Citation Nr: 1032007 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-18 590 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative disc disease (DDD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The Veteran had active military service from July 1974 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2003 and September 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and Muskogee, Oklahoma, respectively. By way of a May 2009 order, the United States Court of Appeals for Veterans Claims (Court) vacated in part, and remanded the portion of an April 2007 Board decision that had denied the Veteran's claim for service connection for degenerative disc disease. The Court's order followed a joint motion for remand. The Veteran's claim was remanded by the Board in September 2009 for additional development. Pursuant to the remand, a VA examination was conducted in October 2009, and an opinion was obtained. During the course of the examination, the Veteran reported receiving treatment from private physicians during the 1980s and 1990s, and the examiner noted that these records were not in the claims file. As such, in April 2010, the Board again remanded the Veteran's claim in an attempt to obtain the private treatment records. The Veteran did not respond to the RO's April 2010 request to complete and return VA Forms 21-4142, Authorization and Consent to Release Information. Therefore, the RO was unable to obtain any additional records. In any event, the RO completed the additional development to the extent feasible, and the case is once again properly before the Board. FINDING OF FACT The Veteran's currently diagnosed degenerative disc disease (DDD) is not attributable to military service. CONCLUSION OF LAW The Veteran does not have degenerative disc disease (DDD) that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation that stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). The Veteran was apprised of VA's duties to notify and assist in correspondence dated in February 2003, September 2006, and April 2010. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA medical records, and provided examinations in furtherance of his claim. During the course of an October 2009 VA examination, the Veteran reported that he had undergone a computerized tomography (CT) scan of the lumbar spine in 1987, and was told at that time that he had a herniated nucleus pulposus. He also noted that in 1992 or 1993, a physician had recommended surgery for his back; however, the Veteran reported that he had declined. He also reported that in approximately 1984 he was seeing a Dr. Young for acupuncture for his low back pain. The 2009 examiner noted that these records were not in the claims file. The Board remanded the claim to obtain the medical records identified by the Veteran at the October 2009 VA spine examination. The RO sent the Veteran a letter in April 2010 requesting that he fill out the enclosed Authorization and Consent to Release Information forms (VA Forms 21-4142), and asked that he identify the care provider and facility where he received treatment for his low back disability in 1987, and also asked the Veteran to fill out a VA Form 21-4142 pertaining to Dr. Young, whom the Veteran saw in about 1984 for treatment. The Veteran did not return the Authorization and Consent to Release Information forms. In a May 2010 letter, the Veteran's attorney responded to the request for information about the private treatment records that the Veteran had mentioned during his October 2009 VA examination, noting that they did not have copies of the records listed in the April 2010 letter. In her May 2010 letter, the Veteran's attorney requested that if VA was unable to obtain the private records, VA should notify her in accordance with 38 C.F.R. § 3.159(e). In this regard, the Board notes that VA is required to make reasonable efforts to obtain relevant records not in the custody of a federal department or agency, to include records from private medical care providers. However, a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agencies, and, if requested, must provide enough information to identify and locate any existing records, including the person, agency or custodian holding the records, the approximate time frame covered by the records, and if necessary, the claimant must authorize the release of the existing records. See 38 C.F.R. § 3.159(c). As noted above, in April 2010 the Board remanded the Veteran's claim specifically to locate private treatment records that the Veteran mentioned during his October 2009 VA examination. However, the Veteran failed to respond to the RO's request to submit an Authorization and Consent to Release Information form. In this case, despite VA's efforts, the Veteran failed to provide enough information to identify and locate the records. Because the Veteran did not provide information regarding the names of the physicians, and their addresses, there was nothing more that VA could do to locate the private treatment records. As such, the Board finds that VA did all it could to locate records relevant to the Veteran's claim, and has fulfilled the duty to