Citation Nr: 18160683
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 15-45 447
DATE:December 28, 2018
ORDER
Service connection for a low back condition, diagnosed as degenerative disc disease (DDD) and degenerative joint disease (DJD) of the thoracolumbar spine with compression L1 and retrolisthesis L2 and L3, is denied.
FINDING OF FACT
The preponderance of the evidence is against finding that the Veteran has a low back condition due to a disease or injury in service.
CONCLUSION OF LAW
The criteria for service connection for a low back condition, diagnosed as degenerative disc disease (DDD) and degenerative joint disease (DJD) of the thoracolumbar spine with compression L1 and retrolisthesis L2 and L3, are not met.  38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from September 1965 to June 1968. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 decision by a Department of Veterans Affairs (VA) Regional Office (RO).
1. Service connection for low back condition 
The Veteran asserts that he sustained a back injury after loading duffel bags into a military vehicle during basic training in 1965. He believes that this injury is the cause of his current disability of degenerative joint disease of his back.
The question for the Board is whether the Veteran’s current disability began during service or is at least as likely as not related to the in-service injury.
The Board concludes that, while the Veteran has a current diagnosis of DDD and DJD of the thoracolumbar spine with compression L1 and retrolisthesis L2 and L3, and an in-service injury occurred, the preponderance of the evidence is against finding that the current condition began during active service, or is related to the in-service injury.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Service treatment records (STRs) contain the Veteran’s Report of Medical History (RMH) made at enlistment in September 1965. The RMH include a physician’s note of a pre-service operation to remove a pilonidal cyst at the base of spine in December 1964; the patient had a complete recovery with no sequalae or recurrence. The concurrent Report of Medical Examination showed normal spine.
During service, the only report of back pain is noted in an STR dated November 1966. This references paraspinal discomfort for three days after driving 1300 miles, but excellent range of motion and no radiation of pain. The clinician noted, “He has had this problem before” and diagnosed muscular strain. However, there are no other instances of back pain reported in the STRs. During a periodical physical exam in May 1967, the category of “spine, other musculoskeletal” was marked normal. The corresponding RMH asks, “Have you had or have you now…recurrent back pain.” For this item, the Veteran marked “NO.” A statement signed by the Veteran in May 1968 declared, “There has been no change in my physical condition since my last final-type physical examination…” and lists no caveats or exceptions to that statement. 
In a June 2015 submission, the Veteran identified three private doctors who treated him for back pain in the past who have all been deceased for several years. He attempted to retrieve their private medical records but was unable to obtain records from their estates. In his substantive appeal, the Veteran elaborated that he saw doctors about his back injury “within the first year or two after” discharge and “I have received massage therapy most of my adult lift to lessen the ongoing pain from the military injury.” The Veteran did not provide any releases to allow VA to attempt to obtain these records and, given the fact that he was unable to obtain them and the providers are deceased, the Board finds that further attempts would be futile and the duty to assist has been satisfied in this regard.
The Veteran’s first clinical evaluation by VA was in October 2015. The primary care provider noted a subjective history of several conditions, but the Veteran reported nothing as to his back. During a complete workup, the Veteran “denie[d] any problems with joint pain, soreness, stiffness or swelling. Muscle: No muscle pain, cramps.” Objective examination of the back/spine showed: “Curvature normal.  No pain on palpation or percussion.” The assessment was a “normal exam for this age.”
A VA examination of the back dated in August 2015 lists the diagnosis of DDD and DJD thoracolumbar spine with compression fracture L1 and retrolisthesis L2 on L3. The examiner observed mild tenderness with palpation of lumbar bilateral paraspinal muscles. However, the Veteran did not report a history of ongoing thoracolumbar spine issues. The August 2015 examiner was asked to opine on a nexus between the duffel bag loading injury and current disability, but merely stated that there was no documentation of an injury from loading duffel bags. The August 2015 examiner opined that the Veteran’s degenerative disc disease is less likely than not related to an in-service injury, event, or disease during service. The rationale was that the initial injury of muscle strain after driving is less likely than not to result in significant DDD of the spine. He further explained that for the injury to be linked to the current disability, “one would likely see a chronic back pattern with this and that documentation was not found.”
Even though there was no documentation of the duffel bag injury, the Veteran is competent to report that injury and his September 2015 notice of disagreement credibly explained why he consulted with a medic but did not officially report the injury. The Board accepts that this injury happened in service.
Because the August 2015 examiner did not provide an opinion regarding the duffel bag injury, the question was presented to a different medical examiner to reconcile the August 2015 examiner’s opinion and provide an opinion of whether an injury from loading duffle bags would change the analysis and result. This new examiner of November 2015 found that the evidence supports the previous medical opinion of August 2015 and any new evidence did not alter the opinion of record. The examiner provided a thorough rationale, explaining that the in-service injuries was a strain of muscle etiology, but the current condition is that of bone and disc origin. The examiner pointed to the STRs dated in the years after the reported boot camp injury that affirmatively denied recurrent back pain and the normal May 1967 examination. He stated that “there is no STR evidence” of lumbar DDD with chronic L1 compression being incurred in service. Finally, he summarized that “[a]n acute lumbar strain incurred and resolving approximately 48 years ago would not be the etiology of the Veteran’s current moderate-severe DDD/DJD, lumbar spine.” This opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data supported by the evidence of record.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
The mere absence of medical records for 49 years does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, a long period of 49 years without documented problems related to the issue on appeal weighs against the claim. The Board acknowledges that the Veteran reports seeing now-deceased doctors in the years after service.
However, the Veteran’s recent December 2015 statement reporting a long history of back symptoms is contradicted by past records in which he appears to have reported all his existing medical conditions which have been supported by medical reports without mentioning any problems related to his back. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing FED. R. EVID. 803(7) for the proposition that “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”). The STRs are replete with reports of the Veteran seeking treatment for various ailments, including illnesses, injuries, and the November 1966 low back pain. Based upon the Veteran’s pattern of seeking treatment for injuries in service in 1966 and 1967, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time.  In the May 1967 RMH the Veteran did indicate that he was experiencing or had experienced other symptoms (e.g. hay fever, asthma). Therefore, his failure to report any complaints of chronic back pain in service, and his affirmative denial of recurrent back pain in May 1967, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The Board therefore finds the current report of continuous symptoms of back pain since the boot camp injury not credible.
While the Board accepts the in-service injury to the Veteran’s back, it is necessary to rely on competent evidence to determine whether these injuries are related to his current diagnosis. The Veteran is competent to report symptoms of back pain during and after service. However, he is not competent to provide a nexus opinion in this case. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, separating the potential causes of degenerative disc disease and identifying which cause is responsible for a current disability falls outside the realm of common knowledge of a lay person and is medically complex.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Similarly, the Veteran is not competent to diagnose that he had DDD/DJD of the thoracolumbar spine with compression L1 and retrolisthesis L2 and L3, as these disabilities must be diagnosed by x-ray and other clinical testing. The Veteran has neither contended nor shown that he has the medical expertise or training to render such a diagnosis or opinion. Thus, the only competent nexus evidence is against the Veteran’s claim. 
Finally, certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309.
The Board concludes that, while the Veteran has arthritis (DJD), which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology.  The evidence shows the Veteran was not diagnosed with DJD until August 2015, decades after his separation from service and decades outside of the applicable presumptive period.
Further, while the Veteran asserts that the reported symptoms of back pain after service were manifestations of DJD, he is not competent to determine that these symptoms were manifestations of DJD.  The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing.  Jandreau, 492 F.3d at 1377 n.4. Thus, the also claim fails on a presumptive basis.
As there is no probative evidence of record supporting a connection between service and the Veteran's back disability, the Board finds no basis to grant service connection. Therefore, his claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran served honorably in the United States Army; the Board and his fellow citizens appreciate his dedication and service to this country.
  
Laura E. Collins 
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Ryan Nelson, Law Clerk  

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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