Citation Nr: 22012645 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-19 072 DATE: March 4, 2022 ORDER Entitlement to service connection for a lumbar disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. FINDING OF FACT The Veteran's diagnosed lumbar spine disorder is not related to his service. CONCLUSION OF LAW The criteria for service connection for a lumbar disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 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 November 1974 to November 1994. These claims are on appeal from an August 2015 rating decision. In a November 2020 decision, the Board denied service connection for a lumbar disorder and service connection for a left shoulder disorder. The Veteran appealed the Board's November 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board's denial of service connection for lumbar and left shoulder disorders and remanded those claims to the Board. Entitlement to service connection for a lumbar disorder The Veteran contends that his current lumbar disorder is due to service. Specifically, he contends that his lower back pain began in service and has continued to date. See February 2002 VA Form 21-526, Veteran's Application for Compensation. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain diseases listed in 38 C.F.R. § 3.309(a), like arthritis, service connection can be granted where the disorder onset to a compensable degree within a year after separation of service. 38 C.F.R. §§ 3.307, 3.309. A review of the record shows that the Veteran has been diagnosed with lumbar degenerative disc disease (DDD). See July 2019 VA Back Examination Report and August 2006 VA Spine Examination Report. The Veteran reported that he injured his back several times during service while playing sports. See March 2015 Statement in Support of Claim and August 2006 VA Spine Examination Report. The Veteran's service treatment records (STRs) contain several notes indicating injuries while playing basketball and roller skating. Specifically, June 1976 and November 1980 STRs note left foot injuries, a July 1987 STR shows a complaint of right-sided neck pain down the shoulder, and a January 1992 STR shows the Veteran twisted his right ankle all while playing basketball. A January 1981 STR shows the Veteran hurt his left ankle while roller skating, an April 1986 STR shows that he fell on his right hand while skating, and a May 1987 STR shows that he injured his right thumb while roller skating. None of these records show any lower back complaint in connection with any of these sports injuries. However, a review of his STRs does reveal lower back complaints. A May 1985 physical therapy consultation STR shows that the Veteran was prescribed physical therapy for a low back strain, but that the Veteran stopped by the next day to report that he no longer had a problem and that the pain disappeared with rest. He was advised to return if the problem returned. There is no record of follow-up, and the next lumbar complaint is in December 1993, when the Veteran complained of right-sided lower back pain that felt like muscle spasms. The December 1993 STR show mid-back tightness with no history of lower back pain, slightly tender thoracic paraspinal muscles, and mild tenderness across the upper right lumbar paraspinal muscle area. There is no further lower back complaint in the balance of the Veteran's STRs. The Veteran routinely denied recurrent back pain and "Normal" was routinely marked for spine, other musculoskeletal. See May 1983, March 1986, and March 1991 Reports of Medical Examination and Medical History. No lumbar disorders are noted on any of these in-service medical reports. The Board finds the Veteran's contentions are not credible and are not reflected by the contemporaneous in-service treatment records. While his STRs confirm two lower back pain complaints during service separated by eight years, the balance of his STRs is silent for any further lower back complaints and fail to show that the Veteran experienced recurrent lower back pain or lower back disorder. The Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). It must be considered whether there is evidence as to the severity of symptoms that would have made it "reasonable to expect" that at that time, he would have reported symptoms during treatment. Id. 272-74. If so, the absence of complaints during treatment may provide affirmative evidence of absence. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (2013). The Board acknowledges the Veteran's statements that his lower back pain began in service, caused his current back disorder, and continues to date, but affords these statements low probative value. The Board finds it reasonable to assume a chronic disability manifesting during service would be documented in the numerous in-STRs spanning his long military career. However, the two low back complaints appear to be acute and transitory in nature, as the complaints are separated by eight years, and neither complaint is shown to have any follow up or recurrence. The eight years that lapsed from the May 1985 lower back complaint to the December 1993 complaint of lower back pain factor against the Veteran's credibility when considering the chronicity of the in-service back disorder he contends. The STRs do not reflect a chronic back disorder of any degree. Additionally, the record shows that the Veteran received on-going treatment throughout his service, for flu symptoms and common colds, toe pain, abdominal pain, ear fullness, itchy eyes, right knee pain, neck stiffness, thoracic muscle spasms, right neck and shoulder pain, left arm pain, bilateral thumb numbness, right hand pain, corns, and left rhomboid muscle spasm, but there are no further lower back complaints or treatment. See generally STRs. The Board acknowledges that the Veteran's military occupational specialty is shown as Medical Service Craftsman, and he therefore had some type of medical background during service but finds that this also weighs against his claim of chronic in-service low back pain without more than two documented in-service low back complaints that are dated eight years apart. Particularly considering the somewhat regular and documented in-service complaints and treatment of thoracic and cervical spine problems, it is reasonable to believe that the Veteran, armed with some medical knowledge or experience, would report problems with his low back during treatment for his mid- to upper back and neck. This absence of evidence of lower back complaint during this time is more probative than the Veteran's assertion that he had such symptoms on a continual basis during active duty. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). Over the course of the appeal, the Veteran has been afforded two VA back examinations and one associated opinion was issued. See July 2019, March 2016, and August 2015 VA Examination Reports. In August 2015, the VA examiner gave a diagnosis of lumbosacral strain but rendered no opinion. A March 2016 VA examiner issued an addendum negative nexus medical opinion that the Veteran's lumbar disorder was less likely than not related to his service because the back complaints in the Veteran's STRs centered around his upper back, and not the lower back. The examiner noted some lower back entries in the STRs but remarked these appeared to be isolated and not of longevity. The examiner also noted the physical therapy note from many years ago which mentioned the back pains resolving. The examiner further noted that there are no records for many years after service concerning the lower back. For these reasons, the examiner opined that the Veteran's lower back disorder was not related to service, and there was no indication to suggest aggravation. The July 2019 VA examiner diagnosed the Veteran with lumbar DDD but did not render any opinion. The VA examinations and opinion provide the only competent medical evidence of record, and weigh against the Veteran's claim. Collectively, the examination reports reviewed the records, performed examinations, and considered the Veteran's lay statements and contentions regarding the nature and history of his lumbar disorder. The March 2016 examiner provided a sufficient rationale for the conclusion reached. Thus, the VA examiner's opinion outweighs the Veteran's lay contentions on the matter of whether his current back disorder is related to his military service. The only other evidence of record supporting the Veteran's claims is his own lay statements. In those statements, he contends that his lumbar disorder is related to service. In support, the Veteran noted that he injured his back several times in sports-related injuries. However, these back injuries are not shown by the contemporaneous evidence of record. Although multiple sports injuries are documented in his STRs, none of them show any lumbar back complaints. Also, the Board acknowledges that the Veteran has had medical training. In addition to his military occupational specialty of Medical Service Craftsman, a July 2010 VA treatment record notes that the Veteran recently graduated from nursing school. However, the VA medical opinion of record is the most probative and thorough medical opinion of record that considers the Veteran's in-service and post-service treatment history. Thus, after a review of the full record, including lay statement, STRs, and post-service medical treatment, the Board finds the March 2016 VA medical examination to be the most probative and convincing of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A thorough review of the record shows post-service treatment records that note upper back pain assessed as right trapezoidal sprain in May 1995, and lower cervical spine pain in May 1996. Private chiropractic treatment records from July 2001 through March 2002 show complaints of lower cervical tightness, pain, and adjustments, and thoracic adjustments, but no indication of any lumbar concerns or complaints. There is no mention of a lumbar disorder of record until the Veteran's initial February 2002 claim and June 2006 statement of lower back problems. The first mention in medical records after service is an August 2006 VA Spine Examination Report that shows a lumbosacral x-ray impression of minimal DDD. His VA treatment records thereafter show that he sought treatment occasionally for chronic low back pain. See, e.g., August 2019, May 2016, and August 2015 VA Treatment Records. The length of time between his 1994 separation from service and the August 2006 complaints of low back pain do not establish complaints of chronic back pain and weigh against finding that a lumbar disorder manifested to a compensable level during the first year following his separation. While