assist. Although the Veteran's attorney requested that she be notified pursuant to 38 C.F.R. § 3.159(e) if VA was unable to obtain the records mentioned in the April 2010 letter, it is clear to the Board, and common sense dictates, that the April 2010 letter was sent to the Veteran precisely because VA was unable to obtain the records without further information and authorization to release this information from the Veteran. In fact, 38 C.F.R. § 3.159(e) notes that if VA becomes aware of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release, and that if the Veteran does not provide a release, VA will request that the claimant obtain the records, and provide them to VA. This is exactly the course of action taken by VA, as the April 2010 letter expressly requests that the Veteran send VA the records of the treatment he mentioned during his October 2009 VA examination, or, if he wanted VA to obtain the records for him, he needed to complete and return the Authorization and Consent to Release Information forms. It is clear from the letter that VA did not have enough information from the Veteran to locate and obtain the records; nor did VA have the authorization to obtain the records even if VA had enough information to locate the medical records. In summary, the Board finds that VA did all it could to assist the Veteran with obtaining additional medical records pertinent to his claim. Finally, the Board notes that a VA examination with respect to the issue on appeal was obtained in October 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as the opinion was predicated on consideration of the STRs and VA medical records in the Veteran's claims file, and considered all of the pertinent evidence of record, including the first post-service documented evidence of a back disability, in addition to the Veteran's lay statements regarding continuity of symptomatology since service. Although the Veteran's attorney argued that the October 2009 VA examiner's opinion is too speculative to be relied upon to support or negate the Veteran's claim, the Board disagrees. The 2009 examiner conducted a thorough review of the claims file, and provided a detailed rationale for her opinion that the Veteran's back disability was not attributable to military service. The record supports her opinion, and it remains uncontradicted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, no duty to assist was unmet. II. Law and Analysis The Veteran has stated that in the spring of 1977, while on active duty, he was attached to a fire and rescue unit. He noted that his job was to watch helicopters refueling and to provide emergency assistance if needed. The Veteran contends that, on one occasion, while watching a helicopter refueling, the helicopter dropped out of sight, so his unit went to locate the helicopter in an emergency truck. The Veteran stated that his unit could not locate the helicopter, and that while driving back on the beach, he was in the back of the truck when the truck hit a hole, resulting in him being catapulted out of the back of the truck. He landed in a sitting position, facing the opposite direction. The Veteran noted that when he turned around, the truck was 50 feet behind him. He stated that he believed it was this in-service incident that caused his current disc problems, even though he noted that his disc problem did not surface until 10 years later. See February 1993 statement in support of claim. During a May 2003 VA examination, the Veteran noted that in 1978 while on active duty working as part of a fire and rescue team, he fell off the back of a moving vehicle. He noted that since that time, he has experienced chronic back pain. See May 2003 VA examination. The Veteran's service treatment records (STRs) contain a January 1977 entry noting that the Veteran presented after having been treated for viral hepatitis. He felt that he was experiencing a relapse of hepatitis and specifically noted that he had heart burn and minor chest and back pain. On examination, the examiner noted no tenderness in the low back. A March 1977 entry in the STRs shows that the Veteran fell off a truck, and complained of chest pain. No back pain was reported. The Veteran's July 1978 discharge examination revealed a normal clinical evaluation of the Veteran's spine. The Veteran is currently diagnosed with diffuse degenerative joint disease throughout the lumbar spine, spinal stenosis at L3- L4, and broad based annular disc bulge at L5-S1. See November 2006 CT Scan. The record also contains an x-ray revealing degenerative changes in the lower portion of the lumbar spine, and narrowing of L4-L5 disc space and to a lesser degree the L5- S1 disc space. See September 2001 x-ray. The first post-service evidence of a lumbar spine disability is a June 2001 x-ray noting degenerative changes in the lower portion of the lumbar spine. A May 2003 examiner diagnosed the Veteran with degenerative disc disease, noting that the examination was inconsistent. There was an acute pathology and a probable psychological component contributing to pain. The record also contains evidence of three separate post-service events related