Citation Nr: 1123528 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 05-29 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability, claimed as degenerative joint disease (DJD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2004 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was previously before the Board in March 2009 and remanded at that time for additional evidentiary development, to include providing the Veteran proper notice, obtaining outstanding VA treatment records, and affording the Veteran a VA examination. The requested development was substantially completed as directed and the Veteran's claim is before the Board for final appellate consideration. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). To the extent that the accredited representative raised the issue of entitlement to service connection for a cervical spine disability in the April 2011 informal hearing presentation, such issue has not yet been adjudicated by the RO. Accordingly, it is referred to the RO for the appropriate action. FINDINGS OF FACT 1. Although the Veteran was treated for back strain on more than one occasion in service, any currently diagnosed back disability is not related to service, nor was arthritis shown to any degree within one year of discharge. 2. The Veteran's statements regarding continuity of symptoms lack credibility. CONCLUSION OF LAW A back disability, claimed as degenerative joint disease, was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his currently diagnosed back disability, claimed as degenerative joint disease (DJD) is related to his period of active military service. In particular, the Veteran asserts that he sustained a back injury in service after he fell off of the back of a truck or lifted a heavy object. See May 1996 statement; April 2010 VA Compensation and Pension (C&P) examination report. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). According to 38 C.F.R. § 3.309(a) (2010), service connection for certain disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. Factual Background and Analysis Service treatment records (STRs) associated with the claims file revealed that the Veteran was afforded a clinical evaluation and physical examination in November 1966 prior to entering service. The clinical evaluation was normal and no back abnormalities were found at that time. The Veteran also described his health as "good," but provided a medical history in which he specifically stated that he had recurrent back pain following a broken rib. The Veteran presented to sick call in December 1967 and was diagnosed as having back strain. He was given prescription pain medication. He returned to sick call in May 1968 with continued complaints of back pain since the previous December. A notation on the examination report indicated that the Veteran had back pain "since Friday" after lifting a heavy object. Physical examination revealed tenderness in the lumbo sacral area. The impression was strain. He was given prescription pain medication. The Veteran was also afforded a clinical evaluation and physical examination in March 1969 prior to discharge from service. The clinical evaluation was normal and no back abnormalities were found at that time. The Veteran described his health as "good," and provided a medical history in which he specifically denied ever having recurrent back pain. The first pertinent post-service evidence of record is dated March 1985. The Veteran reported to A. Suvari, M.D. with subjective complaints of musculoskeletal pain. X-rays of the thoracic spine revealed evidence of moderate scoliosis and early osteoarthritic changes. The Veteran was treated at a private medical facility in April 1986 for subjective complaints of chest pain. His past medical history was significant for a seizure disorder. A chest x-ray revealed mild thoracolumbar scoliosis. VA administered a Compensation and Pension (C&P) examination in May 1986. The Veteran's past medical history was described as "entirely negative" except for a history of sinus surgery. A musculoskeletal and neurological evaluation was unremarkable. No back abnormalities were found at that time. The Veteran was afforded an x-ray and computed tomography (CT) scan of the lumbar spine at Walker Regional Medical Center in March 1995 for an unknown purpose. No evidence of focal disc herniation or foraminal stenosis was found. X-rays of the lumbar spine revealed "no bony abnormalities." In March 1996, B. Russell, M.D. submitted a statement in connection with the Veteran's claim for Social Security Disability benefits. Specifically, Dr. Russell noted that the Veteran had a past medical history significant for seizure disorder. Dr. Russell also noted that the Veteran experienced leg and back pain, general weakness and soreness, and had difficulty walking. A physical examination showed decreased sensation in the feet and lower legs as well as generalized pain through the toes. Dr. Russell described the Veteran as "totally and permanently disabled" as a result of his many medical problems. The Veteran was subsequently awarded Social Security Disability benefits, effective February 1986, as a result of a conversion disorder with pseudoseizures and for a history of temporal lobe seizures. The Veteran testified before a decision review officer (DRO) in September 1996. Specifically, the Veteran stated that he experienced "continuous pain" in his back for which he took prescribed pain pills and muscle relaxants. The Veteran denied having any back problems prior to service and stated that he injured his back in service by falling off of a "mess truck" in