LUMBOSACRAL OR CERVICAL STRAIN

Summary

The veteran, who served in the U.S. Army from January 2012 to March 2013, appeals the denial of service connection for a back disability. The veteran contended that the disability stemmed from prolonged walking, sitting, truck driving with body armor, and guiding a culvert system during service. Service treatment records noted a post-deployment report of back pain in January 2013, with subsequent improvement. Post-service, the veteran was diagnosed with dextroscoliosis in June 2014. Multiple VA examinations were conducted. The February 2016 and April 2018 examiners opined the back disability was less likely than not related to service, citing the single treatment for back pain during service, the silence in records until the 2014 diagnosis, and the intermittent nature of the pain. The December 2019 examiner opined the scoliosis was congenital and less likely than not related to service, noting the curvature was equivocal and inconsistent with earlier x-rays. A December 2021 addendum opinion reiterated that it was less likely than not that a superimposed disease or injury occurred during service, finding the x-ray findings inconsistent and potentially due to positioning. The Board found the VA examinations adequate and the most probative evidence, noting the veteran's congenital scoliosis diagnosis and the lack of evidence for a superimposed injury. The Board also noted the veteran's failure to return VA forms requested during a prior remand. The benefit of the doubt rule was found not applicable as the evidence was not in approximate balance. Service connection for the back disability was denied.

Rationale

VA examinations found the back disability less likely than not related to service.; Examiners noted single treatment for back pain during service and silence in records until 2014 diagnosis.; Congenital scoliosis diagnosis is not service-connected unless aggravated by service.

Full Decision Text

Citation Nr: 22016772
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 17-48 682
DATE: March 23, 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; arthritis of the back did not manifest within one year of separation from active service; and back disability is not attributable to active service.

CONCLUSION OF LAW

The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 2012 to March 2013, with additional reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2021, the Board remanded this case. The case has now been returned to the Board for appellate review.

The Board notes that pursuant to the September 2021 remand, the Veteran was sent a VA Form 21-4142. To date, the Veteran has not returned the completed forms to the VA. Consequently, the Board will issue a decision based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (noting that the duty to assist is not a one-way street).

Service Connection  Back Disability

The Veteran asserts that he has a back disability that was caused by active service. Specifically, he has asserted that his disability started as a result of prolonged walking and sitting, driving a truck while wearing body armor on deployment, and guiding a culvert system into place.

Service treatment records (STRs) show that the Veteran reported back pain in a January 2013 post-deployment physical. The following day, the Veteran reported that his back is tight in the morning upon awakening and resolves as he begins to move. The Veteran was given stretching exercises.

Post-service evidence shows that the Veteran was diagnosed with dextroscoliosis in June 2014 following x-ray examination.

At a February 2016 VA examination, the examiner opined that the Veteran's back disability was less likely as not incurred in or caused by service. As rationale, the examiner noted that the Veteran was only treated once during service for back pain and the record is silent for any other complaints of back pain until his June 2014 diagnosis of dextroscoliosis. The examiner also noted that there is no evidence of any back pathology other than scoliosis and the Veteran's complaints have been sporadic. The examiner concluded that it appears that the Veteran has some lumbar strain due to his back curve that is intermittent and not related to any injury while in the military.

In May 2017 Letter, Dr. M.M. opined that the Veteran's scoliosis is not clinically relevant or the cause of his pain. The Board finds this opinion inadequate for adjudication purposes. In this regard, Dr. M.M. failed to provide a rationale for his opinion.

At an April 2018 VA examination, the examiner confirmed the Veteran's scoliosis diagnosis and rendered her same opinion from the February 2016 VA examination regarding the etiology of the Veteran's back disability.

At a December 2019 VA examination, the examiner opined that the Veteran's scoliosis is congenital. As rationale, the examiner noted that the Veteran's scoliosis curvature is radiographically equivocal for formal definition of actual scoliosis, the curvature's largest Cobb angle is 10 degrees, which is the very lowest end that radiologically defines scoliosis. Given the Veteran's current curvature, primary progression is most likely to be none to negligible, unless a significant subsequent disease, illness or injury affect the spine.

The December 2019 examiner also opined that it is less likely than not that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the Veteran's scoliosis. As rationale, the examiner noted there is no current documented evidence that any event or experience    during the Veteran's military service permanently increased (aggravated) the    scoliosis defect.

Of record is a report from a fellow service-member that shows that the Veteran was treated for lower back pain on four separate occasions during active service.

In the September 2021 Remand, the Board instructed VA to obtain an addendum opinion addressing
 likely to be none to negligible, unless a significant subsequent disease, illness or injury affect the spine.

The December 2019 examiner also opined that it is less likely than not that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the Veteran's scoliosis. As rationale, the examiner noted there is no current documented evidence that any event or experience    during the Veteran's military service permanently increased (aggravated) the    scoliosis defect.

Of record is a report from a fellow service-member that shows that the Veteran was treated for lower back pain on four separate occasions during active service.

In the September 2021 Remand, the Board instructed VA to obtain an addendum opinion addressing the nature and etiology of the Veteran's back disability. The examiner was specifically instructed to consider and address the January 2013 post-deployment report of back pain; and all lay statements and medical literature referenced in the Veteran's January 2021 correspondence.

Review of the record shows that the directed opinion was obtained in December 2021.

In a December 2021 addendum opinion, the examiner opined that it is less likely than not that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the Veteran's scoliosis. As rationale, the examiner noted x-rays taken in 2019 revealed mild levoscoliosis or levocurvature that was inconsistent with earlier x-rays that showed mild scoliosis. The examiner explained that these findings would be consistent with positioning instead of scoliosis.

With regard to the January 2013 post-deployment report of back pain, the medical literature referenced by the Veteran in his January 2021 correspondence, and his contentions regarding the onset of his back disability, the examiner noted that the referenced medical studies are not cited, and he is unable to comment on their specific content. However, the examiner did note a medical study that found that driving as a job was not a risk factor for lower back pain for male soldiers. Additionally, the examiner found no mention of back pain in February 2013 records that were generated two weeks following the January 2013 post-deployment report. The examiner also noted that wearing heavy armor for long periods of time can be associated with increased risk of lower back pain, however, the Veteran's record is consistent with acute episodes of pain and improvement after return from active service.

The Board finds that the February 2016, April 2018, December 2019, and December 2021 VA examination reports are adequate, when read in conjunction with one another, because the examiners reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran and the other lay statements of record, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical evidence of record to the contrary. As such, the VA examination reports are the most probative evidence of record. 

While laypeople are competent to report observable symptoms of a back disability, the Veteran is not competent to provide a current diagnosis of a back disability as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the VA examiners' opinions are more competent and credible than the Veteran's opinion. 

The Board also notes that the Veteran has been diagnosed with a congenital defect of the spine.  Congenital or developmental defects are not diseases or injuries as such within the meaning of applicable law, and are not subject to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85 (March 5, 1985), which in essence interpreted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, the VA General Counsel has further interpreted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen, 4 Vet. App
. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85 (March 5, 1985), which in essence interpreted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, the VA General Counsel has further interpreted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen, 4 Vet. App. at 306-307, citing Hunt, 1 Vet. App. 292; VAOPGCPREC 67-90.

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In this case, the most probative evidence establishes that there is no evidence of a superimposed disease or injury related to service.

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) (2012); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

 

 

J. CONNOLLY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. Umez-Eronini, 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.