to the Veteran's low back. Specifically, an August 2002 entry in the outpatient treatment records shows that the Veteran was being seen for back pain, noting that he was involved in a motor vehicle accident in July 2002, where his vehicle was rear-ended. An x-ray taken at the time of the examination revealed degenerative osteoarthritis of the lumbar spine, and spondylolysis of S1. An August 2003 entry shows that the Veteran complained of low back pain, noting that he was helping a friend at a carnival and did a lot of bending. He stated that he did no heavy lifting but when he awoke the next day, he was in so much pain that he decided he probably had done too much lifting after all. The examiner assessed the Veteran with low back pain. A November 2003 entry noted that the Veteran presented with complaints of back pain secondary to an injury lifting a light desk. The Veteran was afforded a VA examination in October 2009. At this examination, the Veteran stated that he began having pain in his lumbar spine in April of 1978 while he was on maneuvers. He stated that he was catapulted into the air some 25 feet landing on a sand beach, and immediately noticed pain in his lower back. The Veteran stated that he received some medical aid and stayed in his quarters on bed rest for the remainder of the day. The Veteran noted that he continued to stay sore in his lower back after this incident, and was discharged a few months later, at which point he tried to do custodial work and to work as a welder. However, he stated that he was unable to do custodial work because the sweeping and mopping irritated his lower back. The Veteran reported that his low back continued to bother him since he left active duty, but he did not seek care on a regular basis. The Veteran reported in 1987 that he had a CT scan of the lumbar spine, and was told that he had a herniated nucleus pulposus, and noted that in 1992 or 1993, it was recommended that he have surgery; however, he declined. He also noted that he saw a Dr. Y. for acupuncture in 1984. (As discussed in the VCAA section above, the RO attempted to obtain these private medical records; however, the Veteran did not respond to the RO's request to complete Authorization and Consent to Release Information forms.) The examiner, L.B., M.D. diagnosed the Veteran with lumbosacral degenerative disc disease with spinal stenosis. Dr. B. noted that she had reviewed the Veteran's service treatment records, and found a January 1977 entry in which the physical examination component of the entry indicated "no tenderness in lower back." Dr. B. noted that the Veteran was seen on that occasion because he was feeling as if he had a relapse of viral hepatitis. On the back of the same page in the STRs the examiner noted that there was an entry indicating that the Veteran "fell off a truck, and had left chest pain." Dr. B. stated that there was no indication of back pain in that report, and that the remainder of the STRs did not indicate any entries that described lower back pain, a lower back condition, or diagnosis or diagnostic work-up of such complaints or diagnoses. The examiner noted that she reviewed the intervening medical records between the time the Veteran was discharged in 1978 and the present, noting that the medical records were silent for a complaint of low back pain until 2001. From that time forward, Dr. B. noted that there were several entries that indicated a history of lower back pain. An entry in August 2002 indicated that the Veteran was experiencing back pain following a motor vehicle accident, and a 2003 progress note indicated that he experienced back pain related to lifting injuries. Dr. B. also noted that the Veteran had statements in the claims file regarding continued symptoms since the in-service incident, which she took into account. Dr. B. noted that it was clear that the Veteran currently had a significant lumbar spine disability; however, a review of the STRs revealed only one incident in which the Veteran complained of back pain, which was in January 1977, when he presented with a feeling as if he was having a relapse of hepatitis. At that time, the Veteran presented complaining of heartburn, and minor chest and back pain. Dr. B. concluded that this appeared to be the type of back pain that would be musculoskeletal or systemic in relation to a viral syndrome and not spine disease. Dr. B. explained that the medical examination at the time indicated "no tenderness in the lower back," and additionally, there were no medical records to indicate evidence of lower back pain or a low back condition until 2001, which was over 20 years later. Therefore, Dr. B. noted that it was apparent that there was no link between the Veteran's service activity and his current low back disability. As such, Dr. B. opined that it was less likely than not that the Veteran's current back disability was attributable to military service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Veteran is currently diagnosed with lumbosacral degenerative disc disease with spinal stenosis. Although the STRs contain a January 1977 entry where the Veteran was seen because he believed