Citation Nr: 22040123 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-35 601 DATE: July 13, 2022 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The persuasive weight of the evidence is against finding the Veteran's low back disorder is related to service, to include an in-service back injury. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 5107; 38C.F.R. §§3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from October 1982 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2022 videoconference hearing, and a transcript of this hearing is associated with the claims file. Entitlement to service connection for a low back disorder is denied. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the persuasive weight of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran is competent to report symptoms, injuries, or other events during and since active service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to medically attribute such symptoms to any particular disability because such is a complicated medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). The Veteran contends his current low back disorder is due to service, to include a back injury he suffered during service. The Veteran's service treatment records (STRs) note that he was treated for a low back muscle strain in January 1985, at which time he reported he had back pain for about a month after doing some heavy lifting. The Veteran was put on light duty for seven days. The Board notes that the Veteran has a current low back disability, and thus the first element of service connection is satisfied. The Board further notes the Veteran sustained an in-service low back muscle strain, and thus the second element of service connection is satisfied. Therefore, the remaining issue is whether there is a relationship between the Veteran's in-service low back muscle strain and his current low back disorder. The Veteran was afforded VA examinations in May 2018 and September 2019. In the May 2018 examination, the examiner noted diagnoses of degenerative arthritis of the lumbar spine and spinal stenosis. The Veteran reported first having problems around 2009, stating these problems onset gradually. He also reported experiencing a lower back injury during service, but he could not recall any specific details. The Veteran stated he currently experienced low back pain and numbness in his right toes. The examiner ultimately opined the Veteran's low back disorders were less likely than not related to service because his in-service low back injury was acute in nature and there was no evidence of chronicity of care. In the September 2019 examination, the examiner noted diagnoses of spinal stenosis, degenerative arthritis, and intervertebral disc syndrome. The examiner also noted the Veteran received treatment for a low back injury in January 1985, while he was in service. At that time, the Veteran reported experiencing low back pain for about a month prior, explaining that he had recently done some heavy lifting and his back had been painful since that time. He was diagnosed with a lower lumbar muscle strain and placed on a light duty profile for seven days. The examiner also noted a June 1985 medical evaluation board examination that showed normal muscle strength, reflexes, and gait, as well as no reports of back pain. While the Veteran was placed on a profile after this examination, the examiner noted that the profile pertained to the Veteran's seizure disorder and was not related to a back injury. The examiner found that the next report of low back pain was in 2005, affecting the Veteran's right sciatic nerve, and the Veteran's complaints of low back pain became consistent in 2007, following an emergency room visit for low back pain that began while the Veteran was doing yardwork. After reviewing the Veteran's medical record, the examiner concluded that the Veteran's current low back disorder was less likely than not related to his service. The examiner explained that the January 1985 injury was a mild strain with no evidence of chronicity or any indication the Veteran had a history of back pain during service or any injury to the bones or discs of the lumbar spine or chronic muscular damage. The following June 1985 medical evaluation board examination further indicates the Veteran's muscle strain had resolved, stating the examination found no indication of an ongoing back condition or impairment. The next time the Veteran was treated for back pain was in 2005, at which time he reported experiencing back pain for about a month. His back pain would not be noted as "chronic" until 2007. While the Veteran reported first experiencing back problems in 2009 in his May 2018 examination, the examiner was able to find complaints of back pain back to 2005 at the earliest. Additionally, the examiner noted the Veteran's spouse reported that he told her he had recurring back issues related to his military service early in their relationship, around 1997 or 1998. However, the examiner found that this statement was not enough to support a finding of chronicity, especially when taking into consideration the Veteran's multiple normal examinations following the January 1985 muscle strain and the fact that his 2005 report of back pain specifically stated he had experienced back pain for one month prior. Thus, the examiner concluded the evidence of record did not support chronicity of back symptoms and found no nexus between his in-service low back muscle strain and his current low back disorder. The Veteran submitted a lay statement from his spouse in November 2018. In her statement, she described that the Veteran mentioned he was having "a little back problem" related to an injury he had during service. She stated this would have been while they were still dating, around 1997. She also described how the Veteran's back pain has gotten worse over the years and impacts his ability to do things such as lift objects over 20 pounds. During his February 2022 hearing testimony, the Veteran reported that he hurt his back at basic training in 1983. He explained that they had to jump over walls as a part of PT, and he hurt his back during these exercises. He stated he went to medical for treatment, and his back hurt ever since this incident. The Veteran also stated that he had no other back injuries while in service, but he thinks he may have aggravated his back pain when participating in ruck marches due to his ruck sack weight of about 85 pounds. Although he did not receive any treatment for his back pain, he did take over-the-counter medications to relieve the pain. The Veteran further reported that his back continued to hurt after his separation from service, and he first sought treatment for his back pain around 1990. Additionally, the Veteran reported that his treating physician told him his current back pain could be related to his in-service injury but did not provide specifics. In a March 2007 VA treatment note, the Veteran reported that he injured his low back while pulling a large weed in his yard, which led to him going to the emergency room for treatment. He reported feeling much better at this visit, which was nine days after his back injury. In an October 2018 VA treatment note, the Veteran's treating physician noted the Veteran reported having chronic back pain that he thought was related to an in-service injury and was seeking an opinion to that effect. However, the physician stated the reported back injury occurred in 2004-2005. Thus, the physician could not associate the Veteran's old in-service injury with his current back issues, although they did note there was a possibility this injury may have contributed in part to his current back conditions. After reviewing the evidence, the Board finds that the persuasive weight of the evidence is against finding the Veteran's low back disorder is related to his service. The Board finds the May 2018 examination to be inadequate because although the examiner explained the Veteran's in-service low back injury was acute in nature and there was no evidence of chronicity, they did not address the Veteran's and his spouse's statements about his back pain following service. However, the Board finds the September 2019 examination to be of great probative value. The examiner addressed the Veteran's in-service low back muscle strain, noting that he only reported a one-month history of back pain that appeared to resolve by the time of his June 1985 medical evaluation board examination. Additionally, although his spouse indicated he complained of some back pain around 1997, the Veteran did not seek any treatment for back pain until 2005, and thus the examiner concluded the evidence did not show a chronicity of symptoms. Additionally, although the Veteran mentioned a low back injury in 1983 during his hearing testimony, which he stated was his only in-service injury, it appears that the Veteran is referring to his 1985 back injury, seeing as this is the only notation of a back injury in his STRs. As such, the Board finds the examiner addressed the Veteran's report of an in-service low back injury. Furthermore, although the Veteran reported seeking treatment for low back pain in 1990, the Veteran's VA and private treatment records first show complaints of and treatment for low back pain in 2005, almost 20 years after his separation from service. And, while the October 2018 treating physician stated that the Veteran's in-service back injury could have contributed to his current low back disorder, the physician ultimately stated that they could not associate the reported in-service back injury and the Veteran's current disorder. Thus, the October 2018 treatment note does not provide a positive nexus opinion. Regarding the Veteran's hearing testimony related to his in-service injury, the Board finds the Veteran to be both competent and credible in these matters. See Layno v. Brown, 6 Vet. App at 469. However, he is not considered competent to medically attribute such symptoms to any particular disability because such is a complicated medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. at 435; Buchanan v. Nicholson, 451 F. 3d at 1336-37. The Board also considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Here, however, although the Board acknowledges that the Veteran lifted heavy rucksacks during service and was a heavy equipment operator, the Board does not find that any low back symptomatology following that in-service activity developed into a chronic disability subject to presumptive service connection. The Board notes that although the Veteran claims that his low back disorder continued through separation, the fact remains that the earliest medical evidence in the claims file is from 2005, when the Veteran reported sciatic nerve pain, and a March 2007 treatment note after he injured his back while doing yardwork. The dates of this treatment are years after discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints can be considered as a factor in resolving a claim, just not the only or sole factor). For the reasons above, the Board finds that the necessary element of a causal relationship between the Veteran's current low back disorder and injuries incurred during service have not been met. The claim thus fails on the third element, that of a relationship between the in-service injury and the current disability. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303. Accordingly, service connection for the claimed low back disorder is not warranted on a direct basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the most persuasive evidence weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.