Entitlement to service connection for lower back condition is denied.

Citation Nr: A26069926 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 211116-198411 DATE: July 30, 2026 ORDER Entitlement to service connection for lower back condition is denied. FINDING OF FACT The persuasive evidence is against a finding that the Veteran's lower back condition had its onset in service, is causally related to service, or that it manifested to a compensable degree within one year of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for lower back condition have not been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to November 1996. The rating decision on appeal was issued in November 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). This matter was previously before the Board in July 2020 when service connection for a lower back disability was denied. In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for a lower back condition, most recently addressed in the July 2020 Board decision. In November 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim rating decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 29, 2025, before the undersigned Veterans Law Judge and a transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the November 2020 AOJ supplemental claim rating decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the RAMP supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. SERVICE CONNECTION Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability or symptoms arising to a level of functional impairment of earning capacity; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (Fed Cir. 2018). Certain chronic diseases may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. § 1131, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, if the fact of chronicity in service is not adequately supported, presumptive service connected may also be established by evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by a sympathetic reading of the record. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). Entitlement to service connection for lower back condition The Veteran seeks service connection for a lower back disorder which he asserts is due to service. At the May 2025 hearing, the Veteran testified that he fell down a flight of stairs during service which caused his back injury. See May 2025 Hearing Transcript. He stated that he sought private medical treatment after service but that those records are not available. Id. The AOJ made several favorable findings in the November 2020 rating decision on appeal: that the Veteran has a diagnosed disability of invertebral disc syndrome (IVDS) with lumbar spondylosis and left L5-S1 herniated disc status post L5-S1 hemilaminectomy and discectomy; he sought treatment for back strain in service in September 1991, and fell down a ladder in October 1992 sustaining a head injury; that the claimed disability is a chronic disease (arthritis), and that it manifested do a degree of 10 percent or more following service. The Board is bound by favorable findings. 38 C.F.R. § 3.104(c). Turning to the facts, the Veteran was diagnosed with back strain in September 1991 during service after doing push-ups with a duffle bag on his bag. See STR - Medical. The Veteran was referred for a physical therapy (PT) consult, at which time the assessment was that his pain had decreased and range of motion had increased. Id. A plan was developed for the Veteran to do exercises and revisit in one week. The Veteran also sought a light duty sheet because of his back at that time. Id. In late September 1991, the Veteran reported some improvement but that it still hurt to do push-ups and that he was unable to pass a PT test. Id. In October 1992, the Veteran fell down a ladder and sustained a laceration to the back of his head. See STR - Medical. He received staples to the injury during emergency treatment. Id. The Board notes that a portion of the ship's deck log was received in the record, which documents the Veteran's fall incident with no date listed. See Military Personnel Record, received July 2019. A statement submitted from a fellow servicemember states the date was on or about October 10, 1993. See April 2019 Buddy / Lay Statement. The Veteran underwent physical readiness testing in June 1994 and was cleared for participation in a physical conditioning program. See STR - Medical. He remained in the program until April 1996. Id. On each occasion, the Veteran answered "No" regarding any significant change in any medical conditions such as bone or joint disease which limited his participation. At a January 1996 periodic examination, the Veteran denied recurrent back pain. See STR - Medical. At his August 1996 separation examination, he denied recurrent back pain. Id. At a November 1996 examination for retention in the Naval Reserve, the Veteran denied recurrent back pain. Id. Those reports also document the Veteran's prior head injury due to falling down a ladder. Id. After service, the Veteran established VA clinical care in December 2008. See generally, CAPRI records. At the new patient appointment during a review of systems, the Veteran denied joint and back pain. Id. The earliest documented report of the Veteran endorsing back issues was in March 2009. Id. At that time, he stated he "woke up two days ago and the pain was there." Id. March 2009 x-ray imaging showed a normal lumbosacral spine. Id. At clinical appointments thereafter regarding back pain, he did not describe back pain or a back injury as originating from service when seeking treatment. See treatment records in CAPRI records from April 2009; May 2009; July 2009; December 2010. In March 2011, the Veteran presented to the emergency room and the history taken included "has had some back problem in the past" and "no sig[nificant] problems but old back injury." See CAPRI, received May 2019. The next day, the Veteran sought follow-up clinical care and reported a history of a motor vehicle accident in 2004 in which he was in the back seat without a seatbelt, and a low back problem which began in December 2010. See March 2011 CAPRI, received May 2019; see also May 2011 CAPRI. X-ray findings showed only mild disc space narrowing at L4-L5. Id. In August 2012, the Veteran reported that his initial back pain was in December 2004 after the motor vehicle accident. See CAPRI, received May 2019. In September 2017, he stated that his low back pain started in 2009. Id. The Veteran was afforded VA examinations in connection with the claim. In January 2019, the Veteran was diagnosed with IVDS, lumbar spondylosis, left L15-s1 herniated disc, and L5-S1 hemilaminectomy and discectomy. January 2019 C&P Back Conditions DBQ. The examiner noted an in-person interview of the Veteran, as well as review of the Veteran's service treatment records, and medical treatment records. The Veteran reported that he started to have back problems around 1992 or 1993 after a fall from a ladder. He stated that he hit his head several times during the fall and that his back was injured but not treated. He stated that he was seen in the medical clinic following that for his back, but they thought he was just trying to get out of duty. After service, he sought treatment in 2009. The Veteran's occupational history included working as a laborer refinishing railway cars for 5 years and making chairs for 3 years. The VA examiner concluded that the Veteran's back condition is less likely than not due to service. See