Citation Nr: 1136846 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 09-00 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of low back injury, to include as secondary to service-connected bilateral ankle disabilities, bilateral plantar fasciitis, and gout. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1994 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the Veteran's claim. In December 2010, the Veteran presented sworn testimony during a personal hearing in Portland, Oregon, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a March 2011 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in an August 2011 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The competent medical evidence of record shows that the Veteran is currently diagnosed with degenerative disc disease/degenerative joint disease with L5-S1 right radiculopathy. 2. The competent medical and other evidence of record serves to establish the presence of low back symptomatology during military service and continuity of such symptomatology since service. CONCLUSION OF LAW The Veteran's currently diagnosed degenerative disc disease/degenerative joint disease with L5-S1 right radiculopathy was incurred in military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for residuals of a low back injury, which he contends was incurred in and/or aggravated by his military service. The Veteran has alternately contended that his low back disability is due to his service-connected bilateral ankle disabilities, bilateral plantar fasciitis, and gout. See, e.g., the December 2010 Board hearing transcript. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. Stegall concerns In March 2011, the Board remanded the case in order for VBA to obtain outstanding VA and private treatment records. The Veteran was also to be scheduled for a VA examination as to his pending claim. The claim was then to be readjudicated. A review of the record demonstrates that the outstanding VA treatment records were obtained and associated with the claims folder. Additionally, the Veteran was afforded a VA examination with medical nexus opinion in May 2011. The record further indicates that in an April 2011 letter, the AMC requested the Veteran to "[c]omplete and return an enclosed VA Form 21-4142...for each healthcare provider so that we can obtain treatment information." However, the Veteran failed to respond to the April 2011 letter and the AMC was unable to request the private treatment records identified by the March 2011 Board remand. As indicated above, a SSOC was issued in August 2011. Accordingly, the Board finds that the development directed in the prior remand has been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that substantial compliance, not absolute compliance, is required); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his service connection claim in May 2007. The Board need not, however, discuss the sufficiency of either the VCAA notice letter or VA's development of the claim in light of the fact that the Board is granting said claim. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefits sought on appeal. The Board observes that all due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative and, as indicated above, testified at a personal hearing before the undersigned. Accordingly, the Board will proceed to a decision. Relevant law and regulations Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when they are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. § 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). Analysis The Veteran has asserted entitlement to service connection for a low back disability on both direct and secondary bases. Accordingly, the Board will address the issue on both theories of entitlement. As to Shedden/Wallin element (1), the medical evidence of record demonstrates that the Veteran is currently diagnosed with degenerative disc disease/degenerative joint disease (DDD/DJD) of the lumbar spine with right L5-S1 radiculopathy. See, e.g., the VA examination report dated May 2011. Accordingly, Shedden/Wallin element (1) is satisfied. With respect to Shedden element (2), in-service disease or injury, the Board recognizes that an April 1997 service treatment record documented the Veteran's complaint of "back pain [for] one day . . . Think it might have started from lifting equipment." Subsequent service treatment records dated in May 1997 showed continuing complaints of low back pain and a diagnosis of "rhomboid/paraspinal strain." Accordingly, the Board finds that element (2) is met to that extent. The Board notes, however, that the Veteran's service treatment records are pertinently negative for any diagnosis of DDD/DJD during service. Moreover, there is no documented diagnosis of degenerative disease within the one year presumptive period after service. Although the Veteran complained of back pain with radiation in September 1997 (see the private treatment record dated September 1997), the earliest low back diagnosis of record was indicated until 1999. See the Board hearing transcript, pgs. 4-6. As such, the presumption set forth in 38 C.F.R. § 3.309(a) is not for application. With respect to Wallin element (2), it is undisputed that the Veteran is currently service-connected for bilateral ankle disabilities, bilateral plantar fasciitis, and gout. As such, Wallin element (2) is also met. The remaining question is whether there is a link between the current lumbar spine disability and the Veteran's military service and/or his service-connected disabilities. Critically, there is conflicting medical evidence of record concerning the issue of medical nexus. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Pursuant to the March 2011 Board Remand, the Veteran was afforded a VA examination in May 2011 as to his pending claim. Specifically, as to the issue of direct service connection, the May 2011 VA examiner interviewed and examined the Veteran, reviewed the Veteran's complete claims folder including service treatment records, and concluded that the lumbar spine disability "is not caused by or a result of [the] Veteran's military activity/service." He explained, "[n]o chronic lumbar spine condition or DDD/DJD [of the] lumbar spine with L5-S1 radiculopathy was diagnosed while in service. Nothing in the service medical records supports such a diagnosis. No such diagnosis was made, medical evidence documented, which identifies or supports such a diagnosis prior to 1999." As to the issue of secondary service connection, the May 2011 VA examiner further opined, "DDD/DJD [of the] lumbar spine with L5-S1 radiculopathy is not caused by or a result of service-connected bilateral foot disorder, gout, effecting primarily ankle and feet, plantar fasciitis, sesamoiditis in service, service-connected bilateral ankle disorder, bad sprain in service." The examiner explained, "[n]one of these conditions primarily causes DDD/DJD of the lumbar spine with L5-S1 right radiculopathy. While it is possible that these conditions could secondarily cause low back problems due to chronic marked derangement of the gait, no chronic, marked derange[ment] of gait is medically documented prior to diagnosis of DDD/DJD [of the] lumbar spine with radiculopathy." The May 2011 VA examination appears to have been based upon review of the record and thoughtful analysis of the Veteran's history. However, the Board observes that the examiner failed to discuss the private treatment records which documented the Veteran's complaints of low back pain and sciatica only months after the Veteran's military discharge. C.f., Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Although the Board does not disagree with the VA examiner concerning the absence of a diagnosis of degenerative disc disease until 1999, the Board finds that after reviewing the claims folder, service connection may be granted based on continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2010). The Veteran has argued that he experienced low back pain with radiculopathy following his in-service low back injury which has continued since his discharge. See, e.g., the December 2010 Board hearing transcript. The Board has no reason to disbelieve the Veteran's contentions. As indicated above, while the Board notes that laypersons without medical training are not qualified to render medical opinions regarding matters such as diagnosis, onset, and etiology of disease, which call for specialized medical knowledge, they are allowed to report on observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), cf. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Moreover, the Veteran's statements concerning continuity of symptomatology are somewhat corroborated by the evidence of record. A review of the claims folder demonstrates that in September 1997 the Veteran was treated for complaints of low back pain as well as "[p]ain [that] shoots into left leg." He was subsequently diagnosed with left side sciatica. See the private treatment record dated September 1997. VA treatment records document the Veteran's treatment for mechanical low back pain and altered gait in March 1999. Additionally, the record shows that in 1999/2000 the Veteran had surgery to relieve bulging discs at L4-5 and L5-S1. See the December 2010 Board hearing transcript; see also the VA examination report dated May 2007 and the VA treatment record dated July 2004. The Veteran's continuing complaints of low back symptomatology as well as continuing diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine with radiculopathy are shown in the Veteran's medical records. See, e.g., the VA treatment records dated July 2004, September 2004, June 2006, and October 2007. Under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Resolving all doubt in the Veteran's favor, the Board finds that the evidence illustrates that the Veteran has suffered from chronic residuals of a low back injury during service and continuing after his military service discharge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Continuity of symptomatology is therefore established. The benefits sought on appeal are accordingly allowed. ORDER Entitlement to service connection for residuals of a low back injury is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs