Citation Nr: 22014850 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-28 225 DATE: March 15, 2022 ORDER Entitlement to service connection for an upper back disability is denied. Entitlement to service connection for a lower back disability is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding the Veteran's upper back disability was the result of active service or manifested within one year of separation from service. 2. The weight of the evidence is against finding the Veteran's lower back disability was the result of active service or manifested within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for an upper back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. 2. The criteria for service connection for a lower back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to December 1974. This appeal is before the Board of Veterans' Appeals (Board) from an October 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 and September 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection The Veteran seeks entitlement to service connection for upper and lower back disabilities which he alleges are the result of in-service injuries. The service treatment records (STRs) indicate that on his January 1971 entrance examination report of medical history he reported back pain and his entrance medical examination did not indicate he suffered from any abnormalities or defects. In March 1973 reports of medical history and examination did not indicate he experienced any issues related to a back disability. In August 1974 he received treatment for a lumbar muscle spasm described as a sudden onset with no loss of range of motion and was given a weekend of rest. In December 1974 the reports of medical examination and medical history did not indicate he experienced any issues related to a back injury. The post-service medical evidence shows that, in November 1994, VA medical records indicate he was diagnosed with degenerative joint disease of the cervical spine and his thoracic spine was "unremarkable." VA records indicate that in 1995 and 1999 he received treatment for upper back pain. In 2001, VA records indicate he was diagnosed with fibromyalgia. In April 2001, VA records indicate his lower "back is still hurting" and he described the pain as shooting down his back. An August 2001 VA record indicates his back pain continues up into his shoulders and neck and the assessment section states chronic low back pain. A May 2001 private record indicates his upper back pain was attributed to his fibromyalgia. An October 2005 VA record indicates he reported upper and lower back pain which "just started" and a corresponding x-ray revealed, "some deformity of the upper plate of the L4, probably from old physeal disease." A December 2005 VA MRI of the lumbar spine revealed stenosis related to a bulging disc. In June 2006 VA records indicate he has been treated for low back pain since 1998 and "there was basically no precipitating event but does have [history] of pulling a back muscle in 1990" and a football injury in high school. An August 2006 VA record indicates he reported his back pain began in 1998. In March 2015 VA records indicate he underwent a lumbar laminectomy for a bulging disc. Because the Board previously found an October 2016 examination to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. In statements attached to his January 2017 Notice of Disagreement, the Veteran alleged that his upper and lower back problems are due to lifting and moving heavy parts for aircrafts and engines during active service. In statements attached to his May 2017 VA Form-9, he stated he did not report any back pain during service out of fear of punishment and, during service, he fell off of a dock, landed on his back, and had experienced pain since this incident. A December 2018 VA record indicates he had mild degenerative changes in the thoracic spine. Because the Board previously found a December 2019 VA back condition examination to be inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. In November 2021, three VA addendum opinions were added to the claims file. The VA examiner opined that it was less likely than not that the Veteran's upper back disability is the result of active service. The rationale for this opinion was based on a review of multiple medical journals and other medical literature sources. The November 2021 opinion stated in pertinent part: There is no established medical nexus for the upper back disorder due to service... A review of the STRs shows treatment for a lower back muscle spasm on 08/23/1974. There was no record of upper back (thoracic region) involvement. There is no record of any difficulty performing [physical training] or the duties of his [military occupational specialty] due to a chronic upper back condition. The Veteran received an outstanding performance evaluation in Oct 1973 - with no indication that a chronic upper back condition interfered with his performance...The Veteran indicated that he had no recurrent back pain on his separation exam and there is a 21-year gap before the chronic back pain was noted in 1995. The Veteran's back pain in 1999 was related to pleuritic pain and was not diagnosed as musculoskeletal pain...The Veteran also had a post service injury, pulling a back muscle in 1990 lifting bales of wire. The medical exams after service note that the Veteran had a co-morbid condition of obesity which is known to cause back pain as well as contribute to chronic back pain. Given this history, the fact that the Veteran has had chronic upper back pain after service does not establish an etiological basis due to service. There is no established medical nexus. A second opinion also determined the evidence of record indicates his upper back pain previously has been attributed to fibromyalgia and there is "no medical nexus" between fibromyalgia and active service. The November 2021 VA examiner next opined that it is less likely than not that the Veteran's lower back disability is the result of active service. The rationale for this opinion was based on a review of multiple medical journals and other medical literature sources. The opinion also stated in pertinent part: The lower back disorder has been diagnosed as [intervertebral disc