January 2019 C&P Medical Opinion; February 2019 Email Correspondence. The rationale was that no back concerns were noted at separation; that the Veteran did not seek care for his back after service until 2009; and, the Veteran's occupational duties would place stress on his back. The examiner found that there was no continuity or chronicity of symptoms. At an October 2020 VA examination, a different VA examiner also opined that the Veteran's back condition is less likely than not due to service. See October 2020 C&P Medical Opinion. The examiner noted review of the Veteran's service treatment records, medical treatment records, and medical literature. The rationale was that the Veteran's lumbar spine x-ray in 2009 was normal, and that the first evidence of degenerative disc disease of the lumbar spine was in March 2011. The probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The "factually accurate, fully articulated, sound reasoning for the conclusion" contributes probative value to a medical opinion. Id. On the other hand, a medical opinion based on an inaccurate factual predicate has reduced probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board is the ultimate fact finder on matters which do not require medical training. See generally, Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this matter, the Veteran's lower back condition and in-service incidents are not in dispute. However, at separation, the Veteran specifically denied recurrent back pain. He again denied recurrent back pain at a November 1996 examination for retention in the Naval Reserve. The Board has no reason to doubt the credibility of the Veteran's reports made at separation as they were made contemporaneous in time to service discharge and made in the context of undergoing examination to identify any physical abnormalities. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Notably, the Veteran did report other problems which included falling down a ladder and only referred to getting stitches on his head. The Veteran's post-service statements have been inconsistent. He has testified to persistent and/or recurrent lower back symptoms since service. However, supporting medical records are not available. See May 2025 Hearing Transcript. Further, VA clinical records show that the Veteran did not complain of or seek treatment for low back issues for many years. He established VA clinical care in 2008, and he denied back pain at his new patient appointment. The earliest documented report of the Veteran endorsing back issues post-service was in March 2009, but he did not report such issues to be from any in-service event. Instead, he stated that he "woke up two days ago and the pain was there." March 2009 x-ray imaging showed a normal lumbosacral spine. The Board finds that the Veteran's overall recollections are unreliable, which lowers the probative value of his current recollections of onset and continuity of symptomatology since active service. Additionally, his statements contradict the findings from a competent medical professional at separation who found that his back was clinically normal. See, e.g., State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) ("Generally, after a proper foundation has been laid, a witness may be impeached by evidence of his declarations or statements which are either inconsistent or contradictory to his testimony at trial. The fact that he has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony"). The Board acknowledges the Veteran's various explanations at the hearing. He asserts that, after the ladder injury in 1992, he struggled to pass standardized physical training requirements due to his back and was encouraged by the Navy not to reenlist due to this problem. There is no documentation to support this assertion, and the Board finds no reason why the Veteran would not report back problems during his physical readiness testing from June 1994 to the end of his active service. There is no documentation of his immediate post-service treatment for his back as records are not available. It is argued that records related to treatment for the neck also involved the back but was not documented by the treating clinicians. He appeared to report that he would get informally treated for his back with Motrin to avoid a Captain's Mast for dereliction of duty. He reported that he did in fact report back injuries at separation which was acknowledged by the examiner. Here, the Veteran is relying on multiple sources of events which purportedly happened but were not documented properly, or the records do not exist. Notably, the Veteran himself denied recurrent back pain at separation and did not report a chronic back problem although, in his own handwriting, he wrote down injuries he thought were significant. He denied recurrent back pain at his November 1996 reserve examination, and denied back pain when establishing VA clinical care in 2008. His explanations provided at the hearing for the lack of documentation is not persuasive given the non-reliability of this testimony overall. The most credible lay and medical version is, at separation, the Veteran had a medically normal low back and that he did not have recurrent or persistent back problems as of 2008. The Board further finds that service connection for the herein claim based on continuity of symptomatology since service under 38 C.F.R. § 3.303(b), or as manifesting to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a), is not warranted. The Board finds that the most credible and persuasive evidence is against a finding of recurrent and/or persistent symptoms of lower back issues since service. In addition to unreliable testimony, the Veteran did not seek treatment for his back until 2009, which does not tend to support a continuity finding. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (the lack of contemporaneous medical evidence may be considered as one factor in assessing the credibility of lay statements). See also Maxson v. Gober, 230 F.3d 1330, 1333(Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). March 2009 x-ray imaging showed a normal lumbosacral spine. This evidence demonstrates that as late as 2009, over 10 years post-service, the Veteran's back had not yet manifested to a compensable degree. Based on the above finding, the Board finds the medical opinions of record to be probative, as they considered both the relevant lay and medical evidence, and provided well-reasoned and adequate rationales explaining the basis for the ultimate conclusions. The examiner relied on a factual predicate - no continuity of symptomatology - which the Board finds is factually true. Additionally, the Board gives great probative weight to the VA examiner's opinion that the Veteran's post-service occupational history was a more likely contributing factor to the development of his back problems. The Board also notes that there are no affirmative opinions of record for the herein claim. Ultimately, the Board finds the lay and medical evidence weighs persuasively against the claim. As the evidence is persuasively against finding that the Veteran's claimed condition is due to his active service or that his symptoms manifested in or persisted since service, there is no benefit of the doubt left to resolve in his favor, and the claim for service connection for a lower back condition is denied. 38 U.S.C. § 5107. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Estes 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.