INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served from December 1981 to January 1982, appeals the denial of service connection for a low back disability. The veteran contended that the disability was caused by an in-service slip and fall. The evidence presented included various medical records and the veteran's own statements detailing his low back pain. Pre-service, the veteran denied back trouble on an enlistment examination, though a later report mentioned a prior incident involving a swing. During service, a routine examination was normal, and the veteran was medically separated for eye conditions. Post-service, the veteran sought treatment for chronic low back pain, attributing it to various incidents including a fall from a height and being hit by a swing, with inconsistent accounts of the origin and timing of the symptoms. Diagnostic imaging showed mild degenerative changes. The Board found that the veteran's current low back disability was not incurred in or caused by service. The VA examiner concluded it was less likely than not related to service, noting the lack of in-service complaints or treatment and the inconsistent statements from the veteran regarding the origin of his back problems. The Board found the veteran's current contentions regarding an in-service fall to be of no probative weight due to inconsistencies and lack of corroboration. The evidence persuasively weighed against service connection, and therefore, service connection for the low back disability was denied.

Rationale

No medical opinion found linking current disability to service; Veteran's statements regarding in-service injury were inconsistent; Evidence persuasively weighs against service connection

Full Decision Text

Citation Nr: 23019120
Decision Date: 03/28/23	Archive Date: 03/28/23

DOCKET NO. 18-05 853
DATE: March 28, 2023

ORDER

Entitlement to service connection for a low back disability, claimed as back pain, is denied.

FINDING OF FACT

The evidence of record persuasively weighs against finding that a low back disability began during active service or was otherwise caused by service.

CONCLUSION OF LAW

The criteria for service connection for a low back disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant had active service from December 1981 to January 1982.

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

The appellant provided testimony at a February 2020 videoconference hearing before the undersigned Acting Veterans Law Judge at the Winston-Salem RO.  A transcript of the hearing is associated with the electronic claims file.

The Board remanded the issue in August 2020 for additional development.  The requested development having been completed, the matter again is before the Board.

1.  Entitlement to service connection for a low back disability

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131.

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  The appellant in this case did not have 90 days of active service and, in any case, the evidence does not demonstrate that arthritis of the lumbosacral spine was manifest to a compensable degree within one year of discharge from service.

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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In the present case, the appellant contends that his current low back disability was caused by an in-service slip and fall.

In a November 1981 screening physical examination, the appellant denied any current or past history of back trouble.  In a subsequent November 1981 Report of Medical History, however, the appellant did describe a history of recurrent back pain.  Specifically, he had one incident of back pain after being hit in the back with a swing.  A contemporaneous Report of Medical Examination included a normal examination of the spine.  A December 1981 entrance physical standards board proceedings diagnosed the appellant with multiple right eye disabilities for which he was found to be medically unfit for enlistment.  In January 1982, the appellant was medically separated from service.  

In August 2002, the appellant sought treatment for low back pain.  He had experienced trauma to the area as the result of a fall from a height.  The condition had existed for an extended duration.  A September 2002 MRI of the lumbosacral spine showed mild degenerative disc disease resulting in mild canal stenosis and multilevel neural foraminal narrowing, as well as facet arthropathy.  In October 2002, the appellant was seen for physical therapy for the back.  The appellant reported chronic low back pain for the last 25 years due to being struck by an infant swing.  In another October 2002 record, the appellant explained that his back problems began, "When I was at age 16 - 17 I was hit in the back with an infant swing made out of iron or steel at [a] recreation center."  

In January 2004, the appellant described chronic back pain.  

In March 
 MRI of the lumbosacral spine showed mild degenerative disc disease resulting in mild canal stenosis and multilevel neural foraminal narrowing, as well as facet arthropathy.  In October 2002, the appellant was seen for physical therapy for the back.  The appellant reported chronic low back pain for the last 25 years due to being struck by an infant swing.  In another October 2002 record, the appellant explained that his back problems began, "When I was at age 16 - 17 I was hit in the back with an infant swing made out of iron or steel at [a] recreation center."  

In January 2004, the appellant described chronic back pain.  

In March 2004, the appellant reported back pain that had been present since age 16 when he was hit with a swing.  The pain was described as a "kink" in the low back.  The back pain was present "all the time."  

During an October 2004 psychological evaluation, the appellant claimed to have a "twisted lower spinal column" that he stated was caused by being "hit with a piece of steel."    

An October 2006 letter from a private treatment provider indicated ongoing treatment for problems that included chronic back pain.  

May 2012 x-rays of the spine showed mild facet sclerosis in the lower lumbar spine.  In September 2012, the appellant reported pain in the lumbar spine region that was aching and constant.  He stated that "when he was 16 years old something hit him in the back and since then he has been h[]aving back pain."  X-rays had shown degenerative changes, but no evidence of fracture.  

In an April 2013 statement, the appellant stated that he had a falling accident during service that was not reported, but caused an injury to his spine.  A private facility had found that the bones in the spine were twisted and the appellant had experienced ongoing back problems.  

In an August 2013 statement, the appellant reiterated that he suffered an in-service injury, but that his sergeant "did not turn the report in and didn't report the accident," although he assured the appellant that he would write a report.  The appellant alleged that he injured his "lower back in February between the 1st and 14th 1982 on my way to the hospital clinic on the post of Fort Jackson Columbia, [South Carolina] to have an eye examination."

A January 2014 x-ray report documented abnormal anterior subluxation of L4 with respect to L3 of uncertain etiology.  There also were mild degenerative disc changes below the level of L3.  

A March 2014 statement from the appellant asserted that in January 1982 he had slipped on some stairs and fallen ono his back.  The appellant initially felt no symptoms following the slip and fall, but the next day and thereafter experienced symptoms.  He had to stay in the barracks for 3 days following the injury.  The sergeant in charge told the appellant that he would write a report about the accident.

