Citation Nr: 22019403 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-56 689 DATE: April 1, 2022 ORDER Entitlement to service connection for a lower back disability is DENIED. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's currently diagnosed lumbar spine disorder(s) either began during, or was otherwise caused by, his military service. CONCLUSION OF LAW The criteria for service connection for a lower back disability have not been met. 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 FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 1991 to June 1991, and from February 2003 to June 2004. The Board notes that the certificate of release from active duty (DD 214) indicates that the Veteran served approximately 3 months in the Republic of Germany as a combat engineer. In May 2019, the Board addressed the Veteran's claims for service connection for acquired psychiatric and lower back disabilities. At that time, the Board remanded the claims to the agency of original jurisdiction (AOJ) in order to obtain VA examination reports that addressed the nature and etiology of the claimed spinal and acquired-psychiatric disabilities. Upon further development, the agency of original jurisdiction (AOJ) subsequently granted the Veteran's service connection claim for an acquired psychiatric disability in April 2020. Therefore, as this is a full grant of benefit sought, the issue related to the Veteran's acquired psychiatric disability is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for a lower back disability is denied. In February 2017, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for service connection for a lower back disability. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In April 2017, the Veteran's treatment records form Utah Navaho Health System were associate with the claims file. Therein, it was reported that the Veteran was diagnosed with a back strain and lower back pain. In April 2017, the Veteran's treatment records from University of Utah Health Care were associated with the claims file. Therein, in June 2016, the Veteran relayed that he had endured 6 years of chronic lower back pain. At that time, the provider diagnosed a L4-L5 bulge with nerve impingement and severe stenosis. In May 2017, the Veteran's service treatment records (STRs) were associated with the claims file. The Board has deliberately reviewed the Veteran's STRs, and they do not indicate that the Veteran was seen and/or treated for a back condition during his service in the U.S. Army. In October 2017, the Veteran submitted a VA Form 9. Therein, the Veteran reported that he has had problems with his back from driving a five-ton vehicle in Iraq. In March 2020, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured spinal disorders. The examiner noted current diagnoses for spinal degenerative arthritis and intervertebral disc syndrome. The examiner opined that the Veterans' current spinal diagnoses were at least as likely as not incurred during U.S. Army service. The Board notes that the examiner supplied a post-active duty service / May 2013 medical report of back pain to support this conclusion. Again, the Board finds that the STRs do not indicate the Veteran was seen for a back condition during service in the U.S. Army. In April 2020, an addendum VA opinion was associated with the claim file. After review, the Board notes that the same VA examiner relayed that there was "no objective finding in the STR to support complaints, evaluation and treatment of back condition during service." The examiner opined that it was less likely than not that the claimed lower back condition was incurred in, or caused by, the Veteran's service in the U.S. Army. In September 2020, the Veteran's representative submitted a post-remand brief. Therein, the representative requested that the Board remand the Veteran's claim to obtain an examination report that addressed a possible nexus with U.S. Army service. As identified above, the claims file already contains conflicting VA-generated nexus opinions for the Veteran's claim for service connection for a lower back disability. The Board will address its decision on the conflicting VA opinions below. At this time, the Board finds that Veteran currently maintains diagnoses for lumbar spine disorders. Consequently, the first requisite element for service connection has been substantiated. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. The Board notes that the Veteran has competently reported that he endured back pain following active duty service in the U.S. Army. However, the Veteran's STRs do not reflect that the Veteran was seen and/or treated for a lower back condition during U.S. Army service. Moreover, the medical evidence in the claims file indicates that the Veteran was not seen for, nor he did report, a lumbar spine disorder to the civilian medical community until years after separation from the U.S. Army. The Board notes that the March 2020 VA examination report indicated a positive etiological relationship existed between the Veteran's current lumbar spine diagnoses and military service. However, the examiner erroneously indicated that the Veteran's STRs supported this conclusion. In April 2020, the same examiner opined that the Veteran's STRs did not support an in-service occurrence. The examiner also opined that the current lower back disorders were less likely than not incurred during the Veteran's U.S. Army service. As noted above, the Veteran's STRs do not indicate or report that the Veteran was seen or treated for a lower back disorder during U.S. Army service. Additionally, the Veteran's civilian medical records indicate that the Veteran first reported a lower back disorder years after military service. At this time, the Board affords more probative weight to the addendum VA opinion supplied in April 2020. Therein, the examiner correctly noted that the Veteran's STRs did not indicate an in-service injury of the lumbar spine. The examiner noted that an August 2010 medical examination was negative for spinal conditions. The examiner opined that it was less likely than not that the claimed lower back condition was incurred in, or caused by, the Veteran's service in the U.S. Army. Consequently, absent a competently-identified etiological relationship that is supported by the evidence in the claims file, the third requisite element for direct service connection has not been substantiated. See id. Ultimately, the Board finds that the evidence pervasively stands counter to the Veteran's claim for service connection for a lumbar spine disorder. Since the weight of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a lumbar spine disorder must be denied, because the evidence pervasively weighs against his claim. 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.