Germany while wearing an 85-pound backpack. See Transcript, p. 2. According to the Veteran, he was subsequently knocked unconscious and when he "came to," he was in the medical tent. The Veteran noted that he went to sick call on more than one instance while in service, but was merely prescribed "pills" to treat his pain. He stated that he continued to have problems with his back at the time of discharge from active service, but that his symptoms were "not as bad." Id. at p. 3. He also reported a continuity of symptoms since discharge from service. Also associated with the claims file is a statement from Dr. Russell dated September 1996. According to Dr. Russell, the Veteran had osteoarthritis, among other conditions. Dr. Russell submitted an additional statement in support of the Veteran's claim dated December 1998. Dr. Russell noted at that time that the Veteran's past medical history was significant for "severe" back pain and general soreness in the hip area. Dr. Russell described the Veteran as "totally and permanently disabled" from doing any meaningful work as a result of his general medical condition. The Veteran was afforded a spinal x-ray at a VA medical facility in April 2003 after reporting a three-week history of back pain. Prior to this episode, it was noted that the Veteran had a history of mid to low back pain for approximately 28 years. The spinal x-ray was interpreted to show evidence of "degenerative joint disease with thoracic + lumbar spurring." A VA nurse practitioner completed a form dated June 2004 at the request of the Veteran's representative. She noted that the Veteran's past medical history was significant for chronic low back pain. X-rays of the Veteran's spine performed in April 2004 was interpreted to show evidence of DJD with thoracic and lumbar spurring while magnetic resonance imaging (MRI) of the spine taken in May 2004 showed no evidence of significant lumbar neural impingement. The impression, according to the nurse practitioner, was chronic pain at the back and legs. She described the Veteran's prognosis as "good." The Veteran underwent physical therapy treatment at a VA medical facility in July 2004 for low back pain with associated numbness in the legs. According to the Veteran, these symptoms persisted for the last "few years." It was also noted that a previous x-ray revealed evidence of DJD and that the Veteran used a cane for the last four years. Dr. Russell submitted a statement in support of the Veteran's current claim dated March 2005. According to Dr. Russell, the Veteran's "back condition is more likely than not related to injury while in service." The Veteran returned to VA for additional care in January 2006 and January 2007 after reporting increased lower back pain with radiation to the legs. A review of systems was negative for joint pain or swelling. The impression was lower back DJD, among other conditions. The Veteran was issued a replacement lumbosacral corset in May 2010 and instructed on its use. The Veteran was also afforded a VA C&P spine examination in April 2010. The examiner reviewed the claims file. According to the Veteran, he was treated in sick call for episodes of low back pain after lifting a heavy object. It was noted that the Veteran was diagnosed as having strain. He indicated that his low back pain symptoms increased since 1973 and got progressively worse in the intervening years. Diagnostic testing revealed evidence of minimal to mild discogenic degenerative change in the lumbar spine, worse at the L4-5 level. Moderate facet degenerative change in the lower lumbar spine was also noted. The impression was degenerative lumbar disease. The examiner noted that the Veteran was previously employed in "maintenance" but that he retired due to low back pain in 1980. According to the examiner, the Veteran's currently diagnosed back condition was "less likely as not" caused by or a result of lower back muscle strain. In support of this conclusion, the examiner noted that while the Veteran was diagnosed as having muscle strain in service, "there was no records of him having any back problems upon his discharge from the military." The examiner also noted that subsequent treatment records showed no evidence of pathological reasons for the Veteran's low back pain or lower leg problems. Given the evidence of record, the Board finds that the preponderance of the evidence is against a finding of service connection for a back disability in this case. Preliminarily, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. According to 38 U.S.C.A. § 1153 (West 2002), a "preexisting injury or disease will be considered to have been aggravated by active . . . service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. §§ 3.303(c), 3.304(b) (2010); Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2010). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2010). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, the Veteran reported in November 1966 (prior to entering service) that he had recurrent back pain following a broken rib. Despite this notation on the pre-induction report of medical history, the presumption of soundness applies in this case and it has not been rebutted based on the evidence of record. With regard to the issue of whether the Veteran had a back disability that existed prior to his period of active service, the Board finds that the totality of the medical evidence does not constitute clear and unmistakable evidence of such a conclusion. The Veteran does not allege, nor does the record reflect, evidence of a pre-existing back disability prior to entering service. Pain alone is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, there are no other references to a pre-existing back disability (aside from the single reference to recurrent back pain on the November 1966 examination report). This notation, without additional supporting evidence, is insufficient to rebut the presumption of soundness in this case. Since the presumption of soundness applies in this case, the Board will proceed to evaluate the Veteran's claim on a direct basis. Although the Veteran was injured in service and was treated on more than one occasion in service for subjective complaints of low back pain and/or strain, the Veteran's separation examination is completely negative for a low back disability of any kind. There is also no evidence of arthritis within one year after discharge from service. Rather, the first evidence of post-service osteoarthritic changes is dated March 1985, nearly 20 years after discharge from service. The United States Court of Appeals for the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the lapse of nearly two decades between service and the first evidence of pertinent disability is evidence against the Veteran's claim for a back disability. Furthermore, although the Veteran has a currently diagnosed low back disability, the most probative evidence of record does not link this disability to his period of active service. On the contrary, the April 2010 VA C&P examiner concluded that the Veteran's current back disability was "less likely as not" caused by or a result of lower back muscle strain. In support of this conclusion, the examiner noted that while the Veteran was diagnosed as having muscle strain in service, "there was no records of him having any back problems upon his discharge from the military." The examiner also noted that subsequent treatment records showed no evidence of pathological reasons for the Veteran's low back pain or lower leg problems. The Board finds this VA examination report to be highly probative evidence on the issue of service connection because the examiner provided a rationale and relied on professional training and expertise as well as an interview with and examination of the Veteran and review of the claims file (including pertinent medical history) before reaching these conclusions. The Veteran has also submitted statements in support of the current claim in which he attributed his current back disability to his period of active service, and in particular, to either a fall from a truck or lifting heavy objects. The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Here, the Veteran is capable of observing symptoms such as back pain, and the Board ultimately finds the Veteran's statements in this regard to be competent. But, he is not competent (i.e., professionally qualified) as a lay person to diagnose a back disability of arthritis or offer an opinion as to the cause of such a disability, and its relationship to service, if any. Moreover, the competent, probative evidence of record, which includes a VA C&P examination report, is negative to the claim and service connection on a direct or presumptive basis is not warranted. Even assuming that the Veteran is competent to offer such diagnoses and etiological opinions, and the Board were to find such statements credible and probative, the Board finds that any such lay statements made by the Veteran in this regard is entitled to limited probative value since he lacks any medical training. See 38 C.F.R. § 3.159(a)(1) (2010) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the lay statements of record are outweighed by the April 2010 VA C&P medical opinion. In particular, the VA medical opinion was based on the professional expertise and training of the examiner, a physical examination of and interview with the Veteran, a review of the claims file and medical history (as the Veteran described it), and a rationale was provided. The Board is aware that Dr. Russell expressed the opinion that the Veteran's "back condition is more likely than not related to injury while in service." See March 2005 statement. However, Dr. Russell neither provided a rationale to support this conclusion nor can a rationale be inferred from his simple statement. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that a medical opinion that contains only data and conclusions is not entitled to any probative value; there must be factually accurate, fully articulated, sound reasons for the conclusion). Accordingly, his statement is not entitled to any probative weight. As an alternative to establishing the second and third prong in Hickson, the Veteran may show a continuity of symptomatology. See Barr, 21 Vet. App. At 307; Savage v. Gober, 10 Vet. App. 488, 495-97 (1997)). Continuity of symptomatology may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. The evidence of record does not establish continuity of symptomatology in this case. Even though back pain and/or strain was "noted" in service, the Veteran later provided conflicting information about continuity of symptoms. On one hand, the Veteran's past medical history was described as "entirely negative" in May 1986 except for a history of sinus surgery. The Veteran also stated in July 2004 that he experienced back pain for the last "few years," while the April 2010 VA C&P examination report suggested increased symptomatology beginning in 1973. On the other hand, the Veteran testified in September 1996 that he had symptoms at discharge and thereafter. He made a similar statement in April 2003. Given these conflicting statements regarding continuity of back symptoms since discharge from service, the Board finds that the Veteran's statements in this regard lack credibility. Moreover, at the time of his discharge examination, the Veteran reported that he did not have recurrent back pain. The Board finds that the document completed by the Veteran approximate in time to his discharge, in which he reported that he did not have back pain, is credible. His current statements that he has continuous pain and had back problems at the time of discharge that were not that bad are not entitled to the same finding of credibility in light of the affirmative statement to the contrary that he made approximate to the time of discharge. Significantly, the Board also notes that the Veteran has had a diagnosis of and treatment for a seizure disorder for several years as reflected in the claims file. Many of these treatment records contain an extensive recounting of the Veteran's past medical history. However, there is no evidence of a continuity of back symptoms until several years after discharge from service. The Veteran's conflicting statements as well as the absence of documented continuity of symptoms or care until several years after discharge from service is particularly relevant because it was to the Veteran's benefit to provide accurate information to the medical provider treating him at those times. In any event, the April 2010 VA C&P examiner concluded that the Veteran's current back disability was "less likely as not" caused by or a result of lower back muscle strain. In support of this conclusion, the examiner noted that while the Veteran was diagnosed as having muscle strain in service, "there was no records of him having any back problems upon his discharge from the military." The examiner also noted that subsequent treatment records showed no evidence of pathological reasons for the Veteran's low back pain or lower leg problems. The April 2010 VA C&P examiner reviewed the claims file and considered the Veteran's lay statements in reaching this conclusion. There was also a lack of chronicity and continuity of care for these claimed back disability until many years after discharge from service. See Maxson, 230 F.3d at 1333. For the foregoing reasons, the Board finds that the April 2010 VA C&P opinion is highly probative because it was based on a review of the history as the Veteran described it, a physical examination, and as a rationale was provided. As previously stated, entitlement to service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In this case, there is competent medical evidence showing diagnosed back disability, but the preponderance of the evidence is against finding that there is a link between this disability, which first manifested many years after discharge from service, and the Veteran's period of active service. The VA examiner did not link the current back disability to active service. Accordingly, the Board concludes that service connection for a back disability, claimed as a DJD, is not warranted under any theory of causation and this claim, therefore, must be denied. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans 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) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, 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). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The VCAA duty to notify was satisfied by way of a letter dated July 2004 that fully addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the service connection claim for a back disability on a direct and presumptive basis, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also provided with additional notice in March 2006 pursuant to the Court's decision in Dingess of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The Veteran's claim was readjudicated following this notice by way of a supplemental statement of the case (SSOC) dated June 2010. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The Veteran's service treatment and post-service treatment records have been obtained. Social Security Administration records were obtained. The Veteran was afforded a VA examination in connection with the current service connection claim. This examination evaluated the Veteran's back disability in conjunction with his prior history, described it in sufficient detail so the Board's evaluation of it was an informed one, and an opinion with supporting rationale was provided. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, the Veteran's claim was previously before the Board in March 2009 and remanded at that time for additional evidentiary development, to include providing the Veteran proper notice, obtaining outstanding VA treatment records, and affording the Veteran a VA examination. The requested development was completed as directed. D'Aries, 22 Vet. App. at 105; Dyment, 13 Vet. App. at 146-47. Although the RO, in a letter dated in March 2009, referred to the issue as whether new and material evidence had been submitted to reopen the claim, the Veteran was informed that he should submit evidence indicating the condition has been present since service and that the condition was incurred in or aggravated by service. He was informed of the types of evidence and information that he could submit and of the evidence that the RO would attempt to obtain. The Veteran responded that he had no further evidence to submit. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to- assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). (CONTINUED ON NEXT PAGE) ORDER Service connection for a back disability, claimed as degenerative joint disease, is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs