Citation Nr: 1209830 Decision Date: 03/15/12 Archive Date: 03/28/12 DOCKET NO. 99-04 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Dr. Craig Bash ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has a protracted procedural history with multiple remands from the Board and the United States Court of Appeals for Veterans Claims (Court). In the April 1998 rating decision on appeal, the RO declined to reopen a claim for service connection for a low back disorder. The Veteran appealed that rating decision to the Board. In April 2003, the Board denied the Veteran's application to reopen his claim for service connection for a low back disability. In an August 2003 unopposed motion to the Court, VA asked the Court to vacate the April 2003 Board decision and remand the case to allow for additional VCAA notice to be sent to the Veteran. In an October 2003 Order, the Court vacated the Board's April 2003 decision and remanded the case to the Board. In February 2005, the Veteran's attorney and a witness on his behalf (Dr. Bash) appeared before a Veterans Law Judge at a hearing held in Washington, D.C. A transcript of the hearing is of record. In a March 2005 decision, the Board determined that new and material evidence had been submitted and thus reopened and remanded the claim for further development. In August 2007, the Board denied service connection for a low back disorder on the merits. The Veteran appealed that decision to the Court. In a February 2009 Joint Motion for Remand (JMR), the parties (appellant and VA) asked the Court to vacate the August 2007 Board decision and remand the case. In a February 2009 Order, the Court granted the motion and the case was subsequently returned to the Board. In April 2009 and June 2010, the Board remanded the case to allow for additional evidentiary development. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine with bilateral sciatica is related to military service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor degenerative disc disease, L4-L5 with chronic lumbar strain, and degenerative joint disease of the lumbosacral spine with bilateral sciatica was incurred as a result of service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The grant of service connection for degenerative disc disease and degenerative joint disease of the lumbosacral spine, L4-L5 constitutes a full grant of the benefits sought. As such, no discussion of VA's duty to notify or assist is necessary. The Veteran contends, in essence, that service connection is warranted because he has a current back disability that had its onset in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service treatment records are not available. Certification from the National Personnel Records Center (NPRC) in St. Louis, Missouri, reflects that the Veteran's service treatment records may have been destroyed in a fire at that facility in 1973. The results of a search from NPRC in April 1991 show that the Veteran's physical and dental examinations could not be reconstructed, and a search by surgeon general's office was negative. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Given the discussion below, the Board concludes the VA's heightened duty to assist the Veteran, to explain findings and conclusions, and to consider the benefit-of-the-doubt rule, is satisfied in this case. After a review of the cumulative evidence, the Board finds that the evidence is in equipoise as to whether a current a low back disability is related to military service. In reaching this conclusion, the Board first finds that a current low back disability has been established. Reports from VA examinations conducted in May 2006, August 2009, and January 2011 show low back diagnoses of degenerative joint disease, degenerative disc disease, L4-5 with chronic lumbar strain. Next, the Board finds that although service treatment records are missing, the Veteran has clearly and consistently reported that he injured his back during service in May 1957. In addition, the record contains several lay statements that corroborate his testimony as to when his injury occurred, the nature of the injury, and his contemporaneous treatment. In an undated statement received from the Veteran's ex-wife (A. C.) in February 1979, she reported that she met the Veteran in January 1958 and around that time he related a history of a back injury in service. In a March 1979 statement, E. O., a former service member, indicated that he had actually witnessed the Veteran injure his back during service. In another March 1979 statement, the Veteran's parents reported that he had been hospitalized in 1957 due to his back injury. Finally, in a September 1994 statement, O. L. reported that he had served with the Veteran and had witnessed him injure his lower back while lifting a beam. Resolving reasonable doubt in the Veteran's favor, the Board concedes the incurrence of a back injury in service. As a current low back disability and an in-service injury have been established, the only remaining requirement is a causal nexus between the two. The Board first finds that degenerative joint disease of the lumbosacral spine may not be presumed to have been incurred in service as it was not shown to have been manifested to a compensable degree within one year of discharge. The Veteran separated from service in 1958 and there is no evidence of a compensable degree of degenerative joint disease until many years after service. See 38 C.F.R. § 3.307, 3.309. Indeed, the record does not reflect a low back diagnosis until 1971, more than 20 years after the reported in-service injury. Next, the Veteran has provided a competent report of a continuity of low back symptoms since service to support a finding of causal nexus. He also submitted evidence to corroborate his testimony. As noted, a report of continuity may be sufficient to establish a causal nexus in certain cases. In the February 1979 statement from the Veteran's wife, she reported that the Veteran had experienced back problems since January 1958. Also, in statements received in