Citation Nr: 22014278 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-25 450 DATE: March 12, 2022 ORDER Entitlement to service connection for a lumbar spine disability is DENIED. FINDINGS OF FACT 1. A pre-service automobile accident and / or pre-existing lower back condition was NOT noted at the Veteran's entry on active duty service in the United States Air Force in June 2009. Additionally, the Veteran denied ever being involved in a pre-service automobile accident in June 2021. 2. The weight of the evidence is against a finding that the Veteran's currently diagnosed lumbar strain either began during, or was otherwise caused by, his service in the United States Air Force. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Air Force from June 2009 to January 2010, and from June 2010 to March 2011. The Report of Separation and Record of Service indicates that the Veteran received the Afghanistan Campaign Medal and the Global War on Terrorism Service Medal. Entitlement to service connection for a lumbar spine disability is denied. In May 2017, the Veteran submitted a VA Form 21-526b. Therein, the Veteran requested to reopen his previously denied claim for service connection for a lumbar spine disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014). Where a preexisting disease or injury is noted on the entrance examination, section 1153 provides that, "(a) preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (a). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The 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). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In October 2014, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board observes that the Veteran reported a pre-service visit to the emergency room, which was due to a basketball accident. A military provider reported that the Veteran endured an acute lower back sprain in December 2009. In August 2010, the Veteran reported intermittent lower back pain, which was worse at night. The military provider diagnosed lumbago. In November 2014, a notation was generated at the Avera McKennan Hospital. At that time, the Veteran reported current lower back pain. The Veteran relayed that he had been enduring come-and-go lower back pain after an injury in Afghanistan. In December 2014, the Veteran underwent a VA examination that considered the nature of any currently lower back disability. At that time, the Veteran reported that his lower back disorder started in Afghanistan. The examiner relayed that, "(r)eviewed post-deployment from 5-14-11 with no back or knee complaints noted. No referrals on pre-deployment in 2010. Reviewed the report of medical hx from 2008 with no back notations noted. Normal spine exam in 2008." In April 2017, a treatment note was generated at the Sioux Falls VA HealthCare System (HCS). At that time, the Veteran reported lower back pain. In September 2017, a treatment record was generated Sioux Falls VA HCS. At that time, the Veteran reported that he was in a motor vehicle accident at the end of May 2017. The Veteran reported some flares of back pain since that time. In November 2017, a notation was generated at the Sioux Falls VAMC. At that time, the provider relayed that the Veteran currently endured flares of lower back pain after an automobile accident in May of that year. In August 2018, the Veteran's attorney submitted a VA Form 21-4138. Therein, Counsel relayed that the Veteran desired to withdraw his claim for service connection for a lower back disability. In March 2019, the Board addressed the Veteran's claim for service connection for a lower back disability. At that time, the Board concluded that the criteria for service connection for a lumbar spine disability had not been satisfied. In February 2020, the Court of Appeals for Veterans' Claims (Court) granted a Joint Motion for Partial Remand (JMPR) filed by the parties. By granting the motion, the Court vacated and remanded the Board's March 2019 denial of the claim for service connection for a lower back disability. In the JMPR, the parties found that the December 2014 VA back examination was inadequate for this service-connection analysis and that the Board should secure a VA examination report that complied with Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). In May 2020, a notation was generated at the Sioux Falls VA HCS. Therein, a provider noted that the Veteran currently endured Lumbago, which was previously identified / diagnosed in June 2017. In July 2020, the Board addressed the Veteran's claim for service connection for a lower back disability. The Board remanded the claim to the AOJ to obtain an adequate VA examination report that complied with Sharp. Id. In May 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured lumbar spine disorder. The examiner reported a current diagnosis for lumbar strain. The Veteran reported that he was seen for back pain during service. In the resultant opinion, the examiner appeared to attribute the Veteran's current lower back disorder to pre- and / or post-service automobile accidents. The examiner did not address whether any pre-service lower back injury was aggravated by the Veteran's U.S. Air force service. In June 2021, correspondence from the Veteran's attorney was associated with the claims file. Therein, counsel relayed that, "(the Veteran) has never been in a car accident, and he does not know why the examiner believes that he was in two." In September 2021, the Board addressed the Veteran's claim for service connection for a lower back disability. The Board found that new and material evidence had been submitted to reopen the Veteran's claim for service connection for a lower back disability. The Board noted that the Veteran withdrew this service-connection claim in 2018. However, the Board also noted that the February 2020 JMPR did not address or recognize the request to withdraw; consequently, the Board retained jurisdiction over the issue. At that time, the Board found the May 2021 examination report inadequate for this service-connection analysis. The Board relayed that the examination report did not adequately address all of the theories of the case, to include whether a 2006, pre-service lower back injury in an automobile accident was aggravated during Air Force service. The Board remanded the claim to the AOJ in order to obtain an adequate, addendum VA examination report. In November 2021, an addendum VA opinion was associated with the claims file. Therein, the examiner was asked whether clear and unmistakable evidence indicated that the claimed Veteran's currently reported lower back disorder pre-existed U.S. Air Force service. In the resultant report, the examiner opined that the Veteran's current lower back strain was less likely than not (less than 50 percent probability) incurred in, or caused by, an in-service injury, event, or illness. The examiner supplied the following rationale: "STRs are negative for any chronic back diagnosis during active duty service. Veteran separated from service 03/05/2011 and no separation exam available for review. The veteran did suffer from a lumbar strain in 2009 while working out." The examiner relayed that, "(t)here is evidence that veteran noted a previous back injury due to MVA in 2006 prior to entrance to service which required physical therapy but this condition was resolved as entrance exam 2008 noted normal spine and was silent for any residual back condition. The veteran's currently diagnosed Lumbar strain in 2021 is separate and unrelated to the acute complaint in 2009 or the pre-service injury in 2006. No objective evidence to support exacerbation, flare ups or increased treatment for a chronic lumbar spine condition that existed prior to service. Lumbar strain diagnosis rendered in 2021 is not a continuation of the pre-service injury in 2006 nor the 2009 acute strain." In December 2021 and January 2022, the Veteran's attorney submitted articles that addressed possible causes for lower back pain, to include military service. The Board has reviewed the submitted articles. After review, the Board notes that the articles discuss possibilities. However, the submitted articles do not address the specifics of the Veteran's claims file, to include his in-service and post-service lower back symptoms and / or the etiology of the Veteran's currently diagnosed lower back strain. On numerous occasions during the claim period, the Veteran's government and non-government treatment records have been associated with the claims file, to include those generated at the Biloxi VAMC, Sioux Falls VAMC, Iowa City HCS, St. Cloud VAMC, and VA NWIHS. After deliberate review of these medical records, the Board finds that these records do not indicate that the Veteran demonstrated a lower back disorder prior to / or at his entry onto U.S. Air Force active duty service. Moreover, the Board observes that it was noted that the Veteran reported, or he did not report, back pain and / or spinal issues at these facilities at various times during the claim period. The Board also finds that these records do not contain an etiological opinion that indicates that the Veteran currently endures a lower back disability that was incurred during service in the U.S. Air Force. At various times, during the claims period the Veteran has reported lower back pain. The Veteran has also posited that his lower back pain is the result of, etiologically related to, his service in the U.S. Air Force. The Board notes that, while the Veteran is competent to testify about the symptoms he has observed during the course of his claimed disability, he is not competent to identify the etiology of the currently diagnosed lumbar strain. Importantly, the Board notes that, in the STRs, the Veteran reported that he endured a pre-service ER and / or hospital stay because a basketball injury, and a motor vehicle accident (MVA) was crossed out. In June 2021, the Veteran's attorney relayed that the Veteran had indicated that he had never been in an MVA. Consequently, at this time, the Board finds that it is unnecessary to address whether a pre-service lower back injury was aggravated beyond its normal course during the Veteran's U.S. Air Force active-duty service as the presumption of soundness applies in this case. At this time, the Board finds that the Veteran retains a current diagnosis for a lumbar strain. The Board also finds that the Veteran was treated for back pain during service. Consequently, the evidence of record substantiates the first two requisite elements of the Veteran's direct service connection claim for a lumbar spine disability. See Hickson, 12 Vet. App. at 253. However, the Board now concludes that the evidence of record does not indicate that there is an etiological relationship between the Veteran's current lumbar spine disorder and his U.S. Air Force service. Specifically, after review of the claims file and the medical records and examination reports found therein, the Board finds that a competently identified, affirmative medical nexus has not been proffered for a relationship between the Veteran's current lower back disorder and his military service. While the Veteran reported several instances of back problems during service, as a layperson, he is not competent to provide an etiological opinion as to whether these inservice complaints are manifestations of a current diagnosed chronic lumbar strain. Notably, following treatment in November 2009 for back pain, a month later he did not report back problems during his December 2009 pre deployment examination. Likewise, while he reported back pain and was assessed with lumbago in August 2010, he reported no back problems on his May 2011 post deployment examination. The November 2021 considered these episodes of back pain followed by denials of back pain in subsequent records to be representative of acute episodes of back pain rather than manifestations of a chronic disabling disability. Moreover, the examiner considered these records, as well as the Veteran's reports of back trouble over the years and opined that his current back disability is not etiologically related to his inservice complaints. Consequently, the third and final requisite element for direct service connection has not been substantiate. See id. Ultimately, the evidence pervasively favors a finding that the Veteran's current lower back / lumbar spine sprain did not result from his active-service in the U.S. Air Force. The doctrine of reasonable doubt is not applicable in this case because the preponderance of the evidence is weighs against the Veteran's service- connection claim for a lower back / lumbar spine disability. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.