Citation Nr: 21042617 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-33 270 DATE: July 13, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran's low back disorder had its onset during or is etiologically related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1988 to December 1992, including in the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In February 2020, the Board remanded this matter for further development. The agency of original jurisdiction (AOJ) was asked to obtain a VA examination and addendum medical opinion considering lay and medical evidence. The Veteran underwent a VA examination in April 2021. After reviewing the examination and medical opinion, the Board finds that they substantially comply with the prior remand directives. Accordingly, the Board will issue a decision on the merits. The Board notes that at least some of the Veteran's service treatment records were previously found to be unavailable. See VA Memo, January 2010. Although many service treatment records were associated with the claims file in 2018, it is unclear whether any records remain missing. In cases where service records are missing, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of any veteran who engaged in combat with the enemy in active service, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). The combat presumption in section 1154(b) does not alter the requirement of a current disability and a nexus between such disability and military service in a claim of service connection. See Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). 1. Entitlement to service connection for a low back disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a low back disorder. Therefore, the claim must be denied. The record reflects a current diagnosis of mild multi-level spondylosis and small disc extrusion L5-S1. See C&P Exam, April 2021. Regarding the element of an in-service occurrence, the Veteran engaged in combat with the enemy during service, and, thus, the combat presumption applies to this case. 38 U.S.C. § 1154. He has asserted that he experienced back pain in service, including from carrying heavy machine guns and packs, and jumping from helicopters and other vehicles. Consistent with the applicable presumption, the Board will resolve reasonable doubt in the Veteran's favor and concede the existence of back pain in service. The remaining question for the Board is whether there exists a nexus between a current low back disorder and the back pain during military service. 38 C.F.R. § 3.303. Available service medical records do not show any reports, symptoms, treatment, or diagnoses of back pain or a back disorder. The Veteran's separation exam found a normal spine and musculoskeletal system in September 1992, and he denied any recurrent back pain in his report of medical history. Private medical records show that the Veteran had radiographic imaging testing of the lumbar spine in May 2002. The clinician noted severe low back pain and left buttock pain without a history of trauma or prior surgery. He did not attribute the Veteran's disorder to service, and the Veteran did not report a history of symptoms dating to service at that time. The clinician assessed an L5-S1 disc extrusion without discernable mass effect on nerve roots, among other spine disorders. VA medical records show that the Veteran attended a primary care appointment in March 2004. He reported getting exercise on the job, hiking, playing soccer, walking, hunting, and fishing. A review of symptoms was negative for back pain, and the Veteran did not report any current back-related symptoms. The Veteran sought treatment at a VA emergency department in January 2007. He reported that he injured himself while lifting something in the previous month and had two falls since that time. A physical examination revealed that the back was non-tender, and the Veteran denied current back pain. The physician assessed neck pain with radiculopathy and a likely herniated disc. In January 2007, the Veteran had a neurosurgery consultation for pain between his shoulder blades. The clinician noted that the Veteran was well until December 2006, at which time he slipped on ice in a driveway. The Veteran did not report that his back pain began during military service, and the clinician did not document a history of back pain dating to that time. The assessment was listed as upper thoracic spine pain with radiating pain and numbness in the right C6-T1 distributions. The Veteran filed a claim of service connection for a back condition in March 2009. Thereafter, he attended a VA examination in December 2009. He reported that his back pain onset in 1991, but that he did not go to sick call for that issue during service. He stated that he jumped out of vehicles and fast-roped out of helicopters four or five times. After service, he reported having four or five lower back injuries, including falling off of a two-story building in 1997 and slipping in a driveway about two years ago. The examiner listed an impression of thoracic and lumbar strain, and noted that there was no documentation of problems in that area during service and that the Veteran had two major injuries since leaving service. The Veteran underwent another VA examination in April 2021. The examiner, Dr. A.A., reviewed the claims file, and opined that it is less likely than not that the Veteran's back disorder was incurred in or caused by military service. As rationale, she explained that the separation exam made no mention of back issues at that time and that there is no medical evidence that a back condition was incurred in service. She considered the Veteran's reports of back pain in service, and presumed that a muscle strain may have occurred after performing strenuous military duties. However, she explained that pain from a muscle strain usually resolves over time with no residuals, and noted that records did not show complaints of back symptoms until a few years after he left the service. The Board has reviewed the remainder of the Veteran's private and VA treatment records. However, these records do not show a medical nexus between back pain in service and a current disorder to the extent required to support a claim of service connection. 38 C.F.R. § 3.303. After careful review of the record, the Board finds that the preponderance of the evidence is against a nexus between the Veteran's low back disorder and military service. In reaching this conclusion, the Board has reviewed the medical evidence. Dr. A.A. opined that it is less likely than not that the Veteran's low back disorder had its onset during or is related to service. She considered the Veteran's reports of low back pain from service duties, but observed that the separation examination was negative for a back disorder at that time, suggesting a resolved muscle strain. As Dr. A.A. reviewed the claims file and issued a persuasive medical opinion consistent with her expertise, the Board finds her opinion to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that a VA primary care clinician found no evidence of back pain in March 2004, and a VA neurosurgery clinician stated that the Veteran was well until he tripped on ice in December 2006. The Veteran did not report to either of these clinicians that he had back symptoms since military service. Moreover, private medical records from May 2002 found no history of trauma and gave no evidence linking the Veteran's back pain to service. The Board finds that this evidence tends to weigh against a nexus based on continuity of back symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a prolonged period without medical complaint can be a factor in determining a nexus between a disorder and military service); Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may properly consider internal consistency and consistency with other evidence of record when determining the credibility of lay reports). The Board has considered the Veteran's lay reports. He is competent to report back pain during military service, and his reports of back pain in service are conceded under the combat presumption. 38 U.S.C. § 1154(b). However, as a lay person, he does not have the required medical knowledge to link his current back disorder to the back pain experienced during military service, as such a determination requires specialized anatomical expertise and knowledge of the musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board is cognizant that the Veteran did not attribute his back pain to military service until after filing a claim for benefits in March 2009, despite seeking treatment for back pain prior to that time, which tends to weigh against his reports that he experienced back pain continually since military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is fully justified in determining whether lay evidence is credible). The Board is sincerely grateful for the Veteran's honorable military service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of service connection for a low back disorder. Therefore, the claim must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.