the Veteran has noted his symptoms and in-service injuries, the best evidence of record shows that the Veteran did not experience a chronic in-service low back injury and that no low back disorder onset within a year after separation from service. Rather, the Board gives more probative weight to the competent medical evidence failing to find a link between the Veteran's in-service low back complaints and his current lumbar disorder. The Board also acknowledges the Veteran's contentions that he experienced low back pain early in his military career that he continues to experience. While the Veteran is competent to report observable symptoms, such as having back pain, the medical evidence of record, does not support his contentions. In this regard, the Board notes the post-service treatment records of record date back to 1995, within one year of his November 1994 separation. Those early treatment records show continuing treatment for the Veteran's thoracic and cervical disorder, for which service connection has been in effect since 2002. For the reasons discussed above, the Board finds that the absence of evidence of lower back complaint during the years immediately following his discharge is more probative than the Veteran's assertion that he had such symptoms continuously since separation from service. See Curry, supra. The Board therefore finds that continuity of symptomatology is likewise not established and further finds that the evidence is persuasively against finding that the Veteran's lumbar disorder was shown as chronic in service, manifested to a compensable degree within a presumptive period, or that continuity of symptomatology has been shown. Finally, the Board acknowledges the February 2018 argument of the Veteran's representative that the August 2015 VA examination report and March 2016 supplemental opinion are inadequate, as the opinion relied on the absence of ongoing treatment as the basis for the negative opinion and because the examiner was not paying attention to the Veteran during range of motion testing. The Board does not find this to be the case. As discussed above, the Board finds the absence of evidence of ongoing treatment probative to the issue of nexus in this case. Further, the opinion noted the acute nature of the in-service low back complaints and, like the Board, found the absence of post-service treatment records for many years to be more probative than the Veteran's statements regarding continuity of symptomatology. Finally, consideration of range of motion testing is a rating issue, does not affect the opinion as to the etiology of the Veteran's current lumbar disorder, and the opinion was not based in any way on range of motion testing. In sum, the Board finds that the competent, credible medical evidence of record shows that the Veteran's current lumbar disorder was is not related to service. REASONS FOR REMAND Entitlement to service connection for a left shoulder disorder The Veteran contends that his left shoulder disorder is related to his service, or alternatively, was caused or aggravated by his service-connected disabilities. The Veteran was afforded VA shoulder examinations in August 2015 and August 2019. The August 2015 VA examiner opined that it was less likely than not the Veteran's left shoulder disorder was caused or aggravated by his service-connected thoracic and cervical disabilities. The August 2019 VA examiner opined that the Veteran's left shoulder disorder was less likely than not due to his service because a pattern of chronicity was not shown. Neither examiner addresses the Veteran's contentions that his left shoulder disorder was caused or aggravated by his now service-connected right shoulder disability, and neither examiner addresses the Veteran's statement that his left shoulder disorder came on gradually with activities such as putting up tents and lifting, or his wife's statement of the Veteran relating in-service left shoulder injury while stationed in the Philippines while putting up mobile hospitals that were on pallets (ATHs). Thus, remand is warranted for an addendum medical opinion that addresses these theories. The matter is REMANDED for the following action: 1. Obtain an addendum opinion addressing the etiology of the Veteran's left shoulder disorder. A VA examination is not required unless the examiner finds that the following opinions cannot be provided without an examination. Specifically, the examiner is asked to opine as to whether: (A) it is at least as likely as not that the Veteran's left shoulder disorder is related to service, to include a gradual onset with activities such as putting up tents and lifting, or left shoulder injury while stationed in the Philippines while putting up mobile hospitals that were on pallets (ATHs). (B) It is at least as likely as that the Veteran's left shoulder disorder was caused by any service-connected disability, or combination of service-connected disabilities, or (C) It is at least as likely as not that the Veteran's left shoulder disorder was aggravated by any service-connected disability, or combination of service-connected disabilities. A complete rationale should be provided for any opinion rendered that is consistent with the pertinent evidence of record and that considers and discusses the Veteran's lay statements. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.