Citation Nr: 1046519 Decision Date: 12/13/10 Archive Date: 12/20/10 DOCKET NO. 09-08 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from January 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2009, the Board remanded this matter to provide the Veteran with a Board hearing. In October 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. An August 2003 rating decision, which denied service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is final. 2. The evidence associated with the claims file subsequent to the August 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence of record indicates that the Veteran's degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is likely related to service. CONCLUSIONS OF LAW 1. Evidence received since the final August 2003 determination wherein the RO denied the Veteran's claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2010). 2. The criteria for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for both reopening the Veteran's claim and resolution of this service connection claim for a low back disability at present without detriment to the due process rights of the Veteran. New and Material Evidence The Veteran seeks service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst. The RO previously considered and denied a claim for service connection for this identical back disability in an August 2003 rating decision. Although the Veteran filed a Notice of Disagreement, he did not perfect his appeal of this decision and, as such, it has become final. 38 U.S.C.A. § 7103(a); 38 C.F.R. §§ 20.302, 20.1103. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, was formerly denied in an August 2003 rating decision as the RO found that the evidence did not establish any relationship or nexus between the Veteran's current spinal disability and his inservice back injury. At the time of the August 2003 rating decision the evidence of record consisted of service treatment records; VA treatment records dated from October 2002 to February 2003; a VA spine examination dated in June 2003; a June 2003 VA examination of another complaint; and copies of written submissions from the Veteran. The following materials were subsequently associated with the claims file after the August 2003 rating decision: a service record which showed that the Veteran's back injury in July 1958 was in the line of duty; a July 1958 service treatment record which showed hospitalization and care for his back injury; a September 1958 X-ray of the lumbar spine which showed that compression fractures had healed and there had been no increase in deformity; VA treatment records dated from October 2002 to November 2008; a signed statement from the Veteran's spouse dated in July 2004; a November 2004 VA medical opinion which detailed why there was no relationship or nexus between the Veteran's current back disorder and his inservice injury; a copy of an April 2005 state disability examination; three private medical opinions that supported a positive relationship or nexus between the Veteran's current back disorder and his inservice injury from Dr. L.T. in June 2005, from an unidentified physician at Georgia Mountains Health in December 2007, and from Dr. C.N.B. in March 2009; an October 2006 private laboratory report; reports of VA examinations in February 2007 and February 2008 for another matter; signed statements from the Veteran's spouse and mother- in-law dated in April 2009; a transcript of the Veteran's October 2009 Board hearing; and copies of written submissions from the Veteran, his former attorney, and his representative. The evidence submitted subsequent to the August 2003 rating decision is new, in that it was not previously of record and is also material. As noted above, the claim was initially denied as the RO found that the evidence did not establish a relationship or nexus between the Veteran's current back disability and his inservice back injury. Subsequent to the final August 2003 decision, correspondence received from three private physicians support a nexus between the Veteran's current back disability and his inservice injury. The Board finds the evidence from Dr. L.T., an unnamed physician at Georgia Mountains Health, and especially that of Dr. C.N.B. sufficient to reopen the Veteran's claim in this case. Presumed credible, the additional evidence received since the August 2003 rating decision reflects that the Veteran has been diagnosed with a back disability and that this disability is related to service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Therefore, the evidence submitted since the final August 2003 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is reopened. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for a low back disability. In his written submissions and Board testimony, he contends that he suffered a back injury in service as the result of a parachute jump, has had trouble with back pain since service, and has been diagnosed with a current back disability. The Veteran's DD Form 214 documents that the Veteran's military occupational specialty was in light weapons infantry and that during service he served with the Army Rangers. On his January 1958 enlistment examination, it was noted that the Veteran was asymptomatic for lumbar lordosis. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The Veteran was given a 1 for the upper extremities. In fact, the Veteran's "PULHES" physical profile amounted to a "picket fence" (i.e., all 1's), indicating a high level of medical fitness. See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) (explaining the military medical profile system). Service records from July 1958 indicated that the Veteran was injured on his last qualifying jump when he collided with the canopy of another student, his parachute collapsed, and he rode another canopy into the ground and landed on his back. It was noted that the Veteran complained of an aching back, but was not admitted to an Army hospital until 10 days later. Diagnosis was broken back with crushed vertebrae. The line of duty determination noted that he would probably be placed in a cast for one month and then placed on profile after his release from the hospital. Some service treatment records indicated that the Veteran's back injury occurred in June 1958 and others indicated his accident occurred in July 1958. Service treatment records from July 1958 showed the Veteran's hospitalization and treatment for his back. A September 1958 X-ray study of the lumbar spine showed compression fractures were healing and that there was no increase in deformity. Before discharge, the Veteran was seen several times for back pain. A January 1959 record showed another hospital admission for an inability to bend his back, severe pain, and radiation into both buttocks. An X-ray study showed an old healed compression fracture. No orthopedic disease was found and the Veteran was returned to full duty. An August 1959 examination of the Veteran's back was essentially negative. A December 1959 service treatment record noted that the Veteran's back looked fine, that he needed no profile, and that he could return to normal full duty. His May 1960 discharge examination revealed no spinal or musculoskeletal abnormalies. VA treatment records dated from October 2002 to November 2008 showed treatment for radiating lower back pain, including physical therapy for lumbar radiculopathy. In an October 2002 VA medical record it was noted that the Veteran said that he had chronic back pain since his service injury, but that such was not disabling until three weeks before when he stepped out of a truck. An October 2002 magnetic resonance imaging (MRI) scan of the lumbar spine revealed a synovial cyst and bulging discs at the L3-4 and L4-5 levels. November 2002 VA medical records showed the Veteran underwent a L4-5 discectomy or laminectomy and cyst removal. The Veteran underwent a VA examination in June 2003. It was noted that the Veteran had a lumbar diskectomy and synovial cyst removal in November 2002 after twisting his back the month before when exiting his truck. The Veteran complained that he first injured his back in service and that since service he complained of intermittent problems, such as occasional backache. X-ray studies showed only very minimal degenerative disc disease. Diagnosis was degenerative disc disease of the lumbar spine, status post diskectomy and removal of synovial cyst. It was noted that prior fecal incontinence was corrected after surgery. In November 2004, a medical opinion was obtained from the June 2003 VA examiner to the effect that the Veteran's lower extremity radiculopathies and range of motion abnormalities were not caused by or a result of his acute lumbar fracture in 1958. The VA examiner noted that from service discharge to 2002 the Veteran had minimal back symptoms and only occasionally visited a chiropractor. He also had no complaints of radiculopathy or incontinence before 2002. In October 2002, the VA examiner reported that the evidence showed a new acute lower back injury which abruptly led to the lower extremity symptoms and incontinence. Because these symptoms had been absent for the preceding 42 years, the VA examiner said that he could not connect the new injury to any prior sustained injury in service. He said the Veteran had healed from his service injury and that if the Veteran had sustained any disc injury in service it would not have taken 42 years for any symptoms to show. An April 2005 state disability examination report noted that the Veteran had diabetes, back pain, Parkinson's disease, and chronic obstructive pulmonary disease. The report does not mention any back injury in service. A handwritten and signed note from L.T., M.D., of Georgia Mountains Health dated in June 2005 related that it was his professional opinion that the Veteran's service-related back injury in 1958 was the most likely cause of his current chronic low back pain. Another private handwritten medical opinion dated in December 2007 from Georgia Mountains Health reported that it was the physician's opinion that the Veteran's back pain was the direct result of his 1958 service injury. The physician's signature is illegible. A private independent medical opinion by C.N.B., M.D., was received by VA in March 2009. Dr. C.N.B. disclosed that he was paid a flat fee before he drafted his report and had no vested interest in the production of the report. He enclosed a copy of a March 2009 e-mail from the Veteran in which the Veteran complained of pain in his lower back and middle back since his service injury, current radiating pain, and an inability to stand or walk for long. He told Dr. C.N.B. that he had gone to various chiropractors every three to six months for relief and also utilized orthopedic mattresses, heating pads, and a hot tub. He currently used a back brace, a wheeled walker, and a TENS unit provided by VA. Dr. C.N.B. diagnosed a severe lumbar spine disease as documented on MRI scans. He opined that the Veteran's current neck problems were due to his military service. Dr. C.N.B. noted in explanation that the Veteran was fit for duty at enlistment, that he had a parachute accident while in service, that he had continuous problems with his low back since service which required visits with chiropractors, and that a treatise showed such an injury precipitates or accelerates the onset of the degenerative process of the spine. He also noted that it was well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability and quoted a medical author to this effect. Dr. C.N.B. also opined that the Veteran's 2002 back injury had been incorrectly labeled a "twisting" injury as the Veteran told him he had simply stepped out of his truck. X-ray studies were also consistent with long-standing trauma. Dr. C.N.B. also wrote that the Veteran's 2002 back injury was due to his multilevel degenerative changes that were due to his service injury. Inservice compression fractures certainly axially loaded his entire lumbar spine because his MRI showed degenerative disease without another etiology. He opined that the Veteran's service injury weakened the spine and caused the degenerative disease and that weakened spinal ligaments caused his back to then fail again in 2002 with mild trauma. Though the service injury and the injury in 2002 occurred at different disc levels both occurred in the low back region which was axially loaded and traumatized during service. Dr. C.N.B. also supported his opinion with citations to medical literature. In his independent medical opinion, Dr. C.N.B. also noted that the 2003 VA examiner did not: comment on spine axial loads, which are increased in parachute jumping; did not explain the relationship between the