syndrome] with sciatica secondary to acquired on congenital lumbar canal stenosis seen at L2/L3, L3/L4 & L4/L5 levels [related to] disc bulge, facet and ligamentum flavum thickening and congenital short pedicles. The lower back condition has no anatomic or pathophysiological relationship to the degenerative disc disease or the cervical spine during service. There is no established medical nexus. Having reviewed the record evidence, the Board is not persuaded that it supports granting the Veteran's claims of service connection for an upper back disability and for a lower back disability. The evidence discussed above demonstrates no diagnosed degenerative disc disease, or any other form of arthritis, within one year of discharge from service; thus, presumptive service connection for his arthritis as a chronic disease under 38 C.F.R. §§ 3.307(a)(3), 3.309(a) is not applicable. Alternatively, presumptive service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b) also has been considered. This provision also is inapplicable because the Veteran was not diagnosed with degenerative disc disease of the cervical spine until 1994 and degenerative disc disease of the lumbar spine until 2001. As to his upper back, the Board recognizes that the Veteran currently is diagnosed with an upper back disability. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. The evidence of record does not support finding that the second element (an in-service event) and the third element (a medical nexus between his active service and his current disability) required for a service connection claim have been met. The Board acknowledges the VA examiner's opinion that the Veteran's initial injury occurred in 1995 resulting in a 21-year temporal gap. The evidence shows that the Veteran's injury occurred in 1994 resulting in a 20-year temporal gap. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds the VA examiner's citation to a 21-year temporal gap in his opinion versus a 20-year temporal gap found in the records to be a typographical error. In any event, the 1 year difference between what the VA examiner stated and what is found in the record evidence would not diminish the ultimate finding of the report, i.e., that the Veteran's current disabilities are not related to active service. As to the merits of the Veteran's claim, the STRs are silent for any upper back injury and the evidence of record is devoid of any documented complaints related to upper back pain until 1994, or approximately 20 years after active service. Id. The Board also notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). More importantly, the November 2021 VA examiner opined that it was less likely than not his upper back pain was the result of the Veteran's active service and cited to multiple medical sources and other likely causes of his current disability to include fibromyalgia. There is no competent contrary opinion of record. As to his lower back, the Board recognizes that the Veteran currently is diagnosed with a lower back disability and suffered an in-service injury. Thus, the first and second elements of service connection are established. See Shedden, 381 F.3d at 1167. The evidence of record does not support finding that the second element (an in-service event) and the third element (a medical nexus between his active service and his current disability) required for a service connection claim have been met. The Board also recognizes that the November 2021 VA examiner stated that the Veteran experienced an in-service cervical spine injury although the record evidence indicates that he suffered a lumbar spine injury. The Board finds that this appears to be a typographical error with no impact on the ultimate conclusion reached by the VA examiner in this opinion, i.e., that the Veteran's lower back disability is not related to active service. The record evidence shows that he was treated once for lower back spasms in August 1974. At his December 1974 separation examination, his lower back was medically sound and he did not report any issues related to his lower back on his medical history. These records indicate his lower back injury was acute and transitory. Moreover, the evidence of record is silent for any documented complaints related to lower back pain until 2001, or 27 years after active service, although this is not necessarily fatal to his claim. See Maxson, 230 F.3d at 1333; see also Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Critically, the November 2021 VA examiner opined that it was less likely than not the Veteran's upper back pain was the result of his in-service injury and cited to multiple medical sources to support the opinion. There is no competent contrary opinion of record. And all of the November 2021 VA examiner's opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board also acknowledges the Veteran's assertion that he did not report his in-service back pain due to the fear of in-service punishment; however, the evidence simply does not support this assertion. He reported lower back pain in August 1974 and the evidence contains multiple other instances throughout his active service where he sought medical attention for various ailments. Additionally, he is unclear as to when his upper and lower back pain began. He reported to the Board that his back pain has existed since service; however, he told two different VA clinicians that it began in 1998, despite treatment in 1994, and also stated that it started just prior to treatment in 2005. Such inconsistencies render his assertions less than probative on the issue of when his back pain began. The only evidence indicating his upper and lower back disabilities are the result of active service are the Veteran's own lay assertions. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his upper and lower back disabilities are the result of active service, he is not competent to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for his upper back disability and for his lower back disability. In summary, the Board finds that service connection for an upper back disability and for a lower back disability have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tyler R. Masters, Law Clerk 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.