Citation Nr: 21040749 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-32 405 DATE: July 6, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The in-service (active duty) back pain waws acute and resolved. 2. A medically chronic back disability was not manifest in service and is not otherwise attributable to service, arthritis did not manifest within one year of separation from active service. 3. The Veteran did not experience injury during INACDUTRA or ACDUTRA. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service or ACDUTRA/INACDUTRA and arthritis may not be presumed to have been incurred during active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to January 1978 and from December 1978 to December 1980 and had full-time training duty (FFTD) from February 1984 to June 1984. The Veteran had periods of ACDUTRA and INACDUTRA in the Utah National Guard between January 1978 to December 1878, December 1980 to February 1984 and June 1984 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded this case for further development. The July 2018 remand required that any records related to the Veteran's Utah National Guard service be obtained and an additional VA medical examination be provided. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Pertinent Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air force or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167. The requirement for a current disability is satisfied if the disability is shown at any time subsequent to filing the claim, even if not shown currently. McLain v. Nicholson, 21 Vet. App. 319 (2007). Service connection is warranted for an injury incurred or aggravated during a period of inactive duty for training (INACDUTRA). 38 U.S.C. § 101(24)(C) (West 2014); 38 C.F.R. § 3.6(a) (2016). In contrast, service connection may be granted for an injury or disease incurred or aggravated during a period of ACDUTRA. 38 U.S.C. § 101(24)(B) (West 2014); 38 C.F.R. § 3.6(a) (2016). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disease, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods, however, do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 47-78 (1991). The one-year presumptive period is not applicable and consideration of 38 C.F.R. § 3.309 (presumption of service incurrence for certain diseases) for the Appellant's periods of ACDUTRA/INACDUTRA are not appropriate. 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). The Board notes that the appellant has not claimed that the Veteran's disability on appeal is the result of combat with the enemy. Therefore, the provisions of 38 U.S.C. § 1154 relating to combat service are not for consideration. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service Connection The Veteran contends that he is entitled to service connection for a back condition that occurred in-service. Specifically, due to him hurting his back while lifting an engine in March 1980. The Veteran was provided an April 1973 enlistment examination. The Veteran's spine was evaluated as normal and the Veteran denied recurrent back pain. The Veteran was provided additional examinations in May 1976, December 1977, February 1978 and May 1978. All of during which the Veteran's spine was evaluated as normal and the Veteran denied recurrent back pain each examination. The Veteran was provided a November 1980 examination. The examination noted that the Veteran had frequent low back pain. The Veteran marked yes to experiencing recurrent back pain. On March 30, 1981, the Veteran reported he had a backache. During the examination the Veteran reported that he had hurt his back earlier in service when he was lifting an engine. The Veteran reported that no x-rays were taken, he was not hospitalized and that he was not seen by a doctor. The Veteran explained that he was seen by a corpsman at night who told him that he would not wake the physician just to see him for a lower backache. The examiner noted that Veteran had a history of muscle back strain, but nothing was found to current date. X-rays were taken of the Veteran back which showed mild scoliosis without other abnormalities. The Veteran was provided additional examinations in January 1982 and March 1983. On both examinations, the Veteran's spine was evaluated as normal and the Veteran denied recurrent back pain. The Board notes that according to a U.S. Department of Labor form that the Veteran filled out, he began work as an aircraft mechanic on March 20, 1985. See, e.g., Medical Treatment Record Non-Government Facility dated April 1999. In June 1987, the Veteran was provided an examination. The Veteran's spine was evaluated as normal. The Veteran signed a statement in lieu of current medical examination on February 1989. The Veteran stated that he had not been treated by clinics, physicians, healers, or other practitioners since his last examination in June 1987. The Veteran was provided a September 1991 examination. The Veteran's spine was evaluated as normal and the Veteran denied recurrent back pain. On the examination it was noted that the Veteran had experienced a back injury in March 1980 where the Veteran twisted his back and could not move for 2 hours. The note stated that he immediately reported to sickbay but was told not to worry about it. The note also stated that it had happened three times since. In December 17, 1991, the Veteran reported that he slipped on ice and fell while working. The Veteran received treatment and x-rays were provided to the Veteran. The Veteran's x-rays were interpreted as normal and the Veteran was diagnosed with a low back sprain. While bending over at home not exerting himself the Veteran experienced another back injury in May 1993. The Veteran stated that his back slipped and the pain he experienced was the same type that he experienced during his first injury. The Veteran was provided a retention examination in September 1994. The Veteran's back was evaluated as normal. The examination noted that the Veteran had a herniated disc from the December 1991 incident and recurrent back pain. The Veteran marked yes to experiencing recurrent back pain. In January 1992 a radiology consultation was provided to the Veteran. The consultation noted that the Veteran's lumbar spine was normal. There was mild desiccation of the L4-5 disc, however the remainder of the discs appeared normal. A medical note was provided to Veteran when he complained of back pain in June 1992. The note stated that the Veteran's back pain was due to disc involvement noted in December 1991. The note indicated that the Veteran was complaining of increased pain. In August 1995, the Veteran experienced another back injury while