Citation Nr: 22040164 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 17-47 516 DATE: July 13, 2022 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran's back disability did not manifest during active service or within one year of active service, and there is no indication that it is causally related to his active service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1978 to December 1984. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the United States Army Reserve and Massachusetts Army National Guard from December 1984 to March 1994. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2019, the Veteran testified before Veterans Law Judge (VLJ) Kennedy. In October 2019, he testified before VLJ Haddock. Transcripts of both hearings are of record. In July 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board. In May 2022, the Veteran was notified that VLJ Kennedy was no longer employed at the Board and was given the opportunity for another hearing. He responded and indicated that he did not want an additional hearing. As such, single VLJ disposition is appropriate at this time. Service Connection Back Disability The Veteran maintains that his current back disability was incurred during or is etiologically related to an injury he sustained during active service. During the October 2019 Board hearing, he testified that he injured his back during a training exercise and was medevacked to a civilian hospital. He stated that the injury occurred when he was loading ammunition on a rail car and fell. He stated that he was told that he dislocated his L4-L5. During the July 2019 Board hearing, the Veteran stated that he continued to have back pain throughout service and that he also injured his back throwing a football and that it ended his career. He later addressed an injury he had during civilian employment making grinding wheels. He stated that his back locked up and he could not get out of his car. He stated he received workers' compensation but stopped receiving it because they found that the injury happened in service and was preexisting. He also reported that he fell off his truck in 2014 and that his back gave out. He stated that he believed the injuries that occurred during civilian life aggravated his preexisting back injury that occurred during service. A July 1979 service treatment record indicated that the Veteran complained of abdominal pain, backache, and multiple other complaints after moving a wall lockers. It was noted that there was voluntary guarding to palpation but that he had full range of motion. He was instructed not to perform physical training that day. In January 1983, he complained of neck, shoulder, and back pain after an injury playing football. There was diffuse tenderness to the left shoulder and mild erythema. There was also tenderness to the left trapezius muscle. The assessment was acute strain/contusion with spasm. He was referred to physical therapy. A January 1983 physical therapy record indicated that he complained of left anterior shoulder pain and trapezius pain after falling on his shoulder playing football. He received physical therapy for his left shoulder. A December 1984 separation examination indicated that his spine was normal. On the Report of Medical History, he denied having or having had recurrent back pain. Post service, a December 1988 examination for the Army Reserve indicated that the Veteran's spine was normal; however, it was noted that he had chronic low back problems. A March 1991 enlistment examination for the Massachusetts Army National Guard indicated that his spine was normal and on the Report of Medical History, he denied having or having had recurrent back pain. A December 1996 VA treatment record indicated that the Veteran had been involved in a motor vehicle accident in November 1996 and was taking medication for back pain. A May 2005 VA treatment record indicated that the Veteran denied back or joint pain except chronic left wrist discomfort. On examination, his spine was straight, he had full range of motion, and straight leg raise testing was negative bilaterally. During a June 2005 mental health assessment, he reported that he was in a great deal of pain due to a back injury and dental surgery. In August 2005, he reported that he was struck as a pedestrian by a drunk driver and suffered injury, which he believed may have reactivated an injury to his back at L4-L5. During an August 2005 VA examination for posttraumatic stress disorder (PTSD), the Veteran reported that he worked in a factory grinding wheels for a couple of years and that he had a back injury there. He stated that he had not worked since 2002. He further reported that he went to compensated work therapy (CWT) for one day but could not do it because of his back. His medical history noted that he had a back injury from working on the grinding wheels in a factory lifting them in 1986. A September 2005 VA treatment record indicated that the Veteran reported a history of L4, L5 and S-1 fracture in 1986 while lifting a large wheel. He stated that he recently had worsening back pain after heavy lifting. In November 2005, he reported that his back pain started in 1986 when he was injured at work. He reported experiencing a recent flare-up, which he attributed to sitting at school and playing softball. It was noted that an October 2005 MRI of the lumbosacral spine was essential negative. An August 2007 VA treatment record indicated that the Veteran complained of chronic low back pain. On examination, it was noted that he had limited bending at the waist and paravertebral tenderness along the left lumbar spine. He reported that he originally injured his back years ago when he fell off a BMI truck. It was noted that he needed a new MRI and was willing to see the pain clinic for steroid injections. In June 2009, he reported after an absence of two years. It was noted that he continued to have low back pain after falling from a truck and had received workers' compensation. Later that month, in June 2009, it was noted that a February 2009 X-ray showed no evidence of fracture and that an MRI from 2005 showed a right-sided disc bulge at L4-L5 with no clear neural impingement. The assessment was discogenic low back pain. A July 2009 MRI of the lumbar spine showed minimal degenerative changes at L3/L4, L4/L5, and L5-S1. A March 2015 VA treatment record indicated that the Veteran complained of chronic low back pain since falling off a truck. It was noted to be a workers' compensation situation and that an October 2005 MRI was normal. In April 2015, it was noted that he reported that he injured his back taking ammunition off a ship in 1983 and then did a job doing heavy lifting, which aggravated it. It was noted that he was referred to a surgeon who said he was not a surgical candidate. The physician noted that he was not surprised because according to the physical therapist, his MRI showed no evidence of stenosis and only a small disc herniation at L2-3 which was not in the distribution of his pain. Later VA treatment record continue to show treatment for low back pain. During a November 2016 VA examination, the Veteran reported that during service he was uploading ammunition and pulled out his back. The examiner noted that a January 1983 service treatment record indicated that he complained of back pain after an injury playing football. The examiner also noted that a private treatment record in February 2014 indicated that he complained of back pain after slipping on ice, and that another report noted that he had fallen off a truck and received workers' compensation. The diagnoses were degenerative arthritis of the spine and degenerative disc disease. The examiner opined that it was less likely than not that the Veteran's claimed back disability was incurred in or caused by service. As rationale, she noted that the Veteran had a documented workers' compensation injury in 2005 and a fall on ice that was documented in 2014. She stated that his current back disability was more likely related to injuries he sustained at work and less likely related to service. Initially, the Board notes that the record indicates that the Veteran was treated at various private facilities, including the Fallon clinic and St. Vincent hospital. In July 2016, he submitted a VA 21-526EZ, Fully Developed Claim (FDC) and was notified on that form that he needed to submit all relevant private records with his claim under the FDC program. He failed to submit any private treatment records pertaining to his back disability. In July 2020, the Board remanded the claim so that an attempt could be made to assist him in obtaining any outstanding private treatment records and information pertaining to his workers' compensation claims. In October 2020 and November 2020 letters, the AOJ requested that he submit copies of any determinations associated with his workers' compensation claims and authorizations so that VA could assist him in obtaining relevant records from private facilities, including the Fallon clinic. He did not respond to those requests. Therefore, the Board finds that VA has fulfilled its duty to assist the Veteran in this regard. In this case, the Board finds the most probative evidence weighs against the claim. The Veteran's service treatment records do not document any injury to his back caused by loading ammunition. Although he complained of back pain in July 1979 and January 1983, there was no follow-up treatment for any ongoing back problems. Furthermore, at his December 1984 separation examination, his spine was normal, and he denied having or having had recurrent back pain. This suggests that any back pain he experienced during service resolved and was not chronic. In addition, most of his reports prior to filing his claim for service connection indicated that he stated his back pain began in 1986, after he injured his back lifting a grinding wheel at work. This is supported by the December 1988 examination report for the Army Reserve, which noted for the first time that he had chronic low back problems. In addition, he has reported multiple other injuries to his back during civilian life after service, including a fall from a truck, a motor vehicle accident, and slipping on ice. Furthermore, the VA examiner opined that the Veteran's back disability was less likely than not related to service. The examiner considered and addressed the relevant evidence of record, the Veteran's contentions, and provided rationale for her opinion. For this reason, the Board finds the VA examiner's opinion significantly probative. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, the Board does not find his statements credible. In his earlier statements, he indicated that his back pain started after a work injury in 1986. In his later statements, after filing a claim for VA benefits, he indicated that his back pain began during service. Given his conflicting statements, the Board does not find the Veteran credible. Furthermore, the ultimate question of etiology in this case extends beyond an immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. (Continued on the next page) Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for a back disability is not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.