INTERVERTEBRAL DISC SYNDROME

CYNTHIA M. BRUCE · 2025 · Case ID: 25002136

DENIED

Summary

The veteran, who served in the U.S. Marine Corps for active duty for training from August 1972 to October 1972, appeals the denial of service connection for a back disability. The Board previously denied this claim in September 2021, but the Court of Appeals for Veterans Claims (CAVC) remanded the case for further development, including obtaining Social Security Administration (SSA) records, addressing lay statements, and obtaining a VA medical opinion on the nexus to service and potential secondary service connection. The Board remanded again in May 2024, for further development and review of the claim that the back disability was related to active duty or aggravated by another service-connected disability. The Board has now reviewed the available evidence, including VA examinations and SSA records. The veteran has a current diagnosis of degenerative arthritis, intervertebral disc syndrome, radiculopathy, and lumbar pain. However, the Board found no in-service event, injury, or disease related to the back disability. A December 2023 VA examination noted the Veteran's lay statements about falls from flatbed trucks in 1992-1993 and 2009, but concluded the current back disability was less likely than not related to service, citing a lack of prior complaints and the time elapsed. The examiner also found it less likely than not that the back disability was related to the service-connected ankle disability or aggravated by it. The Board found the December 2024 VA medical opinion dispositive, as it was based on a review of the entire record and provided a sufficient rationale. The Board concluded that the evidence does not preponderate in the veteran's favor, and therefore, service connection for the back disability is denied.

Rationale

No in-service event, injury, or disease found; No nexus established between current back disability and active-duty service; VA examiner found current back disability less likely than not related to service or aggravated by service-connected ankle disability

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-26 133

Full Decision Text

Citation Nr: 25002136
Decision Date: 02/12/25 Archive Date: 02/12/25

DOCKET NO. 15-26 133
DATE: February 12, 2025

ORDER

Entitlement to service connection for a back disability, to include as secondary to another service-connected disability, is denied.

FINDING OF FACT

The most probative evidence does not support a finding that the Veteran's current back disability began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303., 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty for training (ACDUTRA) with the United States Marine Corps from August 1972 to October 1972.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2014, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2022, the Board remanded the issues of a left ankle disability and back disability. The RO has granted service connection for the left ankle disability and denied service connection for the claimed back disability; therefore, the only issue remaining is entitlement to service connection for the Veteran's back disability.

Prior to the December 2022, Board remand, the Board denied the Veteran's back disability in a September 2021, decision. Subsequently, the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In August 2022, the Court issued a Joint Motion for Remand (JMR) in which the parties agreed that the Board erred in not obtaining outstanding Social Security Administration (SSA) records and did not properly address the Veteran's lay evidence regarding his back disability. The Board then remanded in December 2022, in accordance with the JMR to obtain a VA examination and medical opinion, obtain SSA records and for the opinion to address any lay statements that were a part of the record. The Board remand also included a request for a secondary service connection opinion regarding the Veteran's back disability.

The Board most recently remanded this matter in May 2024, to allow for further development of the Veteran's claim that his back disability was related to active-duty service or aggravated by another service-connected disability. The Board has reviewed the evidence of record, to include the newly acquired VA examinations and sufficient evidence is of record to decide this matter.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required
1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995).

In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

1. Entitlement to service connection for a back disability, to include as secondary to another service-connected disability, is denied.

The Veteran asserts that his back disability is related to his active-duty service, or to another service-connected disability.

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent VA examinations and during the examinations, the Veteran was diagnosed with degenerative arthritis, intervertebral disc syndrome, radiculopathy, and lumbar pain. See December 2023 VA examination. Therefore, as the Veteran has been diagnosed with a back disability, the Board concedes that there is a current disability for VA purposes.

However, the Board finds that there was not an in-service event, injury or disease and that there is no nexus connected the Veteran's current back disability to his active-duty service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Upon review of the record, which includes a VA examination and Social Security Administration (SSA) records, the Board concludes that the evidence does not support a finding that the Veteran's current back disability is related to his active-duty service.

The Veteran underwent a VA examination in December 2023, wherein the examiner ultimately found that the Veteran's current back disability was not related to his active-duty service. The examiner did not provide a thorough rationale and the Board remanded for consideration of the Veteran's SSA records, lay statements, as well as, providing a rationale for the possibility that the current back disability is related to another service-connected disability.

In December 2024, the Veteran's records were reviewed as part of the remand described above. The examiner conducted a review of the entire record, to include lay statements, and the available SSA records as directed by the Board. The examiner reaffirmed the prior conclusion, noting that the lay statements and SSA records provide further support of the previously provided rationale.

Specifically, the Veteran's SSA records and December 2023 VA examination document lay statements made by the Veteran regarding two falls from flatbed trucks, the first sometime around 1992 or 1993, and the other in 2009.

In 2011, the Veteran was undergoing an examination for SSA purposes and provided statements that his back started bothering him after the fall from the truck in 2009, which was 2 years prior to the examination. During the Veteran's December 2023, VA examination, the Veteran relayed that he started having back pain after a fall off a flatbed truck sometime around 1992 to 1993. The record does not contain records of prior complaints of chronic back pain and when the Veteran's own statements were taken into consideration, the examiner found it less likely than not that the Veteran's current back disability was caused by or related to active-duty service approximately 18 years prior to the first fall from a flatbed and over 30 years prior to his fall from a flatbed truck in 2009.

Regarding the possibility that the Veteran's current back disability may be related to his current service-connected ankle disability, the examiner provided an opinion regarding a possible connected. The examiner found that the Veteran's current back disability was also less likely than not related to another service-connected disability. In providing a medical opinion and rationale, the examiner referred back to the falls reported by the Veteran from flatbed trucks as the most likely causes of his back pain. The examiner concluded that based on the evidence of record, which includes a lack of complaints or treatment prior to his 2011 SSA claim examination, and the specific lay statements made by the Veteran regarding multiple falls from a flatbed truck causing his back pain to begin, it is less likely than not that the Veteran's current service-connected ankle disability would aggravate the Veteran's current back disability beyond its natural progression.

Ultimately, there is no evidence of an in-service event, nor is there evidence of continuity of care shown since service to show that the Veteran sustained an injury chronic or acute of his back that is consistent with his current back disability.

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Here, the December 2024, medical opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's current back disability is not related to active-duty service or another service-connected disability. Furthermore, there is no competing medical opinion of record. The Board thus finds that the December 2024 opinions are dispositive of the issue at hand.

Thus, without more, the second and third elements of service connection have not been met, and an award of service connection is not warranted. See Holton, supra.

In rendering this decision, the Board has reviewed all evidence of record whether or not discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). Based on the discussion above, the Board finds that the evidence is not in approximate balance, and therefore benefit of the doubt is not for application. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021).

Accordingly, entitlement to service connection for a back disability, to include as secondary to another service-connected disability, is denied.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Liggitt,
Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). Based on the discussion above, the Board finds that the evidence is not in approximate balance, and therefore benefit of the doubt is not for application. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021).

Accordingly, entitlement to service connection for a back disability, to include as secondary to another service-connected disability, is denied.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Liggitt, 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.

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