Citation Nr: 1127303 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 97-13 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for lumbar discogenic disease, to include as secondary to service-connected right knee disability and/or service-connected lumbar paravertebral myositis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to October 1978. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a February 1998 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in San Juan, Puerto Rico, which denied the Veteran's application to reopen his claim of entitlement to service connection for lumbar spine discogenic disease, to include as secondary to service-connected right knee and/or lumbar spine disorders. In January 2007, a hearing was held before a Decision Review Officer at the San Juan, Puerto Rico RO. A transcript of this proceeding has been associated with the claims folder. This issue has previously been considered by the Board. In April 2008, the Board remanded the case for additional development. In July 2010, the Board determined that new and material evidence sufficient to reopen the claim had been received, and again remanded the case for additional development, specifically, to obtain a VA examination and opinion concerning the etiology of the Veteran's claimed discogenic disease. The VA examination was performed in August 2010, and in February 2011, the VA Appeals Management Center issued a Supplemental Statement of the Case, in which it continued to deny the appellant's claim. The claims folder has been returned to the Board for further appellate proceedings. FINDING OF FACT The Veteran's lumbar discogenic disease is not shown by the probative evidence of record to be causally related to a disease, injury or event in service, or to a service-connected disability. CONCLUSION OF LAW The Veteran's lumbar discogenic disease was neither incurred in, nor aggravated by, active military service, and his lumbar spine discogenic disease is not proximately due to, the result of, or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307(a)(3), 3.309, 3.310(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). a.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) ( 2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, (regarding the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim), was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. VA essentially satisfied the notification requirements of the VCAA by means of letters dated April 2002 and August 2008. The Veteran was informed of the types of evidence needed in order to substantiate his claim of entitlement to service connection, the division of responsibility between the appellant and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The Board further notes that a September 2007 letter, as well as the August 2008 letter also satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. b.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, including a statement from a private physician regarding whether his lumbar discogenic disease is related to service, and VA examination reports dated October 1997, November 1999, and August 2010. Additionally, the claims file contains the Veteran's statements and testimony in support of his claim. The Veteran has not referenced any outstanding records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been associated with the claims folder. Review of the examination reports reveals that the examiners reviewed the relevant evidence of record, including the Veteran's service and post-service treatment records, elicited from the Veteran his history of low back injuries, symptomatology and treatment, performed comprehensive physical examinations, reviewed diagnostic test results, and provided clinical findings detailing the results of their examinations, along with reasons and bases explaining their opinions. Accordingly, the Board concludes that the examination reports are adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Applicable laws and regulations The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by, or (b) aggravated by a service connected disability. Id.; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board observes that the provisions of 38 C.F.R. § 3.310 were amended, effective October 20, 2006, during the pendency of the instant appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected disability is judged. Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been the VA's practice, and thus suggests that the recent change amounts to a substantive change in the regulation. For this reason, and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran. III. Analysis The Veteran contends that his current lumbar discogenic disease is the result of his service-connected right knee impairment, and/or his service-connected lumbar paravertebral myositis. He specifically argues that, beginning in October 1977, he injured his right knee several times, but did not receive proper treatment until August 1978, at which time, he was seen by an orthopedic surgeon. In September 1978, he underwent surgery on the right knee, and underwent a second surgery in 1980. The Veteran avers that, at that time, his physician told him that, later in life, he would experience back problems due to the "leaning posture" he assumed to avoid stress on his right lower extremity. See letter from Dr. William Davis, dated November 2008. Review of the service treatment records shows that the Veteran indeed sustained a right knee injury in 1977. However, there are no complaints of, treatment for, or diagnosis of a low back disorder during service. On his July 1978 service separation examination report, the Veteran was found to have normal findings for the spine and other musculoskeletal system. The post-service treatment records reveal that the first time the Veteran sought treatment for a low back disorder was in January 1993, when an MRI revealed a diagnosis of degenerative and bulging discs at the L3-4 and L4-5 levels. In October 1997, the Veteran was afforded a VA spine examination, at which time, he reported a longstanding history of low back pain with radiation to the left buttock. A physical examination revealed no postural, fixed or neurological abnormalities; he was specifically noted to have a normal gait cycle with negative straight leg raises bilaterally. The diagnosis was lumbar paravertebral myositis. As this was an examination pursuant to the Veteran's request for an increased evaluation for his already service-connected lumbar paravertebral myositis, an opinion was not rendered. A February 1998 examination addendum also diagnosed posterior bulging discs at L3-4 and L4-5 with indentation of anterior aspect of the dural sac, per the January 1993 MRI. In November 1999, the Veteran was afforded a second VA spine examination. The examiner noted that there were no postural abnormalities or fixed deformities, nor neurological abnormalities; again, it was observed that he had a normal gait cycle and negative straight leg raises bilaterally. He also reviewed a November 1998 MRI. The diagnoses were lumbar paravertebral myositis and degenerative joint disease of the lumbosacral spine, with concentric bulging discs seen at L3-4, L4-5 and L5-S1, and a herniated disc noted at the L5-S1 level. Again, however, an opinion was not rendered regarding the Veteran's claim of entitlement to service connection for lumbar discogenic disease. As noted above, the claims folder also contains a letter dated November 2008 from the Veteran's private physician, Dr. William Davis. Dr. Davis noted that the Veteran was seen in his office in October 2008 requesting an evaluation and opinion concerning his spinal condition, which he noted as degenerative joint disease of the lumbar spine, disc bulging at L3, L4 and L5, and a disc protrusion and desiccation of the L5 disc. After citing the aforementioned history as reported by the Veteran, Dr. Davis diagnosed him with chronic lumbar subluxations, degenerative disc disease of the lumbar spine, and herniated disc (bulging or protruding), as reported in the November 1998 MRI. He opined that there was "a probability that the [Veteran's] prolonged knee condition (if he was constantly walking in an antalgic lean*) could have caused/aggravated his multiple lumbar disc problem (bulging, protrusion, degeneration, desiccation)." (emphasis added) At the asterisk, he stated that axial spinal compression is a common causative factor in spinal disc conditions. In August 2010, the Veteran was afforded another VA spine examination to obtain an opinion concerning the cause of his claimed lumbar discogenic disease. The examiner noted that she carefully reviewed the claims folder, noting specifically that her review included the Veteran's previous VA examinations and private opinion from Dr. Davis. In this regard, she observed that, during the October 1997 examination, the Veteran was found to have a normal gait cycle, normal muscle strength, and no neurological deficit. She observed that, during the November 1999 examination, the same findings were cited, including a finding that he had negative straight leg raises bilaterally. She also cited November 1999 VA joints evaluation (pursuant to the Veteran's claim for an increased disability rating for his knee). Additionally, she noted that, in his letter, Dr. Davis pointed out the fact that there was only a "probability" that the Veteran's knee condition could affect his lumbar disc condition "if he was constantly walking in an antalgic lean." See letter from Dr. Davis, November 2008. The VA examiner also noted that she interviewed the Veteran, finding that he did not have a lumbar disc problem until 1993, and that, during her examination, although he had an antalgic gait, he had a normal gait cycle. Based on the physical examination and review of diagnostic test results, the VA examiner diagnosed the Veteran with multilevel degenerative changes of the lower lumbar spine, more prominent at L4-5 where there was mild central spinal stenosis and moderate-to-severe narrowing of both neural foramina. She then opined that the Veteran's lumbar discogenic and arthritis diseases were less likely than not caused or aggravated by his service-connected right knee disability, left knee disability or lumbar paravertebral myositis. In this regard, the examiner explained that the Veteran reported having experienced knee symptomatology in 1977, during his last year in active military service, but did not report any low back symptoms or medical treatment for such symptoms until 1993, some 15 years after service. She observed that there was no evidence of complaints, imaging or medical evaluation due to a low back condition prior to 1993. She noted that, in October 1997, when the Veteran underwent his first VA compensation and pension examination (20 years after his first right knee surgery and nearly five years after the diagnosis of lumbar discogenic disease by MRI), he was found to have a normal gait cycle. She also observed that, during the November 1999 examination, he again was found to have a normal gait cycle and no unequal stress forces during ambulation, some 21 years after service and after his first bilateral knee symptoms and right knee surgery. She specifically noted that the medical evidence supported the fact that knee arthritis, knee meniscal pathology and lumbar discogenic disease are different disease entities with different pathophysiology and are completely unrelated. She added that, during the current examination, even though the Veteran was found to have an antalgic gait, he had a normal cadence while limping and had no unequal stress forces in his gait pattern. Regarding Dr. Davis' report, she noted that the medical evidence failed to support his statement that having an antalgic gait could cause or aggravate lumbar discogenic disease, and specifically observed that there was no evidence that Dr. Davis had ever reviewed the Veteran's VA claims folder. Again, she noted that it was important to remember that even 21 years after his bilateral knee symptoms and surgery, he still had a completely normal gait cycle. III. Conclusion In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board also has the responsibility to weigh the evidence, including the medical evidence, to determine where to give credit and where to withhold the same, and in so doing, the Board may accept one medical opinion and reject others, provided it offers an adequate basis for so doing. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Based on a review of the complete evidence of record, the Board concludes that the probative evidence is against the Veteran's claim of entitlement to service connection for lumbar discogenic disease. In this regard, as noted above, the Board has considered whether service connection is warranted either on a direct or secondary basis. The Board notes that, whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). With regard to granting service connection on a direct or secondary basis, the Board finds the most probative evidence to be the August 2010 VA examination, whereby the examiner, after thoroughly reviewing the evidence of record, including the Veteran's service and post-service treatment records, the previous VA examination reports, and the statement from Dr. Davis, opined that it was less likely than not that the Veteran's current discogenic lumbar disorder was either related to service or his service-connected right knee disability and/or service-connected lumbar paravertebral myositis. In arriving at her conclusion, the examiner provided a well-reasoned and fully-detailed report explaining the reasons and bases for her opinion. Significantly, she noted that even more than three decades after his service-related knee condition, the Veteran still had a normal gait cycle. She further observed that the Veteran did not seek treatment for a lumbar spine disorder until 1993, nearly 15 years after service. In this regard, the Board notes that the Court has held that 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 a chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The fact that the clinical evidence shows that the Veteran did not complain of chronic lumbar spine pain and/or symptomatology until 1993 is evidence that significantly weighs against the claim on both a direct and secondary basis. The Board further notes that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As noted above, in his letter, the Veteran's private physician, Dr. Davis wrote that there was a "a probability" that the Veteran's prolonged knee condition could have caused or aggravated his multiple lumbar disc problem only "if he was constantly walking in an antalgic lean." (emphasis added). At that time, Dr. Davis never stated or implied that he had reviewed any of the Veteran's service or post-service treatment records, which, as discussed above, consistently revealed that he had a normal gait cycle. Furthermore, at no time did Dr. Davis provide an unequivocal opinion, along with fully-rationed reasons and bases to explain why he believed the Veteran's service-connected disorders could have caused his lumbar disc disabilities. Instead, his opinion was qualified by such words and phrases as "a probability" and "could have caused." In this regard, the Court has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As such, the Board accords little probative weight to the opinion of Dr. Davis. In addition to the medical evidence, the Board has also considered the Veteran's contention that his current discogenic lumbar disease is related to his already service-connected knee and/or back conditions. In this regard, the Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that joint and muscular pain are the types of symptoms that the Veteran is competent to describe, his statements carry some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the Court has held that, even where a veteran has asserted a continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition ...." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). In this case, not only are the Veteran's service treatment records negative for any continuing complaints of a lumbar spine disorder, but, as discussed, a competent VA examiner, after a review of the evidence of record, concluded that the Veteran's lumbar disc condition was neither related to service, nor to a service-connected disability. Accordingly, the Board places greater probative weight on the opinion of the VA examiner, a competent, experienced medical profession, than on the Veteran's lay statements. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for lumbar discogenic disease, to include as secondary to service-connected right knee impairment, post operative, and/or service-connected lumbar paravertebral myositis. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of probative evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for lumbar discogenic disease is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs