Citation Nr: 1237674 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-24 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include spinal stenosis and arthritis of the lumbar spine, to include as secondary to a service-connected pilonidal cyst. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active duty service from March 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the local RO; a transcript of that hearing is associated with the claims file. This case was initially before the Board in May 2010, at which time a claim of service connection for a skin disability was denied. The remaining issues on appeal were remanded for further development. In October 2011, the Board denied service connection for left heel bone cyst and remanded the lumbar spine disorders for further development. The case is now once again before the Board. FINDINGS OF FACT A lumbar spine disorder, to include spinal stenosis and arthritis of the lumbar spine, was not manifested during the Veteran's active duty service or for many years thereafter, is not otherwise related to such service, and is not causally related to or aggravated by the Veteran's service-connected pilonidal cyst. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent a July 2006 pre-adjudication letter that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained all of the service treatment records and identified relevant post-service VA and private treatment records. In May 2010, the Board remanded the claim, in part, to provide the Veteran with a VA examination that included an opinion addressing whether the claimed lumbar spine disorders were directly related to service or were otherwise caused by or aggravated by the service-connected pilonidal cyst. On April 2011 VA examination, the examiner failed to address whether or not arthritis and spinal stenosis were aggravated by the pilonidal cyst. As a result, in October 2011, the claim was remanded to address this deficiency. In a November 2011 addendum to the April 2011 VA examination report, the examiner discussed whether or not the lumbar spine disorders were aggravated by the service-connected pilonidal cyst. Accordingly, there has now been compliance with the prior remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2010) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing, the VLJ identified the issue, sought information as to the onset of the Veteran's symptoms and the treatment he received in order to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Additionally, in a May 2010 and October 2011 remands, the Board sought to obtain outstanding VA treatment records, which have since been associated with the record. As a result of the May 2010 remand orders, in August 2010, the AMC requested records associated with the Veterans Workers' Compensation claim, in which the Ohio Bureau of Workers' Compensation provided a response indicating that the Veteran did not have a claim. In September 2010 correspondence, the Veteran was advised that VA was unable to obtain records from the Bureau of Workers' Compensation and to submit any records in his possession. An October 2010 Memorandum documented the efforts taken by VA to obtain the Workers' Compensation records and reported that further attempts were futile. In a June 2010 statement in support of claim, the Veteran reported that the hospitals in which he underwent his 1983 and 1993 surgeries were now closed. In July 2010 and October 2011 correspondence, the Veteran was advised to complete a VA Form 21-4142, Authorization and Consent to Release Information, for each non-VA provider from whom he received treatment or to submit the records himself. The July 2010 correspondence specifically requested records or a completed VA Form 21-4142 regarding treatment for low back pain in 1972 and surgery performed in 1983. The Veteran has not since submitted any private treatment records or authorizations for release of medical records regarding treatment for a lumbar spine disorder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready for appellate consideration. II. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 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 VA 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), 3.307, 3.309. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board also notes that a revised version of 38 C.F.R. § 3.310 became effective October 10, 2006. The amended version essentially provides that VA will not concede aggravation of a nonservice-connected disease or injury by a service-connected disease or injury unless the baseline level of severity is established by medical evidence. The regulation further sets out the procedure for determining the extent of any aggravation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran here claims that he injured his tailbone in service as a result of an injury from fall during a training exercise. He contends that subsequently, a cyst developed on his tailbone that ruptured and the fluid was absorbed by his body. He reports that he read an article years later that indicated that ruptured cysts that are absorbed by the body settle in the spine, joints, and hips. He, therefore, believes that the ruptured cyst caused his spinal stenosis and arthritis. He also reported that he slipped and fell while building bunkers in service. See March 2006 claim, August 2006 and June 2007 statements, and March 2010 hearing transcript. During his March 2010 hearing, he added that he believed that his current back disorder was connected to him falling in service in which he may have damaged his tailbone in addition to developing a cyst. Service treatment records, including January 1968 pre-induction and December 1969 separation reports of medical history and examination are negative for any complaints, treatment, or diagnoses relating to a lumbar spine disorder, including arthritis. An August 1968 record revealed that the Veteran was treated for a pilonidal cyst. The record showed that the cyst was not painful, but as the Veteran was reluctant about having it opened, he would try to soak it. Post-service treatment records include clinical reports dated from 1990 to 2000 from Dr. E.C. A February 1990 treatment record noted a history of back pain with L4 disc herniation. A