April 1990 and July 1993, Dr. Sanchez, a private physician, reported that he treated the Veteran for approximately one year, beginning around 1958, for low back pain. In an October 1990 statement, Dr. Berrios Ortiz, another private physician, reported that he saw the Veteran for a painful back between 1960 and 1962 and then the Veteran moved to the U.S. Dr. Ortiz indicated that the Veteran returned for care in 1968 with signs of herniated nucleus pulposus (HNP), L4-L5 on x-ray. The Veteran later returned for care in 1970. Private records from Dr. Ortiz in the claims file reflect treatment for low back problems from 1960 to 1962 and in 1970, but contain no diagnoses related to a back disorder. The statements from the Veteran's wife and Drs. Ortiz and Sanchez corroborate his report of continuity of low back symptoms. Nonetheless, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In February 2005 Dr. Bash, a private clinician, indicated that he had reviewed the Veteran's claims file. He stated moderate narrowing of the lumbosacral spine was observed in the Veteran's 1978 x-rays and that such narrowing was radiographically consistent with a chronic long term degenerative process. He concluded that the Veteran's current spine disease was caused by his in-service spine injury and had he not had his in-service injury, his subsequent spine injuries would not have been as severe following the 1967 accident. He concluded that the Veteran was totally and permanently disabled due to his spine disease. Dr. Bash also testified on the Veteran's behalf at a February 2005 hearing. Dr. Bash reported that he was board-certified in radiology and a senior member of the Neuroradiology Society. He stated that he had experience reading x-rays and MRI's, and had worked for the Paralyzed Veterans of America for three years, as well as in hospitals, and reviewed patients' records and patients for disability issues. Dr. Bash acknowledged that the Veteran was involved in accidents in 1967 and 1975 and testified that he thought it was likely that the Veteran current back disability was related to service; that the Veteran's 1956 in-service back injury increased his risk of problems from the following accidents; and that the Veteran was disabled from the back injury and unable to work. Dr. Bash further explained that a medical examination report from 1975 by an orthopedic surgeon showed normal x-ray and positive examination results of the spine. He indicated that the medical exam was positive in the same area where he would suspect the Veteran had his injury in 1956 and was consistent with the same problem that he had. Dr. Bash noted that the examination report indicated the Veteran was walking with a cane and had a limp. He then explained that the Veteran has had weakness in his legs, sensory problems, and paresthesias consistently throughout the years and that kind of a problem is consistent with the 1978 x-ray that showed moderate narrowing, herniated discs or degenerative disc disease at the L4-5. Dr. Bash further explained that oftentimes, a person will damage their ligaments and the ligaments get weak and then that person is set up for future injuries to their spine. He noted that in the Veteran's case, he has had repeated injuries at the same level at multiple times over the years. While Dr. Bash's opinion and testimony support a finding of causal nexus, the Board notes that its persuasiveness is somewhat diminished by his failure to discuss the absence of any clinically identified back disorder prior to the 1967 severe automobile accident (See, the October 1990 statement from Dr. Ortiz indicating that the Veteran returned for care in 1968 with signs of HNP, L4-5; see also, the July 1971 Bureau of Disability Determination examination report indicating central disc herniation at L4-5), or contain adequate discussion of any clinical records in the claims file prior to 1975 - which is many years after service and after two post-service civilian back injuries in 1964 and 1967. Dr. Bash's opinion and testimony also fail to discuss the Veteran's post-service medical history as documented in the administrative and medical records promulgated in connection with the Veteran's 1971 claims for Social Security Administration (SSA) and Ohio Industrial Commission (OIC) disability benefits related to his back. These records further reflect the Veteran routinely engaged in strenuous physical activities on a regular basis for several years after service, pursuant to his civilian employment duties. Indeed, on the Veteran's disability applications he self-reported that while working as a delivery truck driver from 1958 to 1967, his duties included routinely lifting up to 100 pounds (lbs), carrying items up to 100 lbs, pushing items up to 500 lbs, and often walking, climbing, bending, stooping, kneeling. Also on his application forms, and during the course of medical examinations, he repeatedly reported that he became unable to work following a severe back injury in 1967 when he was rear-ended by a semi-trailer and thrown out of his truck, landed on his back on the sidewalk, and fractured his right leg and foot. These omissions in Dr. Bash's analysis suggest a less than comprehensive review of the claims and perhaps a less than thorough consideration of all the pertinent evidence. The Veteran was afforded a VA spine examination in May 2006. Following physical examination and review of the claims file, the examiner provided a diagnosis of mild degenerative disc disease L4-5 with chronic lumbar strain. The examiner opined that the Veteran's lumbar spine disability was not related to a back injury during service. The rationale was that there was no mention of treatment of a back injury in service and there also was multiple documentation of treatment for degenerative disc disease L4-5 related to two injuries in 1964 and 1967, both of which were after service. However, as noted in the parties' February 2009 JMR, this opinion is inadequate and not probative. An April 2009 VA treatment note shows the Veteran reported chronic low back pain with a history of back injury while working on a bridge in service, to his VA staff physician. The VA staff physician opined that it is more likely than not that the Veteran's lumbar spine disability is related to the injury to his back while he was in the service. In April 2009, Dr. Nazario, a private physician, stated that he had reviewed the Veteran's history and clinical examination. He noted that the Veteran was hurt in service while lifting heavy equipment and had back pain since then. Dr. Nazario stated that his injury during service caused his problem. The Veteran was afforded another VA examination in August 2009. The examiner opined that it was less likely than not that his current disability was related to an injury sustained in service. The examiner reasoned that there was no evidence to support chronicity, since medical treatment records start almost 20 years after the reported injury, and therefore it was most likely that any in-service injury resolved prior to his discharge from service. The examiner, however, disregarded the Veteran's lay evidence of continuity of symptomatology. He also failed to address the clinical significance of the post-service back injuries and the contrary evidence of record, including the 2005 independent medical examination report and testimony of Dr. Bash. Thus, this opinion is also inadequate and not probative. The claim was thereafter remanded by the Board in June 2010 with instructions to provide the Veteran with yet another VA examination that specifically included consideration of: the fact that the Board conceded the Veteran sustained in service in May 1957; the Veteran's reported continuity of symptomatology since service; the clinical significance of the post-service back injuries in 1964 and 1967 as they relate to the current disability; and all contrary evidence, particularly the February 2005 opinion and testimony of Dr. Bash. The Veteran was afforded another VA examination in January 2011. The examiner reviewed the evidence in the claims file, conducted a personal interview of the Veteran and provided a detailed description of the Veteran's pertinent history in the examination report. The examiner specifically noted that he had not dismissed the Veteran's history of an in-service back injury due to the lack of medical records or any other reason. The examiner also specifically acknowledged the Veteran's report of a continuity of symptoms since service. In addition to the detailed description of the Veteran's pertinent history, the examiner provided a synopsis of what he believed were additional significant historical events. He detailed several reports of disability examinations from the OIC and private physicians that evaluated and/or treated the Veteran after his 1967 MVA and noted that no of these reports contained any mention of a pre-existing spinal low back condition prior to his civilian car accidents. Following an extensive clinical examination, the examiner diagnosed degenerative joint disease and degenerative disc disease, lumbar spine with bilateral sciatica. The examiner opined that these conditions are less likely as not caused by or a result of the in-service low back injury or condition. The rationale was that multiple documents in the claims file relating to his multiple, disabling motor vehicle accidents in the 1960s are compelling. These documents include numerous professional and medical evaluations which indicated one or more back injuries in the 1960s, and also include a handwritten entry (from the Veteran) reporting the back condition first began on September 5, 1967. The examiner stated that if there had been a pre-existing back low back condition prior to those auto accidents, it would have been reported somewhere in those multiple disability examination. He also noted that a document in the claims file, which appeared to be a description of the Veteran's work duties from 1964-1967, describes lifting, carrying, and pushing heavy objects. This would appear to be inconsistent with a chronic back condition persisting since the Veteran's active duty in the 1950's. Finally, the examiner stated that the assumptions and opinions of Dr. Bash were respectfully considered but in his opinion, Dr. Bash's assumptions and opinions are superseded by the multiple documents in the claims file as discussed above. The Board finds that the January 2011 VA examination and opinion is adequate for evaluation purposes and reflects compliance with the Board's remand directives because the examiner conducted a physical examination, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board further finds that the opinions of Dr. Bash and the January 2011 VA are both competent and probative as the question of causal nexus in this case as they are definitive, based on their respective medical experience and expertise as a board-certified radiologist and board-certified physician, their review of medical literature, and their review of the Veteran's claims file. Further, each clinician supported their opinion with a clear and well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). These two opinions place the evidence of a causal nexus between the in-service low back injury and the current low back disorders in relative equipoise. The statutory provisions regarding resolution of reasonable doubt is applicable and a favorable outcome is warranted. 38 U.S.C.A. § 5107(b). Based on the evidence corroborating a low back injury in service, the Veteran's credible report of a continued low back pain since that injury and witness statements attesting to the Veteran's difficulties with low back pain after service and prior to two post-service work-related injuries, and the medical opinions of Dr. Bash and the January 2011 VA examiner, the Board resolves any doubt in the Veteran's favor to find that service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine with bilateral sciatica is warranted. ORDER Resolving all reasonable doubt in the Veteran's favor, service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs