Citation Nr: 22014366 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-63 295 DATE: March 12, 2022 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The competent and credible evidence does not demonstrate that the Veteran has a low back disability. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard of Tennessee and as an Army Reservist. He had active duty service from December 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in July 2021 for further development. The Veteran was scheduled to testify at a hearing before the Board on June 2019. An April 2019 letter notified the Veteran of the date, time, and location of the hearing. However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). The Board notes that in the November 2021 appellate brief, the Veteran's representative indicated that the Veteran had provided a statement from his private physician regarding his neck pain. As the issue of a neck disability is not before the Board at this time, it will not consider this statement at this time. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a low back disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran contends that his low back disability was either incurred in service or secondary to his service-connected left ankle disability. Service treatment records do not show complaints of, treatment for, or a diagnosis of a low back disability. They do show complaints of and treatment for a right arm injury, a right shoulder injury, and left foot and ankle pain. In a May 2016 VA examination, the examiner found that the Veteran did not have a diagnosis of a back condition. Upon initial range of motion testing, the Veteran had forward flexion to 110 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. Pain was noted on forward flexion and extension, but it did not result in functional loss. The examiner found that the abnormal range of motion itself did not contribute to functional loss. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation. There was also no guarding, muscle spasm, loss of muscle strength, loss of senses, radiculopathy, or ankylosis. Upon repetitive use testing, the Veteran had no additional loss of function or range of motion. The Veteran was also examined immediately after repeated use over time and the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner found that less movement than normal was an additional contributing factor of disability and described prolonged bending, standing, and walking would cause low back pain. The examiner further found that the Veteran's back condition impacted his ability to work and described the Veteran's report that he had low back pain with prolonged bending, standing, and walking. The examiner opined that it was less likely than not that the Veteran's back condition was due to his service-connected disability as there was no documentation of a back condition other than intermittent post-service back pain. In the June 2016 notice of disagreement, the Veteran asserted that his low back condition was incurred in service with continuity of symptomatology since his release from active duty service. He also contended that his low back disability was due to his service-connected left ankle disability. In the December 2016 VA Form 9, the Veteran contended that his back disability was secondary to his left ankle due to gait. He indicated that as his back disability would have progressively gotten worse, he would not have complained of back pain in service. In a November 2020 appellate brief, the Veteran's representative repeated the contention that his lower back condition was due to the Veteran's military service or secondary to his left ankle sprain and fracture. The representative also contended that the Veteran's service-connected left ankle disability exacerbated his back and caused an altered gait due to improper body mechanics resulting from pain and discomfort. In a September 2021 VA examination opinion, the examiner opined that it was less likely than not that the Veteran had had functional impairment of earning capacity of the lower back. The examiner noted that the evidence showed lower back pain with negative imaging studies from 2012 and 2014 and the May 2016 VA examination noted limitations with prolonged standing, bending, or walking. She opined that the Veteran would be able to perform sedentary work and that he would benefit from a stand-to-sit desk to allow for changes in positions. The examiner opined that it was less likely than not that the Veteran's back pain was due to his military service. She noted that the first documented complaint/treatment of back pain was in 2012 with negative imaging in 2012 and 2013. While the Veteran reported back pain since service, the examiner found that there were no documented complaints or treatment of back pain during service or after service prior to 2012. The examiner noted that records of back pain occurring during active duty were per the Veteran's report only. While the Veteran was credible to report symptoms, he was not qualified to ascribe symptoms to a diagnosis. Additionally, the examiner opined that it was less likely than not that the Veteran's back pain was caused or aggravated by his service-connected left ankle disability. She found that there was no documented evidence to show that the service-connected left ankle disability was severe enough to result in a significantly altered gait or other anatomical changes that would result in stress or strain of the back. She also found the credible medical evidence did not show aggravation of low back pain by his ankle condition. There was no evidence of significant or prolonged periods of altered gait related to his ankle condition. In fact, progress notes from 2013 to 2016 showed a normal gait. The evidence also did not show altered stance or weight bearing status due to the Veteran's service-connected ankle condition. In a November 2021 appellate brief, the Veteran's representative contended that the lack of consistent documentation in service treatment records related to the Veteran's low back disability claim was due to fear of career setbacks, loss of retirement benefits, or looking weak, incompetent, or cowardly. He further stated that the Veteran's service treatment records were focused on his ankle injuries, but that they did not include an enlistment or separation examination. Thus, while all available medical records were reviewed by VA, this was "an extremely distorted viewpoint." As such, the examiner could not offer an opinion (exception speculation) that the Veteran did not have a back injury during service. Finally, the examiner contended that the Veteran believed that he injured his back in service and indicated that the degeneration of the intervertebral disc often resulted in small injuries that may not cause pain at the time the injuries actually occurred. He maintained that the Veteran's symptoms began during service and continued thereafter. According to VA treatment records, the Veteran reported back pain, but his X-ray studies were normal. On July 13, 2011, the Veteran presented to the Alvin C. York VA medical center for establishment of service. At that time his past medical history did not include back pain, but did include gastroesophageal reflux disease, ankle pain, left ear hearing loss, and post-traumatic stress disorder. On July 29, 2011, as part of enrollment in the VA national weight management program for veterans, the Veteran indicated back pain or spinal disc disease. Based on a careful review of the subjective and clinical evidence, the evidence weighs against the claim for service connection for a low back disability. Based on a careful review of all of the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding that service connection for a low back disability is warranted. In Saunders v. Wilkie, 886 Fed. Cir. 1356 (2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the Veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the Veteran's pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the Veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 28. In Wait v. Wilkie, 33 Vet. App. 8 (2020), the Court of Appeals for Veterans Claims (Court) clarified that under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), there must be competent evidence demonstrating that the claimed symptoms result in functional impairment that in fact affects the veteran's earning capacity. In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. In this case, the Board finds that the Veteran has not presented any competent evidence that his low back pain results in functional impairment that in fact affects his earning capacity. The Board acknowledges that the May 2016 VA examiner found that the Veteran had pain upon forward flexion and extension, but that this did not result in functional loss. In fact, the Veteran's forward flexion was at 110 degrees (beyond the normal 90 degrees) and extension was at 30 degrees. While the Veteran had limitation of motion upon right and left lateral flexion and right and left lateral rotation, the examiner found that the abnormal range of motion itself did not contribute to functional loss. While the examiner found that less movement than normal was an additional contributing factor of disability and that the Veteran's back condition impacted his ability to work, it appears that these findings were based solely on the Veteran's report of back, which the examiner had already found did not result in functional loss. Further, in the September 2021 VA examination opinion, the examiner opined that it was less likely than not that the Veteran had had functional impairment of earning capacity of the lower back. As such, Saunders is not applicable in this case. In sum, the Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a low back disability. Here, no underlying disability has been clinically diagnosed during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is certainly competent to report his symptoms of low back pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a low back disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability. Thus, the claim for service connection for a low back disability is denied. (Continued on the next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a low back disability is warranted. Rather, the evidence persuasively weighs against finding in favor of the Veteran's service connection claim for a low back disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.