January 1991 treatment record included a diagnosis of L4, L5 internal derangement secondary to lumbar spine extension dysfunction. A February 1992 X-ray report revealed degenerative disc disease (DDD) at the L4 and L5 levels. A June 1993 MRI report included an impression of disc herniation posteriorly and to the right at the L4 level; scarring related to the right L5 nerve root; and hypertrophic changes in the posterior elements at the L5 level with resulting canal stenosis side to side. In December 1994, the Veteran was at work and fell approximately five or six feet off of a scaffold. X-rays of the lumbar spine revealed severe DDD. A September 1998 treatment record from Erie VA Medical Center (VAMC) revealed a history of chronic low back pain from more than 25 years, status post discectomy and laminotomy times two, once in 1983 and the second time in 1993. On February 2007 VA examination, a medical history included chronic back pain with degenerative arthritis, possible lumber stenosis/myopathy. The record noted that the Veteran has had low back pain since a work-related trauma in 1972 with a diagnosis of a herniated disk. The Veteran filed a Workers' Compensation claim. He also had a reported fall on his tailbone in 1978. The record revealed that only a scar remained as a residual of the pilonidal cyst. An April 2007 MRI revealed L3-L4 moderate to severe spinal canal stenosis secondary to mild grade I spondylolisthesis, small posterior disc bulge, facet arthropathy, and thickened ligamentum flavum. At L5-S1, there was moderate to severe left neural foraminal stenosis and moderate right neural foraminal narrowing secondary to disc degeneration and posterior left paracentral disc herniation/extrusion impinging on the left traversing S1 nerve root. A July 2009 record included a present illness of spinal stenosis/spondylolisthesis of the lumbar spine and lumbar DDD. In light of the above, a current diagnosis of the lumbar spine, to include spinal stenosis and arthritis of the lumbar spine, has been demonstrated. Initially, the Board observes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Starting first with presumptive service connection, the Board notes that, although degenerative changes have been observed, there is no evidence of arthritis within one year of service. Therefore, an award of service connection on a presumptive basis for chronic disease is precluded. 38 C.F.R. §§ 3.307, 3.309. The Board will now consider a direct theory of entitlement. In this case, while there is evidence of a pilonidal cyst in service, for which service connection has already been granted. However, there is no medical evidence of treatment or a diagnosis of a lumbar disorder in service. Further, there is no competent medical evidence linking any lumbar disorder to active service. The Veteran was afforded a VA examination in July 2010. At that time, he reported that low back pain began in service due to a fall in 1968 and that the pain was continuous. Based in part on the fact that the discharge examination did not reveal any low back problems or treatment for a low back problem, the examiner concluded that the Veteran's lumbar stenosis was not related to service. On April 2011 VA examination, the Veteran reported an onset of lumbar spine stenosis and arthritis in 1973. The examiner also found that the Veteran's pilonidal cyst had not returned since the original episode in 1968. The examiner reviewed the Veteran's claims file, summarized the medical history, and after examination, opined that the Veteran's arthritis and spinal stenosis of the lumbar region were less likely as not (less than 50/50 probability) caused by or a result of his time in the service or his diagnosis of pilonidal cyst. The examiner reasoned that it appeared from the available data that the Veteran's low back pain started with the work injury in 1973 and that the low back was not a problem while on active duty or after the falling episode during boot camp. The examiner added that the falling episode seemed to be related to the lump or what had been called the pilonidal cyst. The examiner also reported that the Veteran's diagnosis of lumbar arthritis and spinal stenosis were related issues. He explained that one could have lumbar arthritis without spinal stenosis and spinal stenosis without arthritis, but the two were frequently found together. Spinal stenosis was simply a narrowing of the central column of the spine when the spinal cord traverses. One could be born with this or it developed over time. The examiner found that it was most likely that after the Veteran's back injury at work (in 1973), he had problems with the bones and discs in the low back that eventually worsened and required two back surgeries. The Veteran's back injuries, surgeries, and wear and tear of 30-40 years promoted arthritis in the lumbar spine. The examiner stated that spinal stenosis could be due to several reasons, but in this case it was likely due to his injury, disc conditions, surgery, and aging along with arthritis. The examiner added that without firmer evidence of a lumbar problem while in the service, it remained more likely that the work injury, surgeries, and time were the main cause of the arthritis and spinal stenosis. The Board has considered the Veteran's reports of falling on his tailbone at least twice in-service and his beliefs that that his current lumbar spine disorders were related to these events, or otherwise related to service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While the file lacks competent evidence relating a current lumbar spine disorder to active service, the Board notes that service connection could still be established on a direct basis upon a showing of continuity of symptomatology. On this point, the Board finds it significant that the first post-service documentation of a lumbar disorder dates back as early as 1972 as a result of an on-the-job back injury in which the Veteran filed a claim for Workers' Compensation. This was approximately three years after service. Thus there is no supporting medical evidence of a continuity of pertinent symptomatology based on documented treatment. In this regard, a lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the Veteran's own statements that his lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. In this case, despite his prior assertions that his lumbar spine disorders were secondary to his service-connected pilonidal cyst, at his July 2010 VA examination, the Veteran reported that low back pain began in service due to a fall in 1968 and that the pain was continuous. However, the Board does not find his statements of continuous low back symptomatology to be credible here, for the reasons set forth below. The service treatment records are silent with respect to any complaints of lumbar spine pain. However, these records do document treatment for other unrelated disorders. Moreover, the Veteran's December 1969 discharge service examination showed a normal spine, and no complaints were noted at that time. In fact, the Veteran expressly denied any back problems on his separation report of medical history. Furthermore, in a June 2006 statement, the Veteran reported that his back pain began in 1971. On February 2007 VA examination, the examiner reported the Veteran's history as having low back pain since a work-related trauma in 1972 with a diagnosis of a herniated disk. During his March 2010 hearing, the Veteran indicated that he first began treating his arthritis in the 1970s. On April 2011 VA examination, he reported an onset of lumbar spine stenosis and arthritis in 1973. As noted above, the first evidence of any complaints with respect to the lumbar spine is from 1972, approximately three years after his discharge from active duty service. Moreover, his initial claim for the lumbar spine disorders filed in March 2006 and his subsequent statements related his lumbar spine disorders to his pilonidal cyst and gave no mention of continuous lumbar symptomatology since service. His first mention of back pain in service was at his March 2010 hearing. Given the above inconsistencies in the Veteran's statements of record, the Board must find that he is not a reliable historian, and, in turn, cannot be deemed credible with respect to his testimony on the subject of continuity of symptoms dating back to service. For the above reasons then, service connection on a direct basis must fail. The Board will now consider whether the claim may be allowed on a secondary basis. In regard to secondary service connection, on April 2011 VA examination, the examiner reported that pilonidal cysts are located in the cleft between the buttocks, near the tail bone, and not near the lumbar portion of the back, which was several inches away. The examiner opined that it was very medically unlikely that a pilonidal cyst would have any relationship to lumbar arthritis or spinal stenosis. The examiner clarified that a pilonidal cyst was not caused by trauma or falling, but rather was an infection that usually did not go away on its own and frequently was a recurring problem. The examiner acknowledged the Veteran's belief that the cyst ruptured and added that this would result in a significant infection going inward. The examiner explained that a ruptured cyst would most likely cause a serious problem that would likely have caused the Veteran to become very ill and have to be hospitalized for several days or longer for antibiotics. The examiner noted that this did not appear to be the case in this Veteran's history. The examiner explored the possibility that perhaps the "lump" was not a pilonidal cyst, but rather a hematoma from falling. In this scenario, the sore lump would last for a few weeks and slowly resolve. This was not an infection and would appear to be resolved internally. The examiner opined that unfortunately, for this Veteran, this also would have nothing to do medically with the lumbar arthritis or spinal stenosis. The Board determined in an October 2011 remand that the examiner's failed to address the issue of whether the pilonidal cyst aggravated the lumbar spine disorder. Thus, the claims file was submitted to the same VA examiner who performed the April 2011 VA examination to address the issue of aggravation. In a November 2011 medical addendum to the April 2011 VA examination, the examiner opined that the Veteran's claimed condition of a lumbar spine disorder, to include spinal stenosis and arthritis, was less likely than not proximately due to or the result of the service-connected pilonidal cyst. The examiner explained that the Veteran's service-connected pilonidal cyst condition from the 1960s had nothing to do with his lumbar stenosis or arthritis. There was no cause or effect and no aggravation of the back condition. The examiner noted that there was only one time that the service-connected pilonidal cyst condition was active, and this was in the 1960s. The examiner added that there has been no recurrence of this condition and that the pilonidal cyst condition resolved in the 1960s. The examiner further reasoned that since the pilonidal cyst came resolved in the 1960s, there was no way it could aggravate a condition that occurred later. In addition there would be no medically likely way that the pilonidal cyst would aggravate this kind of spine condition (arthritis and spinal stenosis). The April 2011 examination report with the November 2011 addendum sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination to be sufficient for appellate review and of high probative value. Moreover, no other evidence of record refutes the examiner's opinion. The Board has also considered the Veteran's belief that his lumbar spine disorders are due to his service-connected pilonidal cysts. However, while he can report observable symptoms pertaining to the lumbar spine, given that the Veteran does not have any special medical expertise, the Board must find that he is not competent to give a medical opinion as to whether his lumbar spine disorders are secondary to his service-connected pilonidal cysts. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). In conclusion, a preponderance of the evidence is against the claim for service connection for lumbar spine disorders, to include lumbar stenosis and arthritis of the lumbar spine under a direct and secondary basis. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a lumbar spine disorder, to include spinal stenosis and arthritis of the lumbar spine is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs