Citation Nr: 21032355 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-25 105 DATE: May 26, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that a low back disability began during active service or is otherwise related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a low back disability 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 had active service from February 1980 to June 1989, with subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs regional office (RO) in Decatur, Georgia. The Veteran testified in September 2020 at a virtual tele-hearing; a transcript of which is of record. The matter was remanded by the Board in February 2021. All requested development now having been completed, the Board may proceed with adjudication. The Veteran states that while stationed in North Dakota in January 1985, he slipped on stairs in his barracks and woke up the next day with a sore back. See Hearing Transcript at p. 3. He said that he did not seek treatment, but a year or two later, started to notice that he had leg pains that he also believed were related to that fall, and for which he filed a claim for benefits in 1989. He said that he subsequently noticed during his time as a Reservist that he had problems with his back being sore, but said he did not get any medical treatment between 1989 and 2011, until he got to a point in 2011 when he could not walk. Id. at 4. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a diagnosis of lumbosacral strain. See March 2021 VA examination. The question for the Board is whether the Veteran's current back disability at least as likely as not began during service, or is otherwise related to an in-service injury. The Board concludes that, while the Veteran has a low back disability, the preponderance of the evidence weighs against finding that such began during service or are otherwise related to an in-service injury, event, or disease. Pertinent evidence of record shows that in his January 2013 Notice of Disagreement, the Veteran detailed that he hurt his back in 1985, but only sought treatment at that time for related pain in his legs. He said he took pain medication for his back pain. In his May 2017 substantive appeal, the Veteran provided more detail, clarifying that after falling and injuring his back in 1985, his back was sore the next day, but he could function and therefore he did not seek medical attention. After a few days, the injury became almost non-noticeable. Several months later, he explained, he started to feel leg pains and sought treatment for those symptoms. He explained that he filed a claim for leg pains after separating from active duty, and then joined the National Guard and continued to be treated for leg pain. During his Reserve service, he said that he noticed his back and his legs hurting together. He sought treatment for his back pain in 2011. He recounted his 1985 injury at his September 2020 Board hearing and explained that he did not seek treatment for his back between 1989 and 2011, even though it was sore. A friend submitted a statement in September 2020, indicating that he noticed a change in the Veteran's gait and normal activity in 2011 due to his back. Private treatment records submitted from Dr. R.R. show that the reported date of onset of back pain was in March 2015. However, the Veteran indicated in November 2020 Correspondence that Dr. R.R.'s office had been unable to locate any of the Veteran's treatment records prior to 2013. Dr. R.R. submitted a letter indicating that she had treated the Veteran for his back problems intermittently since 2010. The Veteran's wife submitted a statement indicating that she had witnessed the Veteran struggle with back problems for 20 years. She explained that his back and leg pains were minor when he left active duty service in 1989 but progressed gradually. The Veteran underwent a back conditions examination in March 2021, at which point the examining clinician diagnosed lumbosacral strain. The Veteran described the history of his back injury and that he experienced progressive pain through the Reserves. In a corresponding medical opinion, the clinician acknowledged the Veteran's reports of the onset of his back disability, to include the reported injury of falling on steps in 1985, and the statements that his back pain was worse during exercise. The clinician also noted that after separation from active duty, the Veteran worked for 30 years for the United States Postal Service in various jobs, including as an electrical/mechanical technician, a position from which he retired in September 2020. The Veteran told the examiner that to work for the post office, he was required to be able to lift 75 pounds. Upon review of the evidence, the examiner opined that the claimed condition was less likely than not incurred in service or caused by the claimed in-service injury. By way of rationale, the examiner noted that the Veteran's October 1979 enlistment examination reflected a normal clinical evaluation of the spine, and that there were no complaints of back pain noted in the Veteran's service treatment records. Indeed, in his March 1989 separation examination, the Veteran had a normal spine evaluation and he marked "no" to the question of whether he experienced back pain. In consideration of the Veteran's normal entrance and exit examinations, lack of complaints in service for any back-related issues, lack of evidence that the Veteran sought medical attention for his back within a year after separation from active duty, and his work for 30 years with the USPS with a requirement to be able to lift 75 pounds, the examiner concluded that the Veteran's lumbosacral strain was less likely than not caused by the claimed in-service injury. The Board finds that the March 2021 opinion is probative evidence that weighs against a finding that the Veteran's back disability had onset in, or is otherwise related to his claimed in-service injury. The opinion is probative, as it was based on an accurate review of the Veteran's medical history, as well as his contentions. While the Board recognizes that a negative opinion may not be based solely on the absence of treatment, in this particular case, the examiner reflected on the Veteran's post-service employment history and the Veteran's lay contentions as to his disability. There are no other medical opinions of record contrary to that of the March 2021 examiner. The Board has considered the Veteran's assertions about injuring his back during active duty service and having back pain since that time. Initially, the Board notes that the Veteran is competent to report the incident in service that injured his back. However, the Board finds that the Veteran's reports of continuity of back pain since the reported injury are not credible due to internal inconsistency, and inconsistency with other evidence of record. In this regard, as noted above, the Veteran had a normal clinical evaluation of the spine upon separation in 1989, and specifically denied a prior history of recurrent back pain at the time. Importantly, on the back of the Veteran's Report of Medical History in 1989, the Veteran also responded "no" when asked if he ever had any other illness or injury other than those already noted on the form. Insofar as the Veteran asserts that he experienced back pain through his Reserve service, the Board first notes that although the Veteran applied for disability benefits in June 1989, such was a claim for leg pain and nowhere did the Veteran indicate that he experienced corresponding back pain, as he now asserts. Moreover, the leg pain at the time was attributed to muscle strain and cramps in service records, and not to an in-service fall injury or back disability. Another factor weighing against the Veteran's contentions is that his Reserve treatment records specifically do not show that the Veteran ever reported or complained of back pain. Rather, he denied experiencing recurrent back pain on an August 1993 periodic examination report of medical history, replying "no" to the question of whether he ever experienced recurrent back pain. His evaluation of the spine at that time was also normal. Finally, the Board notes that in no recent medical treatment records has the Veteran relayed his in-service injury to any of his providers. Dr. R.R.'s treatment records do not mention report of an in-service back injury. Moreover, at February 2019 VA treatment session, the Veteran reported pain in his low back that had existed since 2011, but did not identify, when asked, any specific prior injury or surgery. In weighing credibility, VA may consider consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In this case, the Board finds that the record does not contain credible evidence of a continuity of low back symptoms from the time of the Veteran's active duty service to the present. The Veteran, and those who have written statements on the Veteran's behalf are competent to report they have observed, they are not competent to opine as to a link between that the Veteran's current back strain and a fall in service. The issue is medically complex, requiring knowledge of the inner musculoskeletal workings of the body and interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran, his spouse, or his friends to make such a determination as the record does not show that any have the medical training or credentials to make such determination. Consequently, the Board gives the most probative weight to the findings of the March 2021 VA examiner. For these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a back disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.