Citation Nr: 24011069 Decision Date: 03/07/24 Archive Date: 03/07/24 DOCKET NO. 17-58 933 DATE: March 7, 2024 ORDER Service connection for a low back disability is denied. FINDINGS OF FACT 1. The evidence shows current diagnosis of degenerative disc disease and arthritis of the lumbar spine (low back disability). 2. Symptoms of a low back disability were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 3. The current low back disability was not incurred in service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from November 1988 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a low back disorder. In May 2019, the Veteran testified at a Travel Board hearing from the RO in Muskogee, Oklahoma, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This case was previously before the Board in August 2019 and November 2020, where the issue on appeal was remanded to request information as to any outstanding Army Hospital medical records in Germany documenting treatment for a reported back injury, and to obtain the records identified. Following unsuccessful attempts by the RO to obtain the outstanding records and notifying the Veteran of the unavailability of such records, the Board denied service connection for a low back disability in a May 2020 Board decision. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2023 Joint Motion for Remand (JMR), the parties agreed that a remand was warranted for the Board to provide adequate reasons as to whether the service treatment records are complete, as a service separation examination did not appear to be included in the record. In April 2023, the Board remanded the matter to obtain any outstanding service treatment and personnel records, including a separation examination report. In September 2023, the RO requested the outstanding service records, to include the separation examination report, to no avail. In December 2023, the RO notified the Veteran of the unavailability of the service separation examination report. The case now returns to the Board for adjudication. In this case, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied by way of the October 2016 notice letter that accompanied the October 2016 Fully Developed Claim. Regarding VA's duty to assist in claims development, the Board notes that the complete service records are not available in this case. Service treatment notes do not include a reported back injury at some point between 1993 to 1995 while stationed in Germany and a service separation examination report is unavailable. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. As will be explained below, the Board finds that the heightened duty to assist has been met. The RO has made reasonable efforts to obtain relevant records and evidence in this case. The information and evidence that have been associated with the record include the available service treatment records, post-service treatment records, the Veteran's written assertions, lay statements, and the representative's brief. Correspondence dated February 2020, March 2020, and December 2020 from the Veteran, his spouse, and fellow servicemembers indicates that the Veteran was stationed at McCully Barracks in Grafenwöhr, Germany, from 1993 to 1995, when he was struck by a military police vehicle while crossing the road. The lay correspondence indicates that the Veteran was subsequently taken to the Army Hospital in either Grafenwöhr or Hohenfels where he was treated for his injuries and thereafter placed on profile in quarters for a few days. In November 2020 and August 2021, the RO requested all Army sick call and hospital records in Grafenwöhr, Germany for the period from January 1993 through December 1995. In March 2022, National Personnel Records Center (NPRC) responded that no records were found. In a March 2022 Report of General Information, the Veteran stated, with regard to the claimed back injury, the incident occurred in a field environment, and he does not believe records exists that would help establish his claim, so he would like to move forward without the records because they do not exist. VA issued a Final Attempt letter dated March 30, 2020, advising that, despite repeated request for outstanding service treatment records, the records do not exist, and any further attempts to obtain the records would be futile. In September 2023, the RO requested any outstanding service records including the service separation examination report. In September 2023, NPRC responded that all available service records were uploaded to the claim file and no additional service records are available. In a December 2023 Final Attempt letter, the RO notified the Veteran that the service separation examination report is unavailable and requested evidence relating to the claimed disability during service, including copies of any service separation examination report in his possession. The Veteran has not indicated that he has any outstanding service records in his possession. The duty to notify the Veteran of the unavailability of records was satisfied by way of the March 2022 and December 2023 letters. 38 C.F.R. § 3.159(e). Further attempts to obtain the records would be futile. Moreover, The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2019, November 2020, and April 2023 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The RO provided a VA back examination and medical opinion in December 2023. The VA examination report includes all relevant findings and medical opinions needed to evaluate the appeal fairly. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection for a Low Back Disability The Veteran contends that service connection for a low back disorder is warranted. Specifically, the Veteran and his friends assert that the Veteran engaged in field trainings in Grafenwöhr, Germany, to prepare for combat training in Hohenfels, Germany, at some point between 1993 and 1995. The Veteran reports that he was struck by a military police vehicle while crossing the road in Germany, and testified that during the motor vehicle accident he was hit in the back and knocked 15 feet across the street. The Veteran and fellow service members reported that the Veteran was subsequently taken to the Army Hospital in either Grafenwöhr or Hohenfels where he was checked for injuries and his blood alcohol levels were checked for intoxication, but no x-rays were done, and he was released and placed on profile in quarters for a few days. The Veteran testified that he continued to have back pain on and off during the last three to four years of service, though he does not recall if he mentioned it during a service separation examination. Additionally, the Veteran testified that he continues to have low back pain with strenuous activities on and off. See May 2019 Board Hearing Transcript; see also February 2020, March 2020, December 2020 correspondence. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The evidence shows a current disability of degenerative disc disease and arthritis of the lumbar spine, specifically, spinal canal stenosis and multilevel facet arthropathy. See May 2019 private treatment record. Stenosis and arthropathy are considered "arthritis" recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for a low back disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After a review of all the evidence of record, lay and medical, the Board finds that the weight of the persuasive evidence is against finding that symptoms of a low back disability were chronic in service, were continuous since service, or manifested to a compensable degree within one year of service. The service personnel records indicate that the Veteran served in Germany from December 1992 to December 1996. Although the Veteran has recently provided lay testimony of low back pain on an off for the last three to four years of service following the claimed low back injury, the available contemporaneous service treatment records show no complaints, symptoms, findings, diagnosis, or treatment for a low back disorder during service. An Individual Medical History report dated January 1997, a month after the Veteran returned stateside from Germany, shows that no current medical conditions or medications were noted. See January 1997 service treatment record. During the pendency of this claim, the Veteran, his spouse, and fellow service members have provided written lay statements indicating that the Veteran sustained a back injury due to being struck by a military police vehicle while crossing the street in Germany. They state that the Veteran was treated at the Army hospital after the accident, and he has had problems with low back pain since the claimed in-service injury. See December 2019 Board Hearing Transcript; see also February 2020, March 2020, December 2020 correspondence. These recent lay statements provided by the Veteran and his relatives during the pendency of the claim are inconsistent with and outweighed by other, more contemporaneous lay and medical evidence, so are not credible. The service personnel records show that the Veteran was stationed in Germany from December 1992 to December 1996. Despite the Veteran's and his friends' initial reports that the Veteran received treatment at the Army hospital in Germany after he was struck by a military police vehicle, attempts to obtain any outstanding service treatment records from the Army clinic or hospital in Grafenwöhr, Germany, have not yielded treatment records. After repeated unsuccessful attempts to obtain any outstanding records of the alleged in-service injury, the Veteran now states that the injury occurred in the field, so records documenting the event do not exist. These statements are inconsistent with the Veteran's own previous statements, made for compensation purposes, that he was taken to the Army hospital where he received treatment after the accident. Regardless of whether treatment for the alleged vehicular accident was documented at the time of injury, which the Veteran contends occurred sometime between 1993 and 1995, the Veteran recently testified to low back pain on and off during the last three to four years of service following the claimed low back injury. However, as mentioned above, contemporaneous service treatment records are silent for the Veteran's complaints, or any symptoms, findings, diagnosis, or treatment for any low back condition during service, including in the years following the 1993 to 1995 date range that the injury occurred according to the Veteran. While the service treatment records may be incomplete in this case, the available service treatment records show treatment for various other conditions during service, including rashes on the neck and leg, warts on the hand, gastrointestinal problems, and cough. Notably, service treatment records also reflect treatment for multiple musculoskeletal injuries, some of which occurred while the Veteran was stationed at McCulley Barracks in Grafenwöhr, Germany, including left ankle sprain, right lower leg pain, possible frostbite injury to the left foot, and right foot pain and secondary toe injury. See, e.g., January 1989, February 1989, May 1989, September 1990, September 1991, May 1992, September 1991, November 1993, January 1995, June 1997, August 1997, December 1997, March 1998 service treatment records. The evidence of treatment for various other musculoskeletal conditions that involved pain and/or discomfort and were documented would suggest that the alleged low back injury or symptoms thereof, which the Veteran alleged occurred, would have been similarly complained of and documented during service irrespective of whether the initial injury and treatment was documented, if in fact such symptoms had recurred or persisted during service, especially the alleged symptom of chronic back pain during the last three to four years of service when there is a three or four year opportunity to mention such during treatment or examinations for any medical issues. However, as the service treatment records may not be complete in this case, the Board has not relied on the absence of evidence documenting a back injury and symptoms during service. The Board has considered other lay and medical evidence of record in weighing the credibility of the Veteran's and others' recent lay reports. A review of the October 2016 Claim indicates that while the Veteran claimed service connection for a low back condition among other conditions, the Veteran made no mention of any in-service injury or event, including being struck in the back during a motor vehicle accident in Germany, in his initial filings for compensation benefits. Post-service evidence, including medical records, are also silent for any history of back injury, symptoms, complaints, findings, diagnosis, or treatment for lower back pain for many years after service separation. Records show that, when the Veteran first presented to the VA Medical Center to establish care in September 2016, one month before he filed a claim for compensation benefits for the low back disability, he denied any prior medical care and only reported problems with anxiety and insomnia during this initial encounter. The first report of an in-service injury to the back was in the March 2017 Notice of Disagreement, after the RO's initial denial of the claim in the February 2016 rating decision. However, despite actively pursuing a service connection claim for a current low back disability, post-service treatment records indicate that the Veteran did not pursue treatment for his low back symptoms despite pursuing treatment for other active medical conditions, and he consistently denied problems with back pain between 2016 and 2018. See September 2016, May 2017, September 2017, September 2018 VA treatment records. The first medical evidence of symptoms of a low back disorder did not arise until February 2019, approximately 21 years after active service. However, when providing a contemporaneous lay history of the back condition for the purpose of treatment, the Veteran reported the low back pain had only been present since the previous Wednesday, well after service separation. The Veteran provided no lay history during this initial encounter for low back pain of a history of injury to the back during service or of chronic, ongoing, or even intermittent symptoms of low back pain since service. This history presented by the Veteran for treatment purposes, which conspicuously makes no mention of any in-service event, back injury, or any back symptoms since service, is highly probative because an accurate history is essential to proper treatment for the symptoms of which the Veteran was complaining. The first lay report of low back symptoms since service during a medical encounter was in May 2019, when the Veteran reported back pain that had been ongoing for several years since getting out of service. Nevertheless, the Veteran did not provide a lay history of low back pain since service until May 2019, which is three years after he filed the October 2016 Claim for compensation benefits for a back disability and is after the February 2017 rating decision that denied the claim. Thereafter, treatment notes show that the Veteran again denied problems with back pain. There are no lay reports, for the purpose of treatment, of current chronic back pain again until 2023. See May 2019, July 2019, July 2020, November 2021, September 2023 VA treatment records. While recent 2019 lay statements of the Veteran and his loved ones, which were provided in support of a claim for compensation benefits, indicate a back injury and onset of chronic low back pain during service that has remained present since service separation, these more recent assertions are inconsistent with and outweighed by the available service treatment record evidence showing no complaints or treatment for a low back condition during service, and post-service lay histories provided by the Veteran during medical encounters for treatment purposes indicating that the Veteran generally denied back complaints up until 2019, as the Veteran would have had an incentive to provide an accurate history of his medical condition for purposes of diagnosis and obtaining effective treatment. This same evidence also shows that symptoms of the low back disability did not manifest within one year of active service, as no signs or symptoms of the low back disability were reported until 2019, and the initial lay history provided indicated that symptoms of low back pain began within a week of the reported symptoms, which was many years after service separation. As to the question of direct service connection, the persuasive weight of the lay and medical evidence also shows that the current low back disability was not otherwise incurred in or etiologically related to service. As discussed above, the available service treatment records are silent as to symptoms, findings, or diagnosis of a low back disorder. Further, the post-service treatment notes generally do not reflect contemporaneous lay histories, for the purpose of treatment, of symptoms of a low back disability during or since service. The Veteran has not presented competent evidence of a nexus between the current low back disability and active service. VA provided a VA medical examination and opinion in December 2023. The VA examiner examined the Veteran and considered the lay history of being struck in the back in a car accident while walking across the street during service in 1993 or 1994. The VA examiner opined that it is less likely than not that the current low back disability is directly related to service. The VA examiner accurately noted that a separation examination that indicates low back pain is not available, and the available service treatment records do not indicate treatment or complaints for a back condition, while the record reflects no mention of a back issue until 2019. The VA examiner explained that degeneration occurs because of age-related wear-and-tear on a spinal disc, and, although degeneration may be accelerated by injury, health and lifestyle factors, and possibly by genetic predisposition to joint pain or musculoskeletal disorders, the disease rarely starts from a major trauma, such as a car accident. While the examiner documented the Veteran's lay report of a back injury and onset of symptoms during service, the VA examiner explained that the evidence does not show chronicity during service or after service. The examiner assessed that a post-service event, illness, or injury is a more likely etiology. See December 2023 VA Examination Report. The December 2023 VA opinion assumes accurate facts consistent with the Boards findings in this case. The evidence as a whole indicates no chronic symptoms of a back disability during service; no continuous symptoms of a back disability for many years after service; contemporaneous lay report of a post-service onset of back symptoms when seeking initial post-service treatment for back disability; and no report of chronic low back symptoms during or since service until many years after service following the denial of the claim for compensation benefits, and thereafter, subsequent lay reports denying back pain. Based on the evidence of record, the persuasive weight of the competent and credible evidence demonstrates no relationship between the current low back disability and active service. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a low back disability is warranted. Rather, the evidence persuasively weighs against service connection for a low back disability. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, S. 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.