In August 2014, the appellant continued to report chronic intractable pain in the tailbone, without any trauma, fall, or injury since his last office visit.  

In June 2017, the appellant had noted abnormal lordosis with expressed tenderness to the palpation of the sacral bone region.

In his January 2018 substantive appeal, the appellant asserted that he fell on ice during boot camp and fractured his tailbone.

During his February 2020 Board hearing, the appellant testified that he slipped on ice going up some steps and fell, injuring his coccyx bone / tailbone and back.  The appellant's representative stated, "It also aggravated some issues that were already documented on his entrance exam by this time.  He continued to have issues over the years.  The incident was not documented even though it was reported.  It was reported to his non-commissioned officer in charge, the drill sergeant, and the assistant drill sergeant, but was not documented, thought it was reported according to [the appellant]."  The appellant denied having any back issues at the time of his entrance into service.  After service, the appellant believed that he started treating for back problems between 1984 and 1987, although he had ongoing symptoms.  As to the documented pre-service injury, the appellant testified, "I was hit by that swing when I was young, about thirteen or fourteen.  But I was hit in my shoulders up there.  That was it.  But there was no injury there."

In March and April 2021, the appellant was hospitalized for and underwent a surgical decompression from L4 to S1 with discectomy from L3 to L4; facetectomy from L4 to L5 and from L5 to
 The appellant denied having any back issues at the time of his entrance into service.  After service, the appellant believed that he started treating for back problems between 1984 and 1987, although he had ongoing symptoms.  As to the documented pre-service injury, the appellant testified, "I was hit by that swing when I was young, about thirteen or fourteen.  But I was hit in my shoulders up there.  That was it.  But there was no injury there."

In March and April 2021, the appellant was hospitalized for and underwent a surgical decompression from L4 to S1 with discectomy from L3 to L4; facetectomy from L4 to L5 and from L5 to S1; foraminotomies at L4, L5, and S1; and left L4 and L5 nerve root exploration.

The appellant was afforded a VA examination in May 2021.  The examiner diagnosed status post lumbar surgery.  The appellant reported onset of back problems in 1982.  Specifically, he described lower back pain following a fall while in service that ultimately resulted in lower lumbar fusion in March 2021.  The appellant experienced ongoing symptoms even after the surgery.  Following examination, the examiner concluded that it was less likely than not that the back disability was incurred in or caused by service.  The rationale noted that the appellant reported back problems on his enlistment examination in November 1981 that was described as back pain following an injury involving a swing.  There were no further complaints of or subsequent treatment for back pain documented during service or the in the subsequent years to suggest or establish a nexus / continuation of his claimed back disability.  While the appellant had a diagnosis of a low back disability, "I cannot favorably give opinion that is a continuation of or was incurred in his time in service."

Thus, the appellant has a current low back disability.  The relevant question, therefore, is whether such disability was incurred in or otherwise caused by service.

As an initial matter, the Board recognizes that there is some question as to whether the appellant had a back disability that preexisted his period of active service.  Given the normal examination prior to entrance into service and the other evidence of record, the Board does not find that the appellant had a back disability that preexisted his active service and, as such, the Board finds no basis to overcome the presumption that the appellant entered service in sound condition.  See 38 U.S.C. § 1111.

The medical evidence of record does not support the appellant's contention that he has a current low back disability that had its onset in service or otherwise was caused by service.  As discussed above, the May 2021 VA examiner specifically concluded that the current low back disability was unrelated to the appellant's active service.  The electronic claims file includes no other medical opinion expressing any relationship between the appellant's current back problems and his active service.

Indeed, the sole evidence in support of the appellant's claim are his lay contentions.  Again, he argues that he injured his back when he slipped on some icy steps and fell to the ground and fractured his coccyx.  The medical evidence does not support such an assertion, as the diagnostic imaging studies have not shown evidence of a past healed fracture.  Moreover, the appellant has provided inconsistent statements regarding the origin of his current back problems.  In August 2002, for example, the appellant attributed his then current back problems to a fall from a height.  Such a contention is inconsistent with his current assertion that his back problems stemmed from an in-service fall with a continuity of symptoms thereafter.  In addition, the appellant from 2002 to 2012 consistently attributed his back problems to the pre-service incident where he was hit in the back by a metal swing.  The Board acknowledges the appellant's assertion during his February 2020 Board hearing that the swing accident involved his upper back, but such a contention is entirely inconsistent with his numerous attributions of low back problems to his pre-service accident.  The Board finds it reasonable to conclude that had he fully recovered from his pre-service back injury and had no ongoing problems until slipping and falling during his short period of active service (as he now claims), the appellant would have reported the alleged in-service injury at some point in the decades following service while he was seeking medical treatment.  Instead, it was not until filing his original claim for VA compensation benefits for the low back in 2013 that the appellant alleged the in-service fall.  For these reasons, the Board finds the appellant's current contentions that his current low back disability is due to an in-service slip and fall to be of no probative weight.  See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the
 injury and had no ongoing problems until slipping and falling during his short period of active service (as he now claims), the appellant would have reported the alleged in-service injury at some point in the decades following service while he was seeking medical treatment.  Instead, it was not until filing his original claim for VA compensation benefits for the low back in 2013 that the appellant alleged the in-service fall.  For these reasons, the Board finds the appellant's current contentions that his current low back disability is due to an in-service slip and fall to be of no probative weight.  See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain).

Accordingly, the Board finds that the evidence of record persuasively weighs against finding that the claimed disability had its onset in service or otherwise was caused by service, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

T. SHERRARD

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. J. Houbeck, 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.