working on an aircraft. The examiner diagnosed the Veteran with exacerbation of chronic back pain by reinjury. The Veteran had a back injury where he slipped on a wet rail in July 1996. The Veteran reported he hurt his back during the slip and experienced lower back pain. The Veteran was diagnosed with an acute lower back injury. A private medical note was made for Veteran in September 1996. The Veteran was diagnosed with low back pain and degenerative disc disease at L4-5. Earlier in the month the Veteran was noted to be experiencing sharp achy pains in the lumbar area. The Veteran suffered an additional back injury at home while picking up things from outside in November 1997. The Veteran described his pain as feeling an explosion in his lower back that put him in excruciating pain. In April 1999 the Veteran was provided an additional examination. The Veteran's spine was evaluated as normal, but the Veteran marked yes for recurrent back pain. The examination included Veteran's degenerative disc disease L4-5 from 1991 to 1997 on the summary of defects and diagnoses. The examination noted the December 1991 and November 1997 back injuries that Veteran had received. On March 17, 2003, the Veteran was provided a private examination for his back. The Veteran reported that he had injured his back again in February 2003 while lifting heavy cords. The examiner's impressions were mild disc desiccation at L4-5 and L5-S1, facet arthrosis and a mild broad-based disc bulge. The Veteran was provided an x-ray and radiology report in March 2003. The findings of the report were that there were five non-rib-bearing lumbar-type vertebral bodies, the lumbosacral spine was in anatomic alignment and that normal alignment was maintained throughout flexion and extension. In April 2003 a private medical note was provided to the Veteran. The note stated that the Veteran was showing some natural healing at the L-4/5 level and is compatible with his age. The examiner stated that at the time of the note the Veteran was asymptomatic. The Veteran was provided an MRI examination of his lumbar spine in March 2005. The impression as a result of the MRI findings was that there were changes of degenerative disc disease at L4-5 and L5-S1. The Veteran was provided a private follow-up evaluation in April 2005. The note went over the findings and impressions of the MRIs taken March 2003 and March 2005. The Veteran was subsequently diagnosed with multilevel degenerative disc disease of the lumbar spine and a lumbar strain/sprain. The Veteran was provided a private medical opinion in August 2005. The private doctor stated that the Veteran's current degenerative disc disease of the lumbar spine was related to his injuries while working in the military. The examiner stated that it was more likely than not that the Veteran's lumbar injury stems from the 1980 incident with the 1991 incident created aggravation of his back. The examiner cited that the Veteran's injuries and current diagnosis are consistent with discogenic pain without neurological involvement. Further the examiner stated that this opinion's rationale was based off the provided history and medical documentation the Veteran provided. The Board notes that while the private examiner had taken into account both the 1980 and 1991 incidents, it does not provide much rationale. Further the examiner stated that the Veteran's history and medical documentation was the rationale, but the examiner did not go into specifics or what part of the Veteran's documentation support this opinion. The Board observes that the examiner was providing treatment to the Veteran since 1991, but that does not compensate for the lack of rationale. The Board assigns the positive nexus opinion with little probative value. While the examiner has provided the Veteran with extensive treatment, the rationale for the positive nexus opinion is lacking depth. The Veteran was provided with a VA examination in October 2005. X-rays were taken of the Veteran's lumbar spine which revealed arthritic changes with osteophyte formations on the facets of vertebral bodies L4 and 5. The examiner noted that these changes were consistent with degenerative arthritis of the lumbar spine. The examiner stated that the Veteran suffered an injury in 1991 which significantly injured his back and led to the reoccurrence of back pain several times. While the examiner notes that the Veteran stated his back pain is related to the incident in 1980, the examiner disagreed. The examiner stated that the Veteran stated in his workers' compensation file that he began having back pain after the incident in 1991. Further the examiner points to the Veteran reporting that he did not report having suffered from chronic pain from the 1980 incident since his discharge. The examiner explains that there were no medical records from the time period from discharge until the examination in 1991 for the injury from slipping on the ice. The examiner opined that the Veteran's condition was less likely as not to have occurred in the 1980s while the Veteran was in the military service. The Board notes this examination report provides the Board with some probative value. The examiner was thorough in his review of the record noting the Veteran's 1980 incident as well as the lack of complaints until the 1991 incident. The medical opinion does not contradict the record and uses the Veteran's own statements to provide support for the opinion. The Board assigns this medical opinion and examination some weight in the matter before the Board. In November 2005 the Veteran submitted a statement from his brother about his back condition. The brother stated that he had witnessed the Veteran on several occasions suffer from repetitive injury of his lower back. The brother states that since the Veteran was not insured during the 1980s the Veteran was forced to resort to self-medication. The brother stated the Veteran attempted over the counter NSAIDs to the point of causing GERD and more recently causing elevation of his blood pressure. The brother explained that the Veteran was being treated by chiropractors in the mid-1980s and then physical therapy on and off since the early 1990s. The Board notes that while the Veteran's brother is a doctor, he is making a clear lay statement of what he has observed. This statement is competent in this matter in that the Veteran's brother would be one with knowledge of these facts by living with him. However, the Veteran has not brought forward any evidence of records or receipts of the Veteran going to these chiropractors. Further the Board notes that the Veteran's brother is an interested party in the matter. The