Citation Nr: 21040831 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-37 607 DATE: July 7, 2021 ORDER Service connection for a lumbar spine disability, to include degenerative arthritis, is denied. FINDING OF FACT The Veteran's lumbar spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 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 1968 to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claim in December 2019 and in March 2021 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a lumbar spine disability, to include degenerative arthritis. The Veteran, and his representative, contends that his lumbar spine disability stems from service. Specifically, the Veteran argues that his current lumbar spine disability is related to an in-service injury, described as lifting a "GE drive" onto a B-52 aircraft. In elaborating, the Veteran explained that the GE drive is a driver "that supplies power to the aircraft, and they weight [] approximately 200 pounds." See Hearing Transcript 3-4, 6 (September 2019). See also Form 9 (July 2017) & Correspondence (July 2017) (describing alleged in-service injury and that it resulted in a back strain). The Board concludes that the preponderance of the evidence is against finding that any lumbar spine disability was shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology being established; or that any lumbar spine disability is otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As an initial matter, the Board notes that at service entrance, the Veteran reported recurrent back pain in his report of medical history; the clinician, in elaborating, annotated "back pain sometimes." The April 1968 entrance examination report however found the Veteran's spine to be clinically normal. Moreover, an April 2021 VA medical opinion reveals that it is less likely than not that the Veteran had a chronic back condition upon entry in service. In support of this conclusion, the clinician noted that at service entrance, the Veteran was asymptomatic, and that any "pre-existing episode of back pain" was resolved prior to service. Thus, given the above, the Board finds that the evidence of record does not satisfy the clear and unmistakable evidence standard that is required to establish that a disability pre-existed service and, accordingly, the Veteran is presumed to have entered service in sound condition. Turning to the merits of the claim, service treatment records (STRs) reflect complaints of back pain. In this regard, STRs, dated in October 1968, reveal that the Veteran complained of back pain after playing football; and was hospitalized for acute upper respiratory infection, in which, he complained of a "two day history of dull lower back pain associated with fever and night sweats." The October 1968 narrative summary additionally shows no previous history for hospitalizations or serious illnesses; and following hospital treatment for his acute upper respiratory infection, the Veteran was discharged feeling well. Next, in-service health questionnaire reflects that the Veteran denied history of any prolonged illness. Separation examination report, dated in November 1971, shows that the Veteran was evaluated to have a clinically normal spine. The report of examination additionally shows that the Veteran denied any other significant medical or surgical history. In the corresponding report of medical history, the Veteran denied having, or ever having, arthritis or rheumatism; he did however report a history of recurrent back pain. The clinician, in elaborating, annotated in the report of medical history, "Occasional back pain of several years duration with frequency of twice a year. Spontaneously subsides." He was subsequently found to be qualified for worldwide duty. VA examination report, dated in August 1972, reveals that the Veteran complained of symptoms related to the right knee and right hip. The report is negative for any complaints, signs or symptoms, related to the lumbar spine. After physical examination, the clinician found "no gross abnormalities" related to the musculoskeletal system. Private treatment record, dated in November 1995, reflects that approximately 10 years ago, the Veteran incurred a significant workers compensation-related injury to the lumbar spine. In this regard, the treatment record provides that the injury was to the L4-5. The treatment record additionally provides that the Veteran was admitted for hospital care in August 1996 due to an L5-S1 disc herniation. Treatment record, dated in March 2010, reveals that the Veteran was admitted to an emergency room because he "slipped and fell and injured his lower back and left sacroiliac region." The treatment record also shows that he became fully incapacitated by this injury. Treatment record, dated in November 2011, reveals that the Veteran was again admitted for hospital care after he fell off a ladder, eight feet down, in which he "suffered a compression fracture at L2." Review of x-ray films of the lumbar spine revealed a "healing L2 compression fracture with superior wedging of the superior end-plate." The diagnosis was L2 compression fracture and low back pain. VA and private treatment records, dated afterwards, continue to show complaints and treatment related to the lumbar spine. VA medical opinion, dated in April 2021, reflects the conclusion that the Veteran's lumbar spine disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA medical opinion of high probative value. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the VA medical opinion of high probative value for the following reasons: The medical opinion is based on sufficient facts and data (e.g., the Veteran's lay statements, in-service and post-service medical records); the medical opinion is the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, 22 Vet. App. at 302 (citing to Federal Rules of Evidence on expert witnesses). Further, the VA medical opinion contains clear conclusions with supporting data, and also a reasoned medical explanation connecting the two. Id. at 301. The clinician, in forming his conclusions, considered other factors that may have caused or contributed to the Veteran's lumbar spine disability, to include at least two separate post-service injuries. This is exemplified by the comprehensiveness of the medical opinion, detailing the Veteran's contention that his disability stems from service, to include from low back strain from alleged in-service injury. In this regard, the opinion considered that the Veteran may have had low back strains while in service, however, the opinion found that his current lumbar spine disability more likely than not had its "nexus in the work-related events occurring after separation." The opinion, moreover, fully explained why the clinician disagreed with the Veteran's theory of causation and provided a discussion of the relevant and significant medical history, clinical findings, medical knowledge and literature that support the negative medical opinion and conclusion. For example, the VA medical opinion cites and discusses relevant in-service medical records showing complaints of low back pain; the clinician, nevertheless, noted no evidence of a chronic back condition until the Veteran incurred an acute injury at work, in which, it was followed by surgical procedures, as reported by the Veteran. The clinician thus found that this evidence "represented an acute event suggesting an acute disc herniation." Next, in finding no evidence of degenerative disc disease or acute disc herniation while in service, the opinion notes that "symptoms of such would be readily discernible and the exam notable." It further observed that degenerative spine disease is considered a naturally occurring condition due to age and normal wear and tear with natural disc desiccation and that the Veteran's post-service injuries "may have accelerated the development [] and/or progression" of his degenerative spine disease. In consideration of the above, the VA medical opinion shows that the clinician found the Veteran's contention that his disability stemmed from service of diminished or low persuasion. The Board, thus, finds the VA medical opinion of high probative value as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The Board observes VA medical opinion, dated in January 2016, reflecting that the Veteran's lumbar spine disability is at least as likely as not incurred in or caused by the claimed in-service injury. In support of this conclusion, the opinion notes the Veteran injured his low back in service, underwent his first surgery soon after, and that he "has had continuous symptoms and recurrent surgeries since that time." The Board finds the medical opinion inadequate to support the claim. Specifically, the opinion is inadequate because the essential rationale is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinion, in this regard, does not show a reasoned medical explanation connecting the Veteran's in-service injury to his current disability. See Nieves-Rodriguez, 22 Vet. App. at 301. The opinion, further, is not shown to be supported by detailed rationale that the Board can weigh against the negative evidence of record. See Prejean, 13 Vet. App. at 448-49. In this regard, the opinion does not discuss or explain evidence of post-service injuries demonstrating an onset of a chronic lumbar spine disability. Although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. In sum, the absence of a meaningful discussion of this evidence in the rationale does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinion's foundation and, accordingly, the Board finds the medical opinion inadequate to support the claim. The Veteran is competent to report his symptoms associated with his disability, to include pain. However, the Board finds that he is not competent to opine on the etiology of his symptoms given that the disability was not shown as chronic in service and because he lacks the requisite medical expertise to formulate a medical opinion on whether his disability is related to an in-service injury or disease. In sum, this is a complex medical determination beyond the ken layperson that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that require specialized medical education and knowledge, beyond the ken layperson, regarding the unseen and complex processes of the development of a musculoskeletal disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements of record, to include his testimony, cannot be accepted as competent evidence sufficient to establish service connection, and, thus, his medical opinion in this matter has no probative value. In addition, to the extent that the Veteran argues that any chronic lumbar spine disability had its onset in service, the Board finds his statements less than credible. Moreover, to the extent that the Veteran maintains that any arthritis