Citation Nr: 22015452 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-42 684 DATE: March 17, 2022 ORDER Entitlement to service connection for lumbar spine disability is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran's current lumbar spine disability manifested during active service or to a compensable degree within one year of separation from active service or is etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 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 July 1986 to July 1989. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In April and October 2021, the Board remanded the claim for further development, i.e., the Board remanded the claim for an additional VA examination to determine the nature and etiology of the Veteran's lower back disability. The examiner was also asked to address the Veteran's statement regarding the onset of his disability. The Veteran was provided with a VA examination in December 2021. The examiner addressed the Veteran's statements regarding the onset of his lower back disability and also provided etiology opinions for the requested disability. Therefore, the Board finds that VA has substantially complied with the remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); D'Aries v. Peake, 22 Vet. App. 97 (2008); See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for lumbar spine injury 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). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his lumbar spine disability is due to military service. The Veteran has a current diagnosis of muscle strain and lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD). As such, element one under Shedden is met. The Veteran's service treatment records document complaints, treatments, and diagnosis for a lumbar spine disorder. The Board notes that the Veteran's service entrance records are not of record. On July 24, 1987, the Veteran was seen for injuries associated with a possible assault. The examiner noted that the Veteran had reduced active ROM and tenderness at L3-L5 paravertebral. The Veteran was diagnosed with human bite and multiple scratch marks. On July 27, 1987, the Veteran was diagnosed with back muscle strain. During his time in service, the Veteran was seen for, among other things, regurgitation after meals, facial acne, stomach pains and warts, black eye, neck pain, cold symptoms, flu on multiple occasions, finger pain, chest pain caused by gas, and diarrhea. During his May 1989 Report of Medical Examination: ETS exam, the Veteran's spine and other musculoskeletal systems were clinically normal. The Veteran noted that he did not have recurrent back pain. The Board notes that, during service, the Veteran was diagnosed with back muscle strain. As such, element two under Shedden is met. In October 1993, the Veteran saw an orthopedic surgeon regarding his back pain. The examiner diagnosed the Veteran with arthritis, low back, with spondylolysis L5. The examiner stated that the Veteran's back pain began from a 1992 injury. The examiner noted that the only previous back injury the Veteran mentioned was when he was a freshman in high school. He recovered within a few weeks and had no other discomfort in his back until the November 1992 personal injury. The examiner concluded that the Veteran's back condition is the direct result of the November 1992 personal injury. In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not "noted" at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). As noted above, the Veteran's enlistment examination is not of record, and the record suggests that a back condition may have existed prior to service. However, no medical records have been submitted to confirm a pre-existing back condition. Therefore, the presumption of soundness is applied to the Veteran, and the claim is one for service connection rather than aggravation. In May 1994, the Veteran saw an orthopedic surgeon for a final orthopedic evaluation and discharge. The examiner stated that the Veteran had not worked since October 24, 1993, when his MRI showed a herniated disc in the low back. The examiner stated that the back pain was due to a November 2, 1992 injury that occurred when the Veteran was walking on the street and a tree fell directly on his head and neck. At the time of the impact, the Veteran, who was riding his motorcycle, became air bound about five to ten feet, landing first on the top of his head, and then flipped and rolled over on his back. He had soreness in his back and neck, dizziness, and poor recollection of events. A November 1993 MRI showed mild degenerative disc. In March 2006, the Veteran saw his private physician regarding, among other things, chronic back pain. The Veteran stated that in December 2003, he suffered a work-related injury which caused chronic back pain. The Veteran was told that he had a bulging disc and radiculopathy as well as herniated disc. In November 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disability. The Veteran stated in 1988, while overseas during war games, he injured his back while running on a cable. Specifically, his sergeant reportedly pulled on the cable while he was running on it which caused him to fall back on his M16. The Veteran stated that on the first day of bed rest, he was made to report and come down from the third floor to the ground floor and this aggravated his back pain. He further stated that throughout service, marching and wearing boots aggravated his back pain and this persisted to the present. The examiner diagnosed the Veteran