Citation Nr: 21042234 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-28 084 DATE: July 12, 2021 ORDER Entitlement to service connection for a back disorder is denied. FINDING OF FACT The Veteran's back disorder is not secondary to service-connected status post ankle fractures, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from January 1976 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision by a Department of Veterans Affairs (VA) regional office. In July 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. In a September 2019 decision, the Board remanded the issue for further development and a VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board is satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a back disorder The Veteran contends that he is due entitlement to service connection for his back disorder. In the record, the Veteran raises the theory that his back disorder is secondarily service connected to his bilateral ankle fractures. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Here, the Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of any back disorders in service. On the Veteran's separation exam in December 1989, he reported no recurrent back pain. The separation exam also made a note of the Veteran's in-service ankle fractures and swollen and painful joints due to the ankle injuries. The Veteran made the claim in December 2014 that he was not offered a separation exam. However, the Board has identified the separation examination in the record and observes that it does not report any back pain or abnormalities of the spine. The Veteran's private treatment records find that he first reported back pain and issues in July 2012. The Veteran stated that he had back pain and radiation down his right leg for about 10 months. The Veteran also reported that he was uncertain what caused the back pain and noted that chiropractic treatment and therapy did not relieve the issue. Dr. D.K. ordered an MRI. Upon review of the imaging, Dr. D.K. assessed the Veteran with lumbar disc herniation and lumbar radiculopathy. In August 2012, the Veteran was seen again by his private provider for a pre-operation visit. At this appointment, the Veteran was seen by Physician Assistant A.R. who found the Veteran to have degenerative disc disease along with the previously diagnosed lumbar disc herniation and lumbar radiculopathy. The Veteran underwent back surgery (lumbar microdiscectomy) in August 2012. In September 2012, the Veteran was again seen by Dr. D.K. for a post-operation visit. The Veteran reported that his leg pain was gone and that he was becoming more active again. The record is silent for back pain or complaints until March 2018, when private examiner Dr. D.W. noted minimal disc bulging at L3-L4 and mild disc bulging at L4-L5. The treatment record also reported mild degenerative joint disease in the Veteran's back, as well as small left parasagittal disc protrusion at L5-S1, and lumbar radiculopathy. While Dr. D.W. recorded these issues in the back, the Veteran reported no back pain on the exam. In April 2018, the Veteran was seen at a private pain management center by Dr. A.S. who treated the Veteran. In the April 2018 treatment notes, the Veteran reported that he was experiencing pain in the lower and middle sections of his back, with aching, burning, sharp, shooting, stinging pain. The Veteran also reported that the pain began about five months earlier. He stated that the pain was worse with sitting, standing, walking, lying down, exercise or physical activity. The Veteran also stated he was experiencing pain radiating down the left leg. The private treatment records from Dr. A.S. show he treated the Veteran eight times with an epidural steroid injection to help relieve the Veteran's back pain. Between April 2018 and September 2019, the Veteran was receiving consistent pain management treatment for his lumbar back condition. In November 2019, the Veteran received a VA examination. His left knee and bilateral hips were examined. The VA examiner found that the Veteran had a bulging disc and degenerative disc disease in his back. The examiner stated that the Veteran's back issues caused the left knee pain, as well as hypersensitivity in his thighs, and a reduction of strength in his hips. In November 2020 the Veteran was seen at the Montgomery VA Clinic. The Veteran reported having chronic back, hip, thigh, knee, and ankle pain. In December 2020 the Veteran was again seen by a private provider who conducted an MRI. The imaging test showed the Veteran had disc herniation at L4-L5, mild degenerative changes in the lower lumbar spine, and a number of areas showing mild disc bulging. In January 2021 he was again seen at the VA Clinic where he was found to have severe chronic low back pain, degenerative disc disease, arthritis, and some spinal cord compression. The Veteran was advised to get back surgery to prevent severe disability to his lower extremities. The Veteran received the back surgery in January 2021 to repair his L4-L5 disc herniation. In April 2021, the Veteran was afforded a VA examination for his back issues. The examiner found the Veteran to have degenerative arthritis, lumbar radiculopathy, and intervertebral disc syndrome (IVDS). The Veteran reported that he was chasing someone while in the military when he stepped in a hole, fracturing his ankle and jolting his back. The Veteran reported that the weight of the ankle cast caused him to strain his back and altered his gait. The Veteran also reported being seen in-service for his back and receiving Motrin and muscle relaxers as treatment. The Veteran presented to the examiner that he was having constant pain in the lumbar region of his back and pain radiating down both legs. The Veteran reported pain when walking, standing, sitting, and riding in a car. He stated that he struggles bathing and getting dressed due to the pain. The examiner performed range of motion testing and found the Veteran's back motion to be greatly decreased. The examiner also diagnosed radiculopathy. The examiner also stated that the Veteran had IVDS of the thoracolumbar spine. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that upon thorough review of the evidence, the records were silent as to an injury, complaint, or evaluation of the back during his active duty service. The examiner also stated that the available records do not show any back issue until his diagnosis of a bulging disc and degenerative disc disease in 2012, more than 20 years after the Veteran's separation from service. The examiner also opined that the Veteran's back disorder is less likely than not proximately due to his service-connected ankle disability. The examiner found that the back and ankle are not medically related, as the ankle is a separate entity entirely from the back and is unrelated to it. The examiner also stated that a thorough review of the medical literature failed to demonstrate a causal relationship. The examiner also reported that no baseline level of severity could be established and regardless of any established baseline, the Veteran's back disorder was less likely than not aggravated beyond its natural condition by his service-connected ankle condition. After a thorough and full review of the evidence of record, the Board finds that the Veteran has not established the necessary elements to succeed on a direct or secondary service connection claim. While the Veteran undoubtedly has serious current back disorders, the record is silent to any in-service injury, event, or illness. There is also no evidence of a link or causal relationship between the Veteran's service and his current back disorders. To the contrary, the April 2021 VA examiner found it to be less likely than not that the Veteran's current back disabilities are related to service. There is no competent and probative evidence to the contrary. Therefore, entitlement to direct service connection for the back disorder is denied. The evidence also fails to show that his back disorder is proximately due to or aggravated by the service connected ankle disability. There is no evidence of record relating the two conditions and the April 2021 VA medical examiner specifically found no medical literature to support a relationship between the back and ankle on a causation or aggravation basis. This opinion, too, is uncontradicted by any competent and probative evidence of record. The Veteran has submitted lay evidence in the form of a written statement, in oral testimony at the Board hearing in July 2019, and in reports offered at the VA examination in April 2021. The Board has thoroughly reviewed and weighed these lay statements from the Veteran. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran is not found to have the requisite medical knowledge to identify any of his back conditions. The Veteran also does not report any contemporaneous medical condition in any of his offered lay statements. Finally, the Veteran's lay statements are insufficient to support any of the diagnoses made by the medical professionals he was examined and treated by. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board, in weighing all of the evidence of record, finds that a preponderance of evidence stands against the Veteran's claim for service connection for a back disorder and is therefore denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.