Citation Nr: 21041712 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-37 632 DATE: July 10, 2021 ORDER Service connection for a back disorder, to include degenerative arthritis of the spine, is denied. FINDING OF FACT The Veteran's back disorder did not manifest to a compensable degree within one year of service discharge and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for a back disorder, to include degenerative arthritis, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from March 1981 to March 1984. His military occupational specialty (MOS) was a Machinist's Mate. This matter was most recently before the Board in February 2021. The Board remanded the matter for further development because there was not substantial compliance with the Board's previous remand directives regarding the VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Such development has since been completed and the Board is satisfied that there has been at least minimal compliance with the remand directives. The Veteran seeks service connection for a back disorder that he alleges began during his service in the Navy. In an August 2020 letter, the Veteran indicates that while he was deployed, he visited the ship doctor a few times regarding soreness in his back. He attributed this pain to his work as a machinist's mate where he was required to do a lot of cleaning and bending. See August 28, 2020 Correspondence. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). At his enlistment physical, the Veteran denied experiencing back pain and was clinically evaluated as normal. Unfortunately, additional service treatment records (STRs) were unable to be located. See November 6, 2012 Administrative Decision. In such situations, where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against the VA, arising from missing records. The Veteran was provided notice and given the opportunity to submit copies of his STRs or provide a location from which they could be obtained. To date, additional STRs have not been provided and the Veteran has indicated that he does not have any in his possession. In February 2013, the Veteran was afforded a VA examination and diagnosed with lumbar spondylosis that had an onset date of 2005. The Veteran told the examiner that his lower back pain began in 1983 and that he did not have any specific injuries at the time. Rather he reported beginning to experience lower back pain while bending, lifting, and twisting, although he denied receiving any medical treatment at that time. The Veteran described the pain as variable, noting that it would come and go. Since onset, the Veteran indicated that his pain has worsened, and resulted in some intermittent numbness in his right leg which eventually caused him to seek treatment from a private physician in 2005. Currently, the Veteran reports variable lower back pain that increases with standing for more than 20 minutes without moving, or sitting for longer than 30 minutes without moving. Along with lower back pain, he reports experiencing mild intermittent numbness and tingling in both legs with no sciatica-type pain. The examiner opined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because despite not doubting the Veteran's claims that his pain began during service, there were no STRs available to substantiate the claim. The examiner indicated that since the Veteran did not seek treatment until 21 years after discharge from active duty, he could not state that this back condition was incurred in or caused by in-service injury, event, or illness. In March 2020, an addendum opinion was obtained in which the examiner opined that it was more likely than not that the degenerative joint disease the Veteran presented with developed in the 2000s and not in the mid-1980s or within a year of separation. The examiner indicated that since there were only minimal degenerative changes documented in 2013 lumbar x-rays, this was medically consistent with his initial diagnosis occurring sometime in the early to mid-2000s. The examiner based this rationale on the fact that within five years of the initial x-ray in 2013, or within 13 years of the MRI in 2005, it was noted that the Veteran had a more advanced multilevel lumbar spine disease. The examiner explained that these significant degenerative changes occurring within a decade in the 2000s, as well as the fact the Veteran didn't present with a diagnosis or treatment for the low back until decades after service separation, were helpful in establishing an approximate estimated timeline for the development of osteoarthritis. In March 2021, an addendum opinion was obtained in which the examiner opined that it was less likely than not (less than 50% probability) that the Veteran's back disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that after a review of the records, there was insufficient evidence to support that the Veteran developed a back condition during his military service that became an ongoing concern requiring evaluation and treatment by medical providers. Specifically, the examiner opined that there is insufficient evidence to support a traumatic back injury during his military service and the patient's medical records are silent for a back condition from the time of discharge to 2005, a period of over 20 years. Additionally, the examiner indicated that radiographic evaluation revealed age related degenerative changes and no significant posttraumatic degenerative changes. Further, the examiner noted evidence of a motor-vehicle accident which resulted in back pain in 2018, which the examiner opined could explain his current back symptoms. Therefore, the examiner opined that it was less likely than not that the Veteran's current back condition was incurred or caused by injuries sustained during his military service. VA treatment records show a history of low back pain. For example, an October 2014 VA treatment note shows that the Veteran reported a recent flare in his back pain which was described as acute and constant. In August 2018, the Veteran received x-rays after a motor vehicle accident that he indicated worsened his back pain. In September 2018, the Veteran was referred to physical therapy after this accident. Private treatment records from Dr. Mehta show