with degenerative arthritis of the spine and radiculopathy, bilateral lower extremities. The examiner opined that the claimed condition is less likely than not incurred in or caused by the low back pain during service. The examiner stated that the opinion is based on thorough C-file review and review of all available medical records and current peer reviewed medical literature. The examiner acknowledged the Veteran's July 1987 in-service sore back complaint but stated that no further evidence was noted in service. The Veteran's separation exam is silent with regards to a back condition. The examiner stated that there are multiple medical records indicating that the back pain began post service. Several post service accidents caused and aggravated the current condition. The examiner stated that there was insufficient evidence to establish a nexus between the Veteran's current back condition and military service. Therefore, the Veteran's current diagnosis is less likely than not incurred in or caused by the low back pain during service. In his April 2017 Notice of Disagreement (NOD), the Veteran stated that he was first treated for his lower back while in service. However, because of the heavy workload within his unit, he was unable to establish enough medical support for his back while in service. The Veteran stated if the soldier went to medical for any reason, his unit constantly threatened the soldier with denial of promotions. He stated that he was lucky to have been treated for his back, and this was due to the excruciating pain he experienced. However, he had to deal with the malingering pain during the rest of his service. He stated that he still suffers from constant lower back pain. During his February 2021 Board hearing, the Veteran stated, during a war game exercise, he was running a cable over a hill, when the section chief stepped on the cable "from far away" and caused the Veteran in full combat gear to fall directly on his gear and his M16. He fell on his back and experienced an extreme electrical shock that went through his leg. After leaving Germany, he continuously complained about his back, but he was not sent to see the doctor. The Veteran stated, since the fall, he has always had issues with the sciatica nerve in his lower left side of his back. The Veteran also reported injuring his back when he was attacked off base. During the fight, his back went out, and he experienced the electrical shock down his leg and lower back. After the fight was over, he collapsed. He stated that he was unable to walk. He further stated that no matter what he did while in the military, he was in constant pain. The Veteran stated that the back issues that developed during service continued to affect him after service. He stated that he went to see a doctor within a year after leaving service. In April 2021, the Board noted that in 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his back conditions. The examiner opined that the Veteran's current conditions are less likely than not incurred in or caused by service. The Board noted that, during the examination, the Veteran competently reported injuring his low back while he was participating in war games overseas; however, his statement was not considered in the opinion. Additionally, during his Board hearing, he testified that he was attacked and assaulted off base. He reported that his back went out during the fight, and he experienced an electrical shock down his leg and lower back. After returning to base, he received muscle relaxers. The Board noted that the Veteran's STR documents this assault and his treatment following the assault. The Board concluded that the 2016 VA medical opinion did not adequately addressed the Veteran's competent and credible accounts of his in-service back injuries. As such, the Board remanded the claim for a new examination. In August 2021, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disability. The examiner confirmed the Veteran's DJD and DDD, with bilateral lower extremity radiculopathies diagnoses. The examiner stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the first evidence of a post-service back condition was in 1992, and this was due to a motor vehicle accident (MVA). The examiner stated that there is no evidence of an in-service chronic back condition. The examiner noted that after being involved in an altercation, the Veteran suffered an upper spinal muscle spasm. He served an additional two years without evidence of a chronic back condition, and his separation exam was negative for back complaints or findings at that exam. The examiner stated that the Veteran-answered report of medical history (RMH) was specifically negative for chronic or recurrent low back pain. The examiner stated that it is highly unlikely a significant back condition would have gone unnoted or unreported. Additionally, a Scientific Thermography Center Inc. letter dated May 17, 1994, documents a follow-up visit wherein the examiner described a musculoskeletal injury related to a November 2, 1992, moto versus tree accident. The VA examiner stated that a thermography is definitely not mainline diagnostic intervention, and the letter notes that it is "patented." This does not imply acceptance in the general medical community. Nonetheless, this letter documents the injury as occurring in 1992. The VA examiner stated that this is clearly the nexus for the Veteran's chronic back conditions. The examiner further stated that the findings in 1993 were not unusual, as approximately 30 percent of