Citation Nr: 21041701 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-18 670 DATE: July 9, 2021 ORDER Service connection for low back condition, claimed as residuals of a lumbosacral strain, is denied. Service connection for deep vein thrombosis (DVT) of the bilateral lower extremities (BLE) is denied. FINDINGS OF FACT 1. The competent medical evidence indicates the Veteran's current lower back conditions were not caused by an in-service back strain or otherwise related to an injury, disease, or event during active service. 2. The competent medical evidence indicates that the Veteran's DVT was not caused or aggravated by any injury, disease, or event during service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a low back condition, claimed as residuals of a lumbosacral strain, are not met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. 2. The criteria to establish service connection for DVT are not met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to September 1968. He contends his current low back disorders are related to an injury in service and that his DVT was caused or aggravated by his low back disorders. The claim is denied because the medical evidence does not show a link (or "nexus") between the in-service back injury and the Veteran's current back conditions or DVT. The Board of Veterans' Appeals (Board) initially denied service connection for a low back condition and DVT in 2018. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), which vacated the denials and remanded the claims to the Board in a December 2019 memorandum decision. The Court found that a 2013 negative VA opinion was inadequate because it relied on the absence of documented treatment for a low back condition in service, and failed to discuss a September 1968 service record where the Veteran reported a lower back injury before separation. The Court remanded the DVT issue because it is intertwined with the low back issue. In August and December 2020, the Board remanded the claims to the VA Regional Office (RO) for additional VA medical opinions addressing the cause of the Veteran's low back condition and DVT. Additional VA examinations and opinions were completed in October 2020 and May 2021. The RO complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal link) between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service-connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A veteran may establish service connection on a "secondary" basis for a non- service-connected disability that was caused by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain diseases listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) may be presumed to be service-connected based on evidence of "continuity of symptomatology" without establishing a causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative arthritis, which is among the diseases listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and explain its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, the Board evaluates the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board determines whether the evidence supports the claim or is approximately balanced, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Low back condition, claimed as residuals of a lumbosacral strain The Veteran's current low back diagnoses are degenerative arthritis, intervertebral disc syndrome (IVDS), and lumbar radiculopathy. He contends his current low back disorders were caused by a back injury during basic training. The Veteran's service treatment records (STRs) contain only one reference to a low back injury. In a September 1968 document titled, "Statement of Medical Condition," the Veteran reported that he "pulled a muscle in [his] back" during the period between his August 1968 pre-separation physical examination and separation on September 4, 1968. There are no references to a low back injury or back pain before the September 1968 statement. In his August 1968 separation physical, the Veteran denied ever having had recurrent back pain and his relevant clinical evaluations were normal. The Veteran alleges that he has had continuous back pain since his discharge from active duty. However, the record indicates the Veteran has asserted various accounts of the onset of his back pain. The Veteran applied for service-connection of his back disorder in June 2012. In his application, he reported that his "back condition" began in the "1970's and '80s'." At the earliest, this would place the onset of the Veteran's disorder approximately two years after his discharge from active duty. In a June 2005 counseling note related to another disorder, the Veteran reported that he had had "multiple" back surgeries. In another note dated the same month, he reported that he had back pain from a military injury. However, he also stated that he had chronic back pain for "the past 15 years," or since 1990. He also reported that he had been on active duty from 1968 to 1970 which is not substantiated by the record. In December 1998, the Veteran reported to a VA Social Worker that he had served on active duty from August 1968 to September 1971. In May 2012 and November 2012 statements, the Veteran reported he "wrenched" his back while carrying a heavy object during basic training. He reported going to sick call the next day and being discharged from active duty due to back pain. However, these events are not documented in the STRs. The August 1968 examination report noted the Veteran was not qualified for retention due to a congenital right-hand deformity. To the extent that the Veteran reports he was discharged because of a back disorder, he is plainly not credible. Although the Veteran reported the back injury after the August 1968 examination, there are no records after that date indicating the status or reason for his discharge was changed to reflect a low back injury. The Veteran reported that after service, he was treated by Mercy Hospital in Springfield, Missouri. However, the hospital reported in November 2012 that if it had records of treatment from 40 years previously, they would have been destroyed. Similarly, the Social Security Administration (SSA) reported in July 2011 that it had also destroyed any records as to the Veteran's disability the Veteran had reported to VA examiners in May 2005 that he had been disabled since the late 1980s because of back problems. The Veteran contends he has had recurrent back problems from 1968 to the present. However, VA medical records include a September 2011 treatment note reflecting that the Veteran reported that he had low back pain primarily with weight bearing "over the past [few] months. He attributes this to slipping while walking down a hill." In a December 2010 treatment note, the Veteran reported that he strained his back a week earlier, when he was "reaching for candy at a Christmas parade." In a September 2013 medical opinion, a VA physician noted the Veteran's report of pulling a muscle in his back in September 1968. However, the VA examiner concluded there was no medical proof or other evidence of treatment related to the 1968 back muscle injury. The examiner noted the Veteran's 1977 and 1984 surgeries for ruptured disks but opined there was no medical evidence linking the 1968 injury with the Veteran's then-current disc disease that developed many years after service. In a November 2013 statement, the Veteran continued to report that he injured his lower back during service. He reported he was treated with a heating pad at a dispensary. The Veteran reported that he was medically discharged, but he was not informed of the exact medical reason, contrary to his representation above. He reported that after separation in 1968, he returned to work at a manufacturing company "haul[ing] boats." The Veteran reported he continued to have back problems and eventually saw a doctor in or around 1974. He reported he was referred to a specialist who diagnosed him with "lower lumbar disk problems." The Veteran reported undergoing surgeries to repair herniated lumbar discs in 1977 and 1984. In a June 2014 VA record, the Veteran reported pain and tenderness in his right buttock and lower back. The attending clinician diagnosed a lumbar strain. In an October 2020 opinion, a VA physician concluded the Veteran's post-separation back disorder was not related to a muscle strain in service. The physician explained that a back strain involves the muscles, and discs are separate and distinct anatomical structures of the back. The examiner explained that, medically, a disk requiring surgery could not be attributed to a muscle strain that occurred many years earlier. The examiner considered medical literature submitted by the Veteran but explained that the Veteran did not have the type of chronic muscle injury described in the article. The examiner opined that the Veteran's self-reported history was not sufficient to establish causation, as decades-later recollections are much more prone to error than documentation recorded at the time. The examiner noted the Veteran reported left leg pain associated with back pain in 1974, which strongly suggests a disk issue. The examiner concluded there was no objective basis to support an ongoing back muscle issue related to service, and that the medical documentation indicated the Veteran's herniated disk condition developed years after separation and not during or because of service. In its December 2020 decision, the Board found that the October 2020 opinion was not probative because it was based on an inaccurate factual premisethat the Veteran's muscle strain was documented to have resolved at separation. However, the examiners discussion of the anatomical difference between the muscles and disks of the back has not been shown to be factually inaccurate and is still relevant to the issue of causation. The Board will not disregard a generally responsive opinion but will instead weigh the opinion in light of all other evidence. See generally Dyment v. West, 13 Vet. App. 141 (1999). In a May 2021 addendum opinion, a VA examiner noted that, since 2012, the Veteran's low back diagnoses were lumbar arthritis, IVDS, and radiculopathy. The examiner indicated that she reviewed the medical articles and argument submitted by the Veteran in October 2020. The examiner also reviewed the Veteran's reports of an acute muscle pull during service but she concluded there was no evidence indicating that the muscle pull was chronic or caused chronic residuals. The examiner noted the Veteran reported additional, acute low back injuries in 2010 and 2011. She explained that the imaging of record showed degenerative changes which were most likely caused by age-related wear and tear. She noted that imaging did not reveal subluxation or other evidence of traumatic arthritis that would suggest an old back muscle injury was causing the Veteran's current symptoms. Given this evidence, she concluded the Veteran's current low back conditions were not caused by the September 1968 injury. In his November 2020 and June 2021 briefs, the Veteran asserted that the October 2020 and May 2021 VA opinions were deficient because they relied on the absence of in-service documentation of a low back condition. The Veteran emphasized that his back injury occurred after his separation examination but before the end of his term of active service. The Veteran also asserted the May 2021 opinion was deficient because it did not address whether the in-service back strain caused or aggravated any of his current back conditions. The Veteran contends that the RO did not comply with the Board's August 2020 remand instructions and requests an additional remand. However, when read together, the VA examinations, opinions, and other evidence of record is adequate to resolve the appeal and remanding for additional examinations or opinions is not necessary. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The May 2021 opinion correctly noted the in-service back strain occurred before separation in September 1968. The examiner highlighted the absence of other documented back issues in service because it was relevant to her opinion that the Veteran's back strain was not "chronic" during service. The examiner also based her opinions on the medical evidence after service, which indicated treatment for disk problems but not muscle strains. As noted by the October 2020 examiner, disks are distinct from the muscles of the back and a herniated disk requiring surgery could not be medically attributed to a muscle strain years earlier. The May 2021 examiner noted the Veteran had additional back injuries many years after service and post-service imaging suggested his current back conditions were caused by aging and wear and tear. She explained that imaging did not reveal the type of findings associated with traumatic arthritis or an old back injury. Additional opinions on secondary service connection and aggravation are not necessary. The back strain occurred in September 1968. The competent medical evidence indicates the Veteran's current back conditions were caused by aging and wear and tear, and not the 1968 back strain. The Board has considered the Veteran's lay assertions that he has had continuous low back pain since the 1968 injury, and that the injury is related to his current degenerative back conditions. The Veteran is competent to report in-service treatment for a low back strain and continued low back pain from service to the present. See Jandreau, Layno, above. However, as a layperson, the Veteran lacks the medical training to give an opinion linking his current age-related back disorders with the in-service strain. Id. The Board is not negating the probative value of the Veteran's lay statements solely because they are not supported by contemporaneous medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As noted above, the Veteran's SSA and surgical records were destroyed. However, the Veteran's inconsistent statements about the onset of his low back pain undermines his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has also considered the statements considering the evidence as a whole and finds that the self-interest and motivation of financial gain of the Veteran render his statements not credible. 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); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (the witness's credibility affects the weight to be given to his testimony). The Board has also considered the Veteran's November 2020 brief, which included an internet-based article, "Herniated disk," by the Mayo Clinic. The article discusses the symptoms and causes of disk herniation, but provides general information only. The article has minimal probative value as it does not expressly address the Veteran's history. See Wallin v. West, 11 Vet. App. 509 (1998). The article states that disk herniation "is most often the result of gradual, aging-related wear and tear called disk degeneration," and "rarely, a traumatic event such as a fall or blow to the back is the cause." The article also states: "sometimes, using your back muscles instead of your leg and thigh muscles to lift heavy objects can lead to a herniated disk, as can twisting and turning while lifting." However, the May 2021 VA examiner reviewed the article along with the Veteran's specific medical history and concluded his disk herniation was age-related. The probative value of the general medical article is substantially outweighed by the more specific and thorough VA opinions. For the reasons above, the preponderance of the evidence is against finding a link between the Veteran's current back conditions and his in-service back injury, or any other event, disease or injury during service. The claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); see Gilbert, above. 2. DVT The Veteran contends his DVT was caused by his lower back conditions or is otherwise related to an injury, event, or disease in service. STRs are silent for DVT or related symptoms. The Veteran's pre-enlistment and pre-separation physicals indicated normal clinical vascular evaluations. Immediately before separation, the Veteran reported pulling a muscle in his back but did not report blood clotting or DVT. VA medical records refect diagnoses and treatment for recurrent DVT from 1999 to the present. In a May 2021 opinion, a VA examiner concluded the Veteran's DVT was not related to service, or caused or aggravated by the Veteran's lower back conditions. The examiner noted that the Veteran has Factor V Leiden, a mutation affecting the clotting factors of the blood. The examiner explained that the mutation can increase the chances of developing abnormal blood clots, especially in the legs and lungs. She noted the Veteran's lifelong heavy tobacco use and explained that smoking affects blood clotting and circulation, which increases the risk of developing DVT. The examiner opined there was no relationship whatsoever between the Veteran's in-service acute back strain and DVT, and that DVT was caused by a genetic defect that clearly and unmistakably predated service and was not aggravated by the 1968 back strain. The preponderance of the evidence is against finding that the Veteran's DVT is related to service. The competent medical evidence indicates that DVT was caused by a preexisting genetic defect and/or smoking, and was not caused or aggravated by the 1968 back strain. To the extent that the Veteran asserts his current lower back conditions caused his DVT, the Board has denied service connection for those conditions. Without service connection for the underlying disability, secondary service connection must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The claim is denied. The Board has considered the Veteran's lay assertions that his DVT is related to his back conditions and/or the 1968 back strain. However, DVT is a complex medical condition and Veteran lacks the medical training needed to give an opinion as to its cause. See Jandreau, Layno, above. The Veteran's assertions are substantially outweighed by the May 2021 VA examiner's opinion that his DVT was caused by a genetic defect and/or smoking history. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); see Gilbert, above. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.