Citation Nr: 21040189 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-14 275 DATE: July 2, 2021 ORDER Entitlement to service connection for a back disability, including degenerative arthritis and degenerative disc disease of the spine, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed back disability is related to service, developed to a compensable degree within a year after separation from service, or that the Veteran experienced symptomology continuously from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. § 1131, 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1955 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2018, July 2019, and February 2021. This issue is once again before the Board. In July 2019, the Board denied entitlement to service connection for the Veteran's back disability to include degenerative arthritis of the spine and degenerative disc disease of the spine. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court set aside the Board's July 2019 decision and the matter was remanded for further development and readjudication. Subsequently, the Board remanded the issue in February 2021 for further development. This matter is once again before the Board. Duty to Assist In the Memorandum Decision, the Court held that the Board erred by failing to provide an adequate statement of reasons or bases for relying on the February 2019 VA examination. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis of the Veteran's claim has been undertaken with that obligation in mind. Following the Court's decision, the Board remanded the Veteran's claim in order to make additional efforts to obtain an adequate medical opinion. As will be discussed below, a medical opinion was obtained in March 2021. The Veteran's service treatment records are unavailable and presumed to be destroyed by a fire. See September 2016 Personal Information Exchange System (PIES) response. The Board notes that VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are therefore heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). However, the heightened duty does not lower the legal standard for proving a claim; rather, the Board's obligation to discuss and evaluate evidence is heightened. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In this regard, the Board recognizes the Veteran stated that he was in receipt of social security disability beginning in 1990. See March 2019 VA examination. The Veteran indicates that his disability is based on VA records from 1985 to 1990. See October 2017 Correspondence. The Board finds that a remand to obtain SSA records would cause undue delay because the VA is already in possession of those records. Additionally, as will be discussed below, the Veteran has stated that his social security disability is related to an injury sustained while performing manual labor, over 30 years after service. Entitlement to service connection for a back disability The Veteran maintains that he broke his back in service and that his current back disability is related to this injury. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including an organic disease of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Treatment records demonstrate that the Veteran has a compression fracture and degenerative disc disease. Therefore, the first element of service connection has been established. Regarding an in-service injury the Veteran recalled three incidents in service and reported that his duties put extra strain on his back. The Veteran reported a vehicle accident in which a crane hook crashed into the vehicle he was riding in. The Veteran recalled being helped out of the vehicle and taken to the hospital where he was evaluated with heat lamps on his back and later used crutches. The Veteran stated that this was one of three back injuries he sustained while in service. Next, the Veteran reported falling after being pushed through a doorway, resulting in a twisted back. Lastly, he reported straining his back while trying to open a lift door. The Veteran did not recall any treatment related to the last two incidents. See March 2019 VA examination. As noted above, the Veteran's service treatment records are unavailable. The Veteran's lay statements are competent to report an in-service incurrence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, an in-service injury has been established. Although the first two elements of service connection have been substantiated, the Board finds that service connection is not warranted for a back condition, as there is not sufficient evidence of record to establish a nexus between his in-service injury and his current back condition. Post-service treatment records demonstrate the Veteran reported pain in his left back area that spread to his abdomen in 1985. The Veteran's history of kidney stones was noted, and he was diagnosed with nephrolithiasis. See June 1985 treatment records. Subsequently, the Veteran underwent surgery on his left kidney to remove calcification. In January 1989, the Veteran reported back pain that started within the last two days when he was returning home from work as a dietician's aide. The Veteran describe the pain as having a sudden onset with no reported injury or history of back pain. The Veteran was diagnosed with degenerative joint disease the following month. See February 1989 treatment records. In a March 2007 mental health consultation note, the Veteran reported that post-service, he worked on an aircraft and became an electrician. Following a stroke in the early 1970s, he was no longer able to work as an electrician and took whatever kind of job he could find. In the 1990s, he reported doing manual labor until he injured his back. See March 2007 treatment records. No further details were provided regarding the back injury, but the Veteran stated that he went on social security disability after his back injury, which is consistent with his prior statement regarding going on disability in 1990. This contemporaneous evidence is significantly more credible and probative than the Veteran's subsequent statements that he has been experiencing back pain since service, made years after service for the purpose of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In March 2019, a VA examiner found the Veteran's back condition less likely than not related to his service. The examiner reasoned that he initially reported back pain over 25 years after service, and given his history of employment, it is unlikely that a chronic condition had existed since service because it would have been difficult to perform the activities with a broken back. The examiner further stated that all x-rays were negative for fracture, compression fracture or indication of a broken back. As noted above, the examiner did not address the July 2018 imaging which indicated the presence of an old fracture. In March 2021, pursuant to the February 2021 Board remand, an addendum opinion was obtained. A VA examiner found it less likely than not that the Veteran's back condition incurred in or was caused by his service. The examiner reasoned that based on the timeline of objective medical evidence, it was unlikely that the Veteran broke his back in service. The examiner reported that in January 1989, the Veteran was seen for back pain, but did not report a history of a current or previous injury. The examiner noted that a May 1989 spinal x-ray, a June 1989 CT scan and a January 2003 spine MRI were negative for a L1 fracture. It wasn't until July 2018 that an x-ray revealed a L1 fracture. The examiner further noted that the Veteran was diagnosed with osteoporosis by a bone density scan in May 2019 which is consistent with medication he began taking in August 2017 that is known to cause bone loss. The examiner found the L1 fracture identified in the July 2018 spine image likely the result of his loss of bone density. The March 2021 examiner also stated that degenerative disc disease is related to age-related changes within the nucleus pulposus of the disc and the Veteran was 53 years old in June 1989, when he initially reported his back pain. The examiner noted that the Veteran had a normal electromyography (EMG), indicating no radiculopathy, and was dismissed from the orthopedic clinic in January 1990 "as he was no longer having symptoms." Later, a January 2003 spinal MRI was negative for an L1 fracture and the L5-S1 area had changes consistent with the 14 years that had passed since the last MRI. With respect to the Veteran's contention that he was told he had broken his back, the examiner noted that the January 1989, May 1989, June 1989 and July 1989 medical documentation did not indicate that the Veteran's back was broken. The examiner reasoned that while the July 2018 lumbar spine x-ray documented an old fracture of the L1, that fracture would have occurred after January 2003 as the 2003 spinal MRI was negative for a fracture. Additionally, the examiner noted the Veteran's contention that there were three incidents in service that caused injury to his back; however, the examiner determined that had a significant injury occurred in service, a remote history of the trauma would have been identified on the May 1989, June 1989 or January 2003 spinal imaging. In sum, the examiner concluded that the Veteran's spine disability was less likely than not related to service and more likely related to aging of his spinal discs. The Board finds the March 2021 opinion competent and highly probative, as it was made by a medical professional with consideration of the specific facts in this case and supported by medical literature. Moreover, the record is absent competent evidence suggesting that the Veteran's current spine condition is related to an in-service event, injury or disease. Aside from his own lay statements, the Veteran has not provided any possible indication of a nexus between his current back condition and an injury he reported happened in service almost 60 years ago. Although the Veteran is competent to describe his symptoms, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). Such questions represent a medical matter requiring someone with medical training to resolve. The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on these matters. Moreover, as noted above, the Board finds his 2007 contemporaneous statements that he sustained a back injury in 1990 while doing manual labor more credible than his subsequent statements that his current back condition is related to an in-service injury. Consequently, the Board assigns no probative weight to the Veteran's assertions. In light of the foregoing, the Board finds that entitlement to service connection for degenerative arthritis of the spine, claimed as a back disability, is not warranted. Although the evidence of record reflects that the Veteran has a currently diagnosed back disability, there is no competent evidence of record to establish a nexus. Further, the Board acknowledges that the Veteran has been diagnosed with degenerative arthritis of the spine, and that arthritis is considered a chronic disability under 38 C.F.R. § 3.309(a). However, the earliest indication in the record of a diagnosis of degenerative arthritis of the spine is in 1989, which is more than 30 years after separation from service. And while the Veteran reported he had back pain continuously from service, the Board does not find the Veteran's statements credible based on the contemporaneous evidence of record which documents the presence of other health concerns and back injuries, but does not report any history of an injury in service. In this regard, the Veteran reported that he sustained a back injury in the early 1990s while performing manual labor. If the Veteran had been experiencing back pain since service, it would be expected that he would have described such symptomatology in 1989 when he was first diagnosed with degenerative disc disease See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Thus, as the Board finds that entitlement to service connection for degenerative arthritis of the spine is not warranted; the Veteran's claim is denied. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.