men will have evidence of degenerative spinal disease between the ages of 40 and 50 (Wheeless' textbook of orthopedics), and there was no evidence of a traumatic injury. A December 7, 1993, letter from that same physician who documented the thermography results, documents a November 29, 1993, MRI. This letter again defines that the onset occurred due to a November 2, 1992, injury and was done for the purposes of litigation. The VA examiner stated that the MRI has diagnostic value, but the demographic evaluation would not be considered standardized diagnostic evaluation. Therefore, there is clear, documented contradictory evidence belying the Veteran's claim of onset during service, presence at separation and continuity since service. There is clear and unequivocal evidence that the Veteran's conditions had their nexus in 1992, due to a moto versus tree MVA. The Veterans' claims are not supported by clear documentation to the contrary and by the natural pathophysiology of degenerative spine disease. Though outside the scope of this evaluation, it is less likely than not that the Veteran's claim of back injury at the time of the MVA would not be supported. Therefore, it is less likely than not that the Veteran's back conditions had their nexus in service or due to events in service. It is almost unequivocal that the first evidence of a post service back condition arose in 1992 due to an accident. (Confidence level unequivocal). In October 2021, the Board noted that in providing the opinion, the August 2021 VA examiner did not address the statements the Veteran made in the November 2016 VA examination, April 2017 NOD, or the statements he made during his testimony. As the April 2021 Board remand directives were not substantially complied with, the Board found the August 2021 opinion inadequate. The Board remanded the claim for a new examination. In December 2021, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disability. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's in-service lower back pain was acute only, and there was no evidence of chronicity of care for a back condition since the July 1987 injury, i.e., after the altercation. The Veteran's May 1987 separation examination was negative for recurrent back pain. As such, a nexus has not been established. Per the February 2021 hearing, the Veteran stated that he injured his lower back when he was walking with a cable and another person stepped on it causing the Veteran to fall with his full gear on, and he landed on his back. The examiner stated that there is no record of this injury in the Veteran's service record. Additionally, during the hearing, the Veteran stated that no one sought care for issues due to retaliation, which the VA examiner stated may be true to some extent; however, in the three years the Veteran was on active duty, he was seen numerous times for other complaints to include: nausea and vomiting, back pain after altercation, abdominal pain, cold symptoms, etc. Thus, based on his STRs, if the back issue was chronic during service, it should have been noted on his separation examination. The examiner stated that it is not likely that the Veteran's claimed fall, which was acute, and not followed up with, caused the Veteran continued pain, and his STRs are silent for recurrent pain. Although the Veteran's April 10, 2017, and February 12, 2021, statements are creditable, per medical literature, they are not diagnostic of a chronic condition. In addition, it is clear that the current and available record and the August 9, 2021, very thorough medical opinion, clearly present evidence of back pain starting after a MVA and is supported by the medical provider's statements. The December 2021 VA examiner quoting the August 2021 examiner noted, "A Scientific Thermography Center Inc. letter dated May 17, 1994, documents follow-up of the Veteran wherein a musculoskeletal injury related to a November 2, 1992, was described, moto versus tree accident. A caveat regarding thermography; it is definitely not mainline diagnostic intervention and the letter notes that it is "patented". This does not imply acceptance in the general medical community. Nonetheless, this letter documents the injury as occurring in 1992. This is clearly the nexus for the Veteran's chronic back conditions." A December 7, 1993, letter from that same physician documents a November 29, 1993, MRI. The December examiner again quoted the August examiner stating, "This letter again defines that the onset occurred due to a November 2, 1992, injury and was done for the purposes of litigation. The MRI has diagnostic value, but the demographic evaluation would not be considered standardized diagnostic evaluation. Therefore, there is clear, documented contradictory evidence belying the Veteran's claim of onset during service, presence at separation, and continuity since service. There is clear and unequivocal evidence that the Veteran's conditions had their nexus in 1992, due to a moto versus tree MVA." The December VA examiner stated that the objective evidence in the STRs and current and available records does not support a chronic condition from active duty, only an acute injury, that by evidence, the Veteran did not have further follow up. The examiner stated, per MRI and physician letter, there is clear evidence to support that the Veteran's back pain started in 1992 after MVA. Lastly, although the Veteran's statement is creditable, it is not diagnostic, and his story does not support a chronic condition. Therefore, a nexus is not established. Based on the evidence of record, the Board finds that service connection is not warranted for the Veteran's lumbar spine disability on a direct and/or presumptive basis. The Board notes that the Veteran's STRs document complaints, treatments, and diagnosis for back muscle strain. However, the Veteran's separation exam was clinically normal. Additionally, on his separation report of medical history, the Veteran himself noted that he did not have recurrent back pain. The Board also notes that the December 2021 examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's in-service back pain was acute only, there was no evidence of chronicity of care for a back condition, and the May 1987 separation examination was negative for recurrent back pain. The examiner acknowledged the Veteran's statements regarding the cable causing the Veteran to fall and injuring his back. The examiner stated that there is no record of this injury in the Veteran's service record. Additionally, the Veteran stated that no one sought care for issues due to retaliation, which the VA examiner stated may be true to some extent. However, in the three years the Veteran was on active duty, he was seen numerous times for other complaints to include nausea and vomiting, back pain after altercation, abdominal pain, cold symptoms, etc. Thus, based on his STRs, if the back issue was chronic during service, it should have been noted on his separation examination. The examiner stated that it is not likely that the Veteran's claimed fall, that was acute with no noted follow up, caused the Veteran continued pain as his STRs were silent for recurrent pain. Although the Veteran's April 10, 2017, and February 12, 2021, statements are creditable, per medical literature, they are not diagnostic of a chronic condition. The examiner also stated that it is clear that the current and available record and the August 9, 2021, very thorough medical opinion, clearly present evidence of back pain starting after a MVA and is supported by the medical provider's statements. Regarding the Scientific Thermography Center Inc. letter dated May 17, 1994, the December examiner quoting the August examiner noted that it is definitely not mainline diagnostic intervention, and the letter notes that it is "patented" and does not imply acceptance in the general medical community; nonetheless, the letter documents the injury as occurring in 1992 and is clearly the nexus for the Veteran's chronic back conditions. Additionally, a December 7, 1993, letter from that thermography physician documented a November 29, 1993, MRI which defined that the onset occurred due to a November 2, 1992, injury and was done for the purposes of litigation. The December examiner, still quoting the August VA examiner, noted that the MRI has diagnostic value, but the demographic evaluation would not be considered a standardized diagnostic evaluation. Therefore, there is clear, documented contradictory evidence belying the Veteran's claim of onset during service, presence at separation, and continuity since service. The August 2021 examiner also stated that there is clear and unequivocal evidence that the Veteran's conditions had their nexus in 1992, due to a moto versus tree MVA. The October 2021 examiner concluded that the objective evidence in the STRs and current and available records does not support a chronic condition from active duty, only an acute injury, that by evidence, the Veteran did not have further follow up. The examiner stated, per MRI and physician letter, there is clear evidence to support that the Veteran's back pain started in 1992 after MVA. The examiner reiterated, although the Veteran's statement is creditable, it is not diagnostic, and his story does not support a chronic condition. The examiner did not establish a nexus. The Board also notes that the first medical evidence of lumbar spine disability was in or about 1992 or 1993, i.e., over three or four years after his discharge from service. The fact that there were no records of any complaints or treatment involving the Veteran's lumbar spine disability for many years weighs against the claim. The Board also finds that service connection for lumbar spine degenerative arthritis on a presumptive basis is not warranted as the record does not show evidence of degenerative arthritis within one year of separation from active duty. The first competent evidence suggestive of degenerative changes was in 1993, i.e., four years after his discharge from service. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. As such, element two under Shedden is not met. The Board acknowledges the Veteran and his representative's statements regarding the etiology of the Veteran's lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). However, the Board finds that the Veteran's STRs are more reliable evidence and have more probative value than the Veteran's more recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board also acknowledges the Veteran's statement regarding retaliation for seeking care for issues due to retaliation. As noted by the December 2021 VA examiner, the Veteran's STRs are replete with other medical documentation, to include treatment for, among other things, facial acne, stomach and finger pains, warts, black eye, cold and flu symptoms, and chest pain caused by gas, and it is reasonable to find that recurrent lumbar spine pain would have been recorded. In the absence of a nexus, the claim for service connection for lumbar spine disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.