that in February 2004, at an initial visit to establish care, the Veteran did not report a history of or current lower back pain. In May 2005, the Veteran presented for an initial visit with Dr. Hansen and exhibited numbness in the left leg and L5 S1 distribution intermittently but worse at night. The Veteran was described as very health and indicated that he played basketball several days per week. The Veteran also indicated that he occasionally had lower back pain which was described in the treatments notes as positional at times with tingling in paresthesias along the left lateral thigh into the left calf area. In June 2005, the Veteran received an MRI of his lumbar spine which showed degenerative changes most severe at L5-S1 where bulging of the disc and focal left sided protrusion resulted in bilateral neural foraminal encroachment and encroachment of the left S1 nerve root in the lateral recess. In March 2007, the Veteran reported that his back and legs hurt again. An April 2007 private physical therapy note indicates that the Veteran reported a resolution of his lower back pain, no radicular symptoms, and indicated that he was returning to his community gym for independent exercise. The Veteran provided a private medical opinion dated January 2013 from Dr. Hansen. Dr. Hansen indicated that five years prior, the Veteran complained of radiating pain in his lumbar area and symptoms of numbness in his right leg. Upon examination, the Veteran was diagnosed with sciatica caused by his L4, L5 disk degeneration. Dr. Hansen indicated that the Veteran continued to have intermittent symptoms from that condition. He opined that during the Veteran's time in the military, he was involved in the repairing of equipment that placed him in very awkward cumbersome positions for repetitive and long periods of time that may have resulted in slow degeneration of the disk. Dr. Hansen opined that this may be contributing to the arthritis now present in his back with the findings demonstrated on his MRI, including encroachment by his disk on his exiting nerve root causing the sciatica he is complaining of. The Board finds that the evidence is insufficient to show that the Veteran had a back condition that occurred during or was otherwise caused by his active service. First, based on the evidence of record, the Veteran first sought treatment for his back disorder in 2005, 21 years after discharge from service. The treatment records describe the pain as intermittent and show periods of resolution. At the time he sought treatment for his back disorder, the Veteran reported being active and playing basketball multiple times per week which suggests mild or intermittent symptoms. Moreover, there is no record of any specific back injury either in service or in the years after service, with the possible exception of the motor vehicle accident decades after service. Therefore, there is insufficient evidence of continuity of symptoms in the immediate years after his separation from service. The prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, which weighs against the claim. The Veteran was afforded a VA examination in February 2013 and two addendum opinions were obtained in March 2020 and March 2021. The Veteran submitted a private medical opinion from January 2013 in support of his claim. The Board has considered both the VA and private examinations in their entirety, however, has ultimately chosen to give less probative weight to the private opinion. The Board assigns great probative weight to the VA medical opinions which each found that Veteran's back disorder was less likely than not related to his active service. Taken together, the opinions establish that the Veteran's back disorder is less likely than not to be related to an in-service injury, event or disease. Each opinion was formed after reviewing the Veteran's claims file in its entirety and the examiner provided a reasoned conclusion and clear rationale to support their determination that the Veteran's back disorder was not causally related to service. The Board assigns less probative weight to the January 2013 private medical opinion from Dr. Hansen, as the opinion is conclusory in nature and unsupported by adequate rationale. While the opinion cannot be ignored or disregarded, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The opinion from Dr. Hansen is highly equivocal in nature in that he suggested that the in-service complained may have contributed to the current back disability. The Board notes that medical opinions expressed in terms of "may" also imply "may not" and are too speculative to establish medical nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, the private medical opinion, while not discounted entirely, is found to be less probative that the collection of VA opinions which explained in great detail why the degenerative changes in the Veteran's spine were less likely to have been a result of his military service. It is also noted that Dr. Hansen failed to rule out or explain the age related findings in the imaging of the Veteran's back. While the Board acknowledges that the Veteran's STRs are not available and that he reports having sought treatment for a back condition that began during service, the Board is ultimately unable to use these statements as sufficient evidence that his back condition was caused by active duty. Although the Veteran is competent to describe his symptoms and indicate the type of work he completed as a Machinist's Mate, he is not competent to determine a causal connection between his claimed symptoms in service and his current symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board will give more probative weight to the medical opinions in this matter rather than lay evidence to determine the causal nexus. Given the many years intervening service and the first indication of medical treatment, in conjunction with the negative nexus opinions provided by VA examiners, the Board finds that the probative evidence is against the Veteran's claim of service connection for a back disorder. (Continued on the next page) Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claim for service connection for a back disorder is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.