Veteran's disc disease and the Veteran's 2002 injury or why the Veteran complained of chronic low back symptoms and chiropractor visits between 1960 and 2002; incorrectly described the 2002 injury as a "twisting" injury; and did not provide an alternative etiology for film evidence of degenerative disc disease in the lumbar spine. In signed statements dated in April 2009, the Veteran's wife and mother-in-law related that they knew the Veteran for 17 years and ever since they had known him he had back pain due to a parachute jump injury while in service. The Veteran's wife noted that he had been to numerous chiropractors to no avail. Based on a review of all the evidence of record, the Board finds that the preponderance of the evidence, at the very least, is in equipoise as to whether the Veteran's current diagnosed back disorder is related to his period of active service. Initially, as noted above, the Board notes that the Veteran has been diagnosed with current degenerative disc disease of the lumbar spine. It is clear that he has a current low back disability. Service treatment records show a serious inservice injury to the back and subsequent treatment. The Board also observes that the Veteran's lay evidence of difficulties in service and continuity of symptomatology is competent evidence to show possible in- service occurrence of a disease or injury, because difficulty with back sprain, muscle spasms and back pain is that type of disorder capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus); see also Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007) (holding that medical evidence is not always required to establish the elements of in- service incurrence and nexus). Although the Veteran may not be competent to assess degenerative disc disease, he is clearly competent to relate his symptomatology, which included back pain which apparently first manifested in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board recognizes that the record contains competing medical opinions as to the etiology of the Veteran's current lumbar spine disorder. The Board must thus determine how much weight to afford the opposing opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). The Board may weigh one medical professional's opinion over another, depending on factors such as the reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior evidence. Id. at 470-71 (noting that "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 conclusions that the physician reaches."). The Board must provide adequate reasons and bases if it adopts one medical opinion over another. Owens v. Brown, 7 Vet .App. 429, 433 (1995) (noting that the Board may "favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases"). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight of the credibility of the evidence in the adjudication of the merits. See Hernanadez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The June 2003 VA examiner opined in November 2004 that it was less likely than not that the Veteran's back disorder was related to service because of a 42-year break between discharge from service and the first post-service medical evidence of treatment for a back disorder. However, his opinion appears deficient in view of several criticisms leveled by Dr. C.N.B.'s subsequent report (see above). The two private opinions of Dr. L.T. and another physician from Georgia Mountains Health are clearly inadequate because each one-paragraph statement provided only a conclusion and no rationale for the given opinion. The private opinion by Dr. C.N.B. in support of a nexus is not deficient merely because he did not review the Veteran's claims file. See Gardin v. Shinseki, --- F.3d ----, 2010 WL 2898320 (Fed. Cir. July 16, 2010) (noting that neither statute nor regulation requires that a private physician review a veteran's medical service record before his or her opinion may qualify as competent medical evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (mere statement that one physician did or did not have access to the claims file is of little use in determining the probative value of the physician's opinion). Indeed, Dr. C.N.B. clearly had access to many of the medical records found in the Veteran's VA claims file. The Board finds that Dr. C.N.B.'s opinion deserves much greater weight than that of the VA reviewer because the typewritten single-spaced seven-page report is comprehensive, noted details from the Veteran's service and post-service medical records, and provided rationales for several medical questions raised by whether a parachute accident a half-century ago had manifested in the Veteran's current low back disability. The report and medical opinion also included a description of the Veteran's current symptoms based on an enclosed e-mail message from the Veteran. The Board notes that on page 3 of the report Dr. C.N.B. referred to the Veteran's current "neck" problems, but the Board assumes this is a typographical error in view of the extensive discussion of the Veteran's back disability in every other line of the opinion. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the competing medical opinions are, at the very least, in equipoise as to the question of whether the Veteran's low back disability is related to service. There can be no doubt that further medical inquiry could be undertaken with a view towards additional development of the claim. However, granting the Veteran the benefit of the doubt, the Board finds that Dr. C.N.B.'s independent expert opinion in March 2009 is sufficient to provide proof of a nexus, or relationship, between the Veteran's currently diagnosed degenerative disc disease and his period of active service. Therefore, the Veteran has a medical opinion linking a diagnosed lumbar disorder to service. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds service connection is warranted for the Veteran's low back disability. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection, the claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is granted. ORDER New and material evidence having been submitted, the claim for service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is reopened. Service connection for degenerative disc disease of the lumbar spine, status post laminectomy and removal of synovial cyst, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs