.

The Board finds a lower back disorder, consistent with a muscle strain, was noted upon examination prior to the March 1975 to July 1975 period of service. The presumption of soundness in regard to strain does not apply to this period of service. See 38 U.S.C. § 1111; 38C.F.R. §3.304(b).

The remaining issue is whether the preexisting lower back disorder (strain) was aggravated during service. Aggravation is presumed under 38 U.S.C. § 1153 where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b).

Regarding his Air Force service, the Veteran states he was responsible for loading 463L pallets that weighed 290 pounds and were built up to 10,000 pounds to be loaded onto aircraft. See May 2018 Board Hearing Transcript; September 2015 Statement. He reports he lifted and loaded pallets for 12-hour shifts, six days per week and that his back pain worsened, but he did not seek treatment because he had been told he had a back strain. See September 2015 Statement. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran is competent to report that he low back pain during this period of service.  However, he is not a credible historian.

There are conflicting medical opinions regarding whether a preexisting back disorder was aggravated by this period of service. 

The August 2019 VA examiner determined a back condition was not aggravated beyond its natural progression by service. The October 2019 VA examiner determined a back disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. 

The August 2016 private opinion from Dr. G.V. states the Veteran's lower back disorders are more than likely caused by the heavy lifting the Veteran did in 1969 and 1975. See August 2016 Dr. G.V. Medical Opinion. As noted above, the Veteran submitted three letters from private doctors in January 2020. Dr. T.D. concluded that the Veteran's current back problems were more likely than not caused by or aggravated by his service in the Army and Air Force. Dr. J.N.C. stated it is "clear and obvious" that lifting items weighing as much as what the Veteran lifted will cause a back injury. He concluded the Veteran's back condition has more likely that not been aggravated by his active duty in the Air Force. Dr. G.V. concurred with Dr. T.D.'s conclusions and determined the Veteran's current back disorders were aggravated by building and lifting pallets during service.

For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. 

The July 2015 private opinion from Dr. H.M. does not address the Veteran's 1975 service in the Air Force during this period and instead focuses on the Veteran's duties during his period of ACDUTRA in the Army in 1969. The opinion is of minimal probative value. 

The August 2016 opinion from Dr. G.V. states that the Veteran's back disorder is more than likely caused by the heavy lifting he did in 1975. However, Dr. G.V. did not address the Veteran's post-service examinations while he was in the Air Force Reserves that show normal clinical evaluations for his back or the coinciding Reports of Medical History where the Veteran did not report any back problems. This opinion is of little probative value.

The January 2020 letters are also of little probative value. All three opinions attribute the Veteran's current back pathologies to a howitzer accident that occurred during the Veteran's 1969 period of service. While the Veteran is competent to describe what he experiences, the Board has found the contemporaneous medical evidence of record more credible than the Veteran's lay statements. Although all three opinions note the Veteran was treated by a chiropractor in 1974, none addresses that the injury in 1974 occurred outside of a period of service. Furthermore, the January 2020 letters do not address the examinations in 1983, 1987, 1991, or 1996 where the Veteran's back was evaluated clinically normal, or the medical histories in 1987, 1991, and 1996 where the Veteran denied recurrent back pain.

The Board finds the August 2019 VA opinion to be the most probative regarding the Veteran's 1975 period of service. The examiner concluded it is less likely than not that the Veteran's claimed back disorders were incurred in or caused by his active service in 1975.The examiner noted that although the April 1974 examination indicated some stiffness compatible with a recent muscle strain, physical examinations after service did not show any spine or back issues. Regarding the Veteran's current back disorders, the examiner concluded the imaging studies are consistent with age related degenerative changes and would not be unexpected in a male of the Veteran's age who had not served in the military. The examiner's conclusions were based on a full discussion of the relevant facts and records and includes a well-supported rationale that is consistent with the facts established in the record.

The August 2019 VA examiner considered the Veteran's lay assertions, but ultimately found that the Veteran's back disorders were not caused by or aggravated by his periods of service. The positive nexus opinions do not account for the post-service examinations where the Veteran's back was clinically normal, and medical histories where he did not report back pain. The Board finds that the Veteran's lay statements are outweighed by the contemporaneous medical evidence and the August 2019 VA examiner's medical opinion.  Furthermore, we find the lay statements in this case to be not credible.

The credible and probative evidence establish that a strain was identified on examination that was conducted for this period of service.  No other pathology was identified at this time and the X-ray examination conducted in April 1974 disclosed a negative lumbosacral spine.  Neither arthritis nor disc disease was noted, diagnosed or manifest during this period of service.  He did not have characteristic manifestations sufficient to identify such pathology during this period of service.  In fact, on subsequent examinations in 1987, 1991 and 1996 he denied a history of recurrent back pain and the spine was determined to be normal on clinical evaluation.  His assertions of an in-service onset and on-going symptoms are inconsistent with his specific denials in 1987, 1991 and 1996 and inconsistent with normal clinical findings in 1987, 1991 and 1996.  Regardless of any claimed in-service event, to include moving pallets, we find any post-service report of in-service back pain, regardless of cause, to be not credible.  Furthermore, any medical opinion based upon an inaccurate factual predicate is equally inaccurate and not credible.

Because the 1975 period of service was less than 90 days, the one-year presumption for arthritis does not apply.  

For the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for a back disorder. The preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, 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.