of the lumbar spine manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology, the Board also finds those statements less than credible as they are inconsistent with the other evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). In this instance, the record indicates that at service separation and within one year after service separation, the Veteran was found to have a clinically normal spine. Although the Veteran has alleged that he reported back symptomology, two different examiners, within a one-year period, found no evidence to demonstrate the onset of a chronic lumbar spine disability. Despite the Veteran's unsupported assertions, the evidence suggests that he was properly evaluated by trained medical professionals. Additionally, the Board observes that symptoms for degenerative disc disease or acute disc herniation would be readily discernible to the extent that on physical examination the examiner would notate such findings on a report. See C&P Exam (April 2021). The record, further, shows that, in November 1995, the Veteran was found to have a significant past medical history for the lumbar spine as related to a post-service occupation injury. The treatment record, however, does not reveal a past medical history as related to the Veteran's service. Indeed, the treatment record indicates that the Veteran's current lumbar spine disability stems from post-service work injuries. Thus, given the above, the decades since service separation, and the Veteran's significant post-service medical history as relating to the lumbar spine, the credibility of his statements is discounted. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) ("Credibility does not necessarily hinge on the declarant's intent. A statement may be untrue (and, thus, not credible) because of lack of knowledge, faulty memory, garbled expression, or other reasons, notwithstanding the declarant's intent to speak the truth."). Lastly, the Board takes notice of the absence of corroborating evidence and the Veteran's strong financial incentive to misstate. An absence of corroborating evidence and personal interest may factor into the Board's credibility analysis, so long as it is not the sole base for finding the Veteran not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record," but "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Caluza, 7 Vet. App. at 511 ("The credibility of a witness can be impeached by a showing of interest."); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (explaining that, although the Board "cannot ignore appellant's testimony simply because appellant is an interested party," it may take pecuniary interest into account when assessing the appellant's credibility). Here, contemporaneous medical evidence, in-service and post-service, as discussed above, go against the Veteran's assertion that any chronic lumbar spine disability having its onset in service; further, the contemporaneous medical evidence of record goes against the Veteran's contention that any arthritis of the lumbar spine manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology since. Indeed, as discussed above, the record shows a manifestation of a spine disability or disorder until decades after service separation. For example, as noted above, one of the first manifestations of a chronic lumbar spine came circa 1985, over a decade after service. See Medical Treatment Record-Non-Government Facility (November 1995). Nevertheless, even if the Board was to find the Veteran's statements of record as acceptable competent evidence sufficient to establish service connection for his disability, the Board gives more probative weight to the VA medical opinion because the medical professional is shown, through the comprehensiveness and detailedness of the medical opinion, to have possessed the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's current lumbar spine disability is not related to his service. The opinion, moreover, reflects a reasoned medical explanation with consideration of lay statements, and relevant in-service and post medical records. Given the above, the competent, credible evidence of record does not reflect that any chronic lumbar spine disability had its onset in service or is otherwise etiologically related to an in-service injury or disease. Further, the competent, credible evidence of record does not show that any arthritis of the lumbar spine manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology. The Board assigns greater probative value to the Veteran's in-service and post-service medical records, which contain no objective finding for any chronic lumbar spine disability until more than a decade after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board additionally assigns greater probative value to the VA medical opinion than to the Veteran's uncorroborated medical opinion because, as mentioned above, the VA medical opinion was prepared by a trained medical professional, reflects a review of the claims file and cites to specific information in the claims file. Moreover, the opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the VA medical opinion that the clinician reviewed the Veteran's claims file and considered the subjective complaints of the Veteran. Also, the VA medical opinion is supported by a rationale that the Board can use to weigh against the other evidence of record. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.