close familiar relationship combined with no records of any treatment during the time period makes this statement not credible. We also note that the statement is inconsistenet with the Veteran's subsequent denial of symptoms. Since the statement is not credible, the Board assigns it little probative value. The Board noted that the Veteran stated that his National Guard records show clear medical evidence that there was a doctor stating he had aggravated his L4-L5 during a field exercise during annual training. See, e.g., September 2015 Correspondence. The Board determined that this letter showed new and material evidence which resulted in a remand to obtain these additional records. See, e.g., August 2019 BVA Decision. The Board has obtained these records and have not found the referenced injury the Veteran has claimed. The Board has included any other relevant information found in these records with the current decision. The Veteran was provided a VA examination and medical opinion in December 2019. The examiner diagnosed the Veteran with lumbosacral strain and intervertebral disc syndrome. The examiner opined that the Veteran's back condition was less likely than not due to service, to include an injury in March 1980, or any injury during any other period of service. The examiner noted that the Veteran had complaints of back pain in November 1980 and stated he had frequent back pain, but no chronic conditions or abnormalities were identified during the physical examination. The examiner references the Veteran's in-service record does not mention any injuries or an ongoing back condition while in service. The examiner pointed out that while the brother's statement mentioned using chiropractors, there were no records from any chiropractor treatment in the 1980s. Finally, the examiner explained that the Veteran had at least two physicals after the 1980 incident. The March 1983 and September 1991 examinations, both during which the Veteran denied recurrent back pain. The examiner explained that once the Veteran slipped in December 1991, the record became consistent with the Veteran having lower back pain. The examiner pointed as well that the Veteran admitted working on constructing after his service time which is strenuous and often dangerous employment. The Board notes that this medical opinion is similar to the October 2005 medical opinion, referencing similar points. The examiner references the new additional evidence such as the buddy statement and the additional treatment that the Veteran received for his back. The medical opinion is consistent with the record and explains the negative nexus opinion's rationale. Therefore, the Board assigns this medical opinion probative weight. In sum, in 1980, the Veteran complained of back pain and he has reported that he was seen for the complaint. We find this report by the Veteran credible. However, nothing in the records suggests that he had arthritis or disc disease at that time or within one year of separation from service. The fact that he had back pain does not establish that he had a medically chronic or legally chronic disease at that time. See 38 C.F.R. § 3.303. Although he complained of back pain in March 1981, the x-ray examination showed mild scoliosis deformity without other abnormalities. This evidence establishes that although there was pain, he did not have characteristic manifestations sufficient to identify a chronic disease entity. The Board notes that there is not competent, credible evidence of continuity of symptomatology since active service. The Board notes that the Veteran's brother submitted a statement that the Veteran was receiving treatment from chiropractors for his back. As explained above, the Board assigned this statement little probative value. The Board notes that the Veteran was provided subsequent examinations in January 1982, March 1983, June 1987, and a statement in February 1989. In each of the examinations the Veteran denied having recurrent back pain. Most importantly as the previous VA examiners have pointed to, there is a clearly attributable intercurrent cause to the Veteran's disability. The incident where the Veteran slipped in December 1991 is the intercurrent cause. The Board notes that the record and the opinions of the previous examiners indicate the December 1991 incident is the intercurrent causes of the Veteran's disability. The Board observes that the Veteran has periods of ACDUTRA/INACDUTRA after active duty which include the time period of December 1991. However, the injury did not occur while in a period of ACDUTRA or INACDUTRA. According to the Veteran, the December 1991 injury occurred when he was working as an aircraft mechanic in an Air Force base. See, e.g., Medical Treatment Record Non-Government Facility dated December 1991. The Veteran had ACDUTRA/INACDUTRA with the Utah Army National Guard, not any with the Air Force. The Board notes that the activity the Veteran was engaged in while he injured himself is sufficient evidence to conclude that it was not during his ACDUTRA/INACDUTRA. Therefore, the incurrence and aggravation of the Veteran's condition did not occur during ACDUTRA or INACDUTRA. The Board obtained the records from the Utah National Guard and found additional evidence against the Veteran's claim. The Board did not find the claimed incident where the Veteran's back was aggravated during a field exercise during annual training. The Board found additional evidence including the Veteran stating that he did not receive any medical treatment between June 1987 to February 1989. See, e.g., February 1989 Statement In Lieu of Current Medical Examination. This statement adds more probative evidence against the Veteran's claim of treatment in the 1980s for his back condition. In sum, the record reflects a complaint of back pain during active duty. However, there is no credible proof of a medically chronic or legally chronic disease at that time or within one year of separation from active duty. Rather, an X-ray examination in 1981 disclosed no pathology other than scoliosis. It is not until long after service that lumbar disc disease was identified and longer still until arthritis was identified. The VA medical opinions are consistent with the credible facts in the file. The private medical opinion is conclusory and lacks credible rationale. The Board finds that the VA medical opinions read with the service treatment and post-service treatment records provide more probative value than the Veteran and his brother's statements regarding his disability. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Konieczny, Adam 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.