Citation Nr: 21040576 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-39 288 DATE: July 6, 2021 ORDER Service connection for a back disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a back disorder is related to an in-service injury; rather the most probative evidence of record supports that the Veteran's chronic low back pain is related to a post-service March 2005 motor vehicle accident. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 until January 1989. This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified before the undersigned Veterans Law Judge in October 2017 and December 2020. Transcripts of these hearings have been associated with the record. In March 2018, the Board remanded this claim for further development. The Board finds there has been substantial compliance with the prior remand directives. Pertinently, in September 2018, the RO received a response from SSA that there were no medical records in their possession. The Veteran seeks service connection for a back disorder based on sustaining a back injury when lifting a generator in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board acknowledges that the representative has cited to Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The basis of this denied in that the current back disability is noted related to an injury or incident in service. The Board's denial is not based on a finding that a back disability existed prior to service. On this basis, the holding of Wagner is not for application. The Veteran has a currently diagnosed back disorder. There is also evidence of an in-service back injury in June 1986 when the Veteran picked up a generator. Service treatment records further show that two days after the incident the Veteran was discharged from the hospital based upon an improvement in pain. There also is an April 1988 treatment note for low back strain due to pushing a car; it references a history of back pain. Service treatment records do not show that the Veteran received a physical profile for back pain despite the Veteran having received profiles for other conditions during service. At the September 1988 separation examination, the Veteran reported recurrent back pain; however, the examiner found a normal spine. After review of the post-service medical treatment and opinion evidence, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's back disorder is related to the June 1986 in-service injury regarding the generator. In March 2005 the Veteran presented to the VA Emergency Department reporting that he was a pedestrian hit by a truck and hurt his back. A subsequent primary care note from March 2005 further indicated that the Veteran complained of back pain since the motor vehicle accident (MVA) and that his spine xrays were negative for abnormalities. A May 2005 VA orthopedic consultation reported that the Veteran was hit by a truck in March 2005 and was found to have suspected myofascial pain syndrome. Moreover, VA treatment records show the Veteran was not diagnosed with spondylolysis until 2005, almost a decade and half after his separation from service. A March 2005 xray showed no acute bony fractures or dislocation. Thereafter, a June 2005 CT found left-sided spondylolysis; and a December 2005 MRI showed left L5 spondylolysis and mild disc disease at L3-L4, L4-L5 and L5-S1. A February 2006 xray showed spondylolysis and no evidence of subluxation or dislocations, or acute compression wedge deformities. Mild spurring was seen at the L3-L4 level. A subsequent October 2010 xray showed severe facet arthrosis at L5-S1 with lesser changes at L4-L5, and mild spondylolysis; and a January 2012 MRI showed degenerative disc disease at levels of L3-L4 through L5-S1 with spondylolisthesis of L5 on S1. A June 2013 lumbar spine xray continued to show mild degenerative disc disease in the lower lumbar spine L3-L4, L4-L5, and L5-S1, and the radiologist reported that early osteoarthrosis (Baastrup's disease) could not be excluded. A September 2014 xray continued to show mild degenerative disc disease in the lower lumbar spine and spinous processes from L2-L5 and a continued assessment of possible early osteoarthrosis (Baastrup's disease). A December 2014 Wholebody Bone Scan noted mild degenerative joint disease at L4 and L5. The December 2018 VA examination and April 2019 addendum opinion found that the Veteran's back disorder was not as least as likely as not related to service. The examiner opined that the service treatment records indicated that the Veteran complained of back pain after lifting a generator in June 1968 and the impression was myofascial strain, which was treated. She indicated that the September 1988 separation examination documented a normal spine and musculoskeletal examination. She opined that based on her review of the file, there was no evidence to support continuity of symptoms or recurrent back problems while in service for the injury sustained by the generator. Rather, she explained that the Veteran had a significant post-service injury from the March 2005 MVA that resulted in chronic low back pain as documented in VA treatment records from 2005 onwards. She explained that following the MVA, the Veteran was seen multiple times for low back pain and that the December 2005 MRI showed mild disc disease at L3-L4 and L4-L5. The December 2018 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data based on objective radiographic studies contained in the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the Board has carefully considered the contentions that the VA examiner did not rely on an accurate factual history, to include citation to 1986 instead of 1985. The Board finds, however, that any error in citation was clearly typographical in nature. The examination report relies on an accurate review of the record and is supported by adequate rationale. The private opinions from February 2017 and March 2021, indicate that there is a nexus between the back injury sustained from the generator in service and the Veteran's current back disorder. The February 2017 private opinion's rationale was that the Veteran had spondylosis and was asymptomatic but following the incident with the generator the Veteran developed progressive lumbosacral pain. Notably, this private opinion states that the Veteran had no history of automotive trauma, which is factually inaccurate. VA treatment records explicitly contain treatment notes that the Veteran went to the VA Emergency Department following a March 2005 MVA, and subsequent treatment notes often indicate he had been injured from the MVA. VA primary care treatment further recorded the Veteran's complaint of continued back pain following the MVA. As evidence of a post service MVA is clearly documented in the record, the omission of it by the February 2017 private medical opinion cannot be ignored as the diagnosis of spondylolysis was made immediately following the MVA. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The February 2017 private opinion is also less probative than the December 2018 VA examiner's opinion because she considered whether the trauma sustained from the March 2005 MVA was the cause of the current backpain. Accordingly, the February 2017 private opinion is given little weight because it fails to address a highly probative and well-documented post-service MVA as a cause of the Veteran's back pain and disorders, and fails to explain why the trauma sustained during the MVA would or would not cause spondylolysis. The March 2021 private clinician opines that degenerative joint disease and degenerative disc disease and herniated nucleus pulposus (HNP) of the spine were related to a 1985 incident during service. The private clinician explained that there was documentation of chronic back pain in service and it eventually worsened to the point of developing degenerative disc disease and degenerative joint disease. The rationale was that the Veteran's back disorders are from the injury sustained while moving a generator during service based on documentation of back pain since service. However, this private opinion is also absent for any discussion of the March 2005 MVA and subsequent spine treatment the Veteran received for the MVA. This opinion, therefore, also lacks significant probative weight as it is based on an inaccurate factual history. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide an etiology opinion in this case or determine that these symptoms were manifestations of his various back disorders. The issue is medically complex, as it requires knowledge of the anatomical relationships and disease progression, and the ability to interpret diagnostic testing. Therefore, it is outside the competence of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the December 2018 VA examiner and the contemporaneous medical treatment following the March 2005 MVA, especially the radiographic studies. The Board acknowledges that the representative has questioned the qualifications of VA examiners generally. The letters raising these questions are form in nature and do not identify a specific examiner. Relevant case law addresses the need to address questions of qualifications when raised when these letters are specific to this claim. Here, however, as these questions are general in nature, the Board finds that these letters do not raise any additional duties to provide the qualification of the examiners in this case. The Board finds that the reports are complete and follow VA policy. The Board also acknowledges that the Veteran received a diagnosis of arthritis in his spine beginning around 2010 based on the radiographic studies summarized above. Although arthritis is a chronic disease, there is no basis to grant service connection for arthritis on a direct or presumptive basis. See Walker v. Shinseki, 708 F.3d 1336 (Fed. Cir. 2013). The evidence weighs against a finding that arthritis manifested in service or to a compensable degree within one year of discharge from a period of active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Therefore, entitlement to service connection on a presumptive basis is also not warranted. For the foregoing reasons, the Board finds that the claim for service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.