that he was experiencing a relapse of viral hepatitis, and complained of heart burn, minor chest and back pain; on physical examination, the entry noted "no tenderness in the lower back." This January 1977 entry is the only incident in the STRs in which the Veteran complained of back pain, and at discharge in July 1978, the Veteran's spine was found to be normal. In her October 2009 opinion, Dr. B. opined that the Veteran's current low back disability was less likely than not attributable to military service, explaining that the Veteran's in-service back pain noted in the 1977 entry, was the type of back pain that would be musculoskeletal or systemic in relation to a viral syndrome, and that the Veteran's back pain noted in 1977 was not indicative of a spine disease. Further, as Dr. B. noted, in terms of continuity of symptomatology since discharge, the first post- service evidence of low back pain is not until 2001, over twenty years after discharge from service. Dr. B. concluded that because the only in-service notation mentioning back pain was related to a recurrence of viral hepatitis, and as such, was musculoskeletal or systemic back pain caused by a viral syndrome; there was no link between the Veteran's service and his currently diagnosed DDD with spinal stenosis. In forming her opinion, Dr. B. thoroughly reviewed the STRs, the medical evidence which chronicled his back pain, and specifically noted that she took into account the Veteran's statement that he had experienced continued back symptoms ever since the in-service incident. Nevertheless, despite the Veteran's statement regarding continuity of back symptomatology since the in-service incident, the VA examiner still concluded that his currently diagnosed spine disability was not related to the one time in-service entry noting back pain. Dr. B.'s medical opinion stands uncontradicted by the record. The Board acknowledges that the Veteran is competent to describe his back pain, as back pain is a symptom readily observable by a lay person, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); however, the Board questions the credibility of the Veteran's statement regarding experiencing back pain since discharge from service. Initially, the Board notes that the Veteran's July 1978 discharge examination reflected a normal clinical evaluation for the Veteran's spine, and the earliest post-service medical records documenting back pain is not until 2001, over twenty years after discharge. Further, the Veteran's statements regarding the date of onset of his back disability have been inconsistent. Specifically, on one occasion the Veteran reported that his disc problem did not surface until 10 years after the in-service incident where he fell from the truck. See February 1993 statement in support of claim. However, during a May 2003 VA examination, the Veteran stated that he had experienced chronic back pain ever since the in-service incident where he fell off the back of a moving vehicle, and during his October 2009 VA examination, the Veteran also reported experiencing pain in his lower back ever since he left active duty. Further, the Board finds it significant that the STRs contain a March 1977 entry noting that the Veteran fell off a truck, but only complained of chest pain. No back pain was reported. Additionally, the 2009 examiner considered the entire record and concluded that current disability was not likely related to service despite the Veteran's statement of continuity. In this case, as discussed above, the medical professional determined that the etiology of the Veteran's in-service back pain was likely a viral condition, and as such, was not related to any problem with the spine. For all these reasons, the Board finds that the Veteran's statements of continuity related to the spine are not believable. In summary, although the STRs contain one entry noting back pain, the 2009 VA examiner determined that the complaint of back pain was likely related to a viral syndrome, as the entry clearly described that the Veteran felt he was suffering from a recurrence of viral hepatitis, and in addition to back pain, he also reported chest pain and heart burn. Further, the first post-service entry documenting back pain was not until 2001, over twenty years after discharge, which although not conclusive as to a lack of continuity of symptomatology, as discussed above, the Board has also determined that the Veteran's statements of experiencing back pain since he fell off a truck are not credible. He did not report back pain at the time of the in- service accident, and he contradicted himself regarding the date of onset of his back problem, at one point reporting that it began immediately following his fall from the truck, and later noting that it did not surface until 10 years later. In deciding this issue, the Board has considered the benefit-of- the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this claim. The Veteran's DDD is not traceable to disease or injury incurred in or aggravated during active military service. ORDER Service connection for degenerative disc disease is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs