Citation Nr: 1300708 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-12 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to May 1977. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO). FINDINGS OF FACT 1. The evidence of record shows that the Veteran's low back disorder was not noted on clinical examination at the time of service entrance. 2. Clear and unmistakable evidence demonstrates that a low back disorder existed at the time of the Veteran's entrance into active military service. 3. Clear and unmistakable evidence demonstrates that the Veteran's preexisting low back disorder was not permanently aggravated beyond normal progression by active service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1111, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements apply to all five 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. The RO's December 2006 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's December 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and identified and available VA and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's April 2012 remand, VA obtained a new medical opinion in April 2012 to determine the etiology of the Veteran's low back disorder. See 38 C.F.R § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA examination obtained was based upon a complete review of the Veteran's claims file, and with consideration of the Veteran's statements. Additionally, the VA examiner provided a written rationale for the conclusion reached and the Board therefore concludes that this examination was adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the foregoing, the Board finds that there has been substantial compliance with its April 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that 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. The Veteran should 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) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). In various written statements, the Veteran reported that between February and March 1977, he sustained a back injury during training maneuvers when riding in a troop carrier vehicle which drove off a drop at Camp Pendleton in California. The Veteran contends that although he hurt his back as a young boy he did not experience any back problem through his adolescence prior to service. He also contends that the inservice physician who examined him failed to document the vehicle accident during training that caused the claimed back injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The Veteran's June 1976 service entrance examination report noted no abnormalities for the spine and other musculoskeletal system. In the report of medical history, the Veteran denied "recurrent back pain." A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). In a January 1977 service treatment report, the Veteran complained of low back pain that existed prior to enlistment. He stated that the pain got worse while doing heavy lifting and that prior to service he was seen by a chiropractor who told the Veteran that he had a disk out of position. He reported that his low back problem dated back to when he fell out of a tree at age of five years and that he had more problems at age of 13. He also reported that he saw a chiropractor regularly for two years before his enlistment into service. A March 1977 inservice orthopedic consultation report noted that following seven months of active duty, the Veteran reported a long history of chronic low back pain dating to age five years. The Veteran reported that he fell out of a tree and had numerous visits to doctors prior to enlistment. The diagnosis was spondylolisthesis at the L5-S1 level that existed prior to enlistment. An April 1977 Medical Board report stated that the Veteran enlisted in July 1976 and after enlistment, the Veteran reported persistent low back pain after prolonged marching, lifting heavy objects, or prolonged standing. It was noted that the Veteran had been evaluated at his dispensary on numerous occasions and was referred to the Medical Board. The Medical Board stated that the Veteran had no history of injury while on active duty. On physical examination, the Veteran had a normal range of motion of the back and no neurological deficit in any extremity; however, x-ray of the lumbosacral spine demonstrated a congenital Grade I spondylolisthesis, anterior, of the body of L5 on the body of S1. The Medical Board opined that the Veteran was unfit for full duty as he did not meet the minimum standards for enlistment by reason of physical disability and that this disability was neither incurred in, nor aggravated by, a period of active military service. A medical discharge from military service was recommended. After separation from service, treatment records from a private chiropractor show that the Veteran received intermittent treatment for low back pain from November 2004 through September 2006. In a September 2007 written submission, the Veteran's parents stated that after the Veteran entered the U.S. Marine Corps in July 1976, he called home in March 1977 to tell them that he had hurt his back while in training and that he was going to get a medical discharge soon. The Veteran was afforded a VA spine examination in April 2008. The VA examiner stated that the Veteran was the primary source of information although the Veteran's medical records and claims file were available and reviewed. The examiner also stated that the Veteran was a reliable historian. After reviewing all service treatment reports pertaining to the Veteran's low back pain, the examiner noted that the Veteran did not report a history of injury to the lumbar spine at age of five years on enlistment examination and that no injury was reported while in service. The Veteran reported lumbar pain, which radiated down the posterior aspect of the left gluteal, thigh, and leg, ending at the left foot. He reported no history of surgery and that he had received chiropractic treatments. He related that pain started in approximately February 1977 with the inservice injury while in training when he was in a troop carrier vehicle which drove off a drop. He stated that at that time he was told to complete exercises which did not improve the condition. The examiner opined that the Veteran's spondylolisthesis Grade 1, L5-S1 was not a result of active duty nor was aggravated by active duty service. In support of this opinion, the examiner stated [The] [V]eteran failed to indicate on enlistment exam a history of previous low back pain- numerous [service medical records] detail injury to the [V]eteran at age of 5. The [service medical records] note by several providers previous history of low back pain without injury to the lumbar spine while in active duty- is most likely congenital in nature as spondylolisthesis [at] early age is congenital in nature. The examiner included a medical article regarding the causes of back pain in children and adolescents, which stated Spondylolysis is a unilateral or bilateral defect (separation) in the vertebral pars interarticularis, usually in the lower lumbar vertebrae, particularly L5. Spondylolisthesis occurs when bilateral defects permit anterior slippage of the vertebral body. . . . Spondylolysis may be congenital (malformations of the facet joints) but typically is acquired as the bone "fatigues" from recurrent micro trauma during excessive lumbar hyperextension. . . . Spondylolysis manifests as aching low back pain that is exacerbated by lumbar hyperextension but may be asymptomatic. The typical age of presentation is early adolescence. Another VA medical opinion was obtained in April 2012. The VA examiner indicated that the Veteran's claims file was reviewed. After a thorough review of the record and listing all pertinent medical and lay evidence of record, the examiner first opined that the Veteran's current spondylolysis with spondylolisthesis clearly and unmistakably existed prior to active military service. In support of this opinion, the examiner noted that the Veteran clearly knew of this condition on March 10, 1977 when he reported that he had a slipped vertebra because his report was consistent with a Grade I spondylolisthesis, which was shown after one day in the medical record entry indicating that a wet read of x-ray revealed a Grade I spondylolisthesis of L5 on S1. Furthermore, two U.S. Navy corpsmen as well as three U.S. Navy Medical Corps officers/physicians all indicated that at that time, the Veteran reported chronic back pain which began several years prior to service, as early as the 1960s, at the Veteran's age of 5, along with a notation that he fell from a tree at age 5. The examiner further noted that while the most common etiology for spondylolysis in children is a congenital defect, it is also possible that the Veteran had traumatic spondylolisthesis when he fell from a tree at age 5; however stated that "in either case, clearly the condition existed at a very early age many years prior to active duty service." With regard to the issue of aggravation, the examiner noted that the Veteran's contention that he had permanent aggravation of a pre-existing back problem due to injury in service was not substantiated by the service treatment records. The examiner pointed out that although the Veteran alleged that the medical personnel in service had all failed to report the alleged injury/accident, because inservice treatment notes and orthopedic specialist consultation reports prepared by two different Navy corpsmen and three different medical corps officers/physicians all indicated no history of trauma, the available medical records were indicative of only a temporary exacerbation of the preexisting spondylolysis with spondylolisthesis. Furthermore, the examiner explained that when the lumbar spine x-ray done on March 11, 1977, one day after the Veteran had reported he had a slipped vertebra, there was only Grade I spondylolisthesis, which is the lowest Grade of this condition, indicating a 1 to 25 percent slippage of L-5 on S-1. The examiner concluded that the foregoing evidence clearly did not indicate a worsening of the preexisting condition and therefore the evidence did not show aggravation of the preexisting low back condition beyond normal progression. In October 2012, the Veteran expressed his disagreement with the VA's finding that his back condition was not aggravated. He stated that after hurting his back in the alleged "Amtrak" accident, he went to see a doctor at Camp Pendleton and was told that he could not be transferred to a lighter duty position but would be discharged from service in six weeks. He further stated that the doctor never made a notation of how the Veteran hurt his back in service. Upon consideration of all of the evidence of record, the Board finds that clear and unmistakable evidence demonstrates that the Veteran's low back disorder, diagnosed as spondylolisthesis at the L5-S1 level, existed prior to service and clear and unmistakable evidence demonstrates that his pre-existing low back disorder was not aggravated by service. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.304, 3.306. A low back disorder was not shown at the time he was initially examined for service entrance as the clinical examination of the spine was normal and the Veteran denied recurrent back pain. Accordingly, the Veteran is presumed to have been in sound condition. Id. However, the Veteran's own admission as to low back pain that preexisted service following six months into active duty and the contemporaneous medical records associated with the Veteran's service discharge that clearly report the Veteran had spondylolisthesis, which in the opinions of the Medical Evaluation Board existed prior to enlistment, provide clear and unmistakable evidence that his low back disorder pre-existed his military service. Service treatment records reflect that the Veteran's complaints of back pain commenced in January 1977, six months after his entrance into service. At that time, the Veteran reported that for two years prior to his enlistment, he was seen regularly by a chiropractor who told the Veteran that he had a disk out of position. He also reported that his low back problem dated back to when he fell out of a tree at age of five years. The Medical Board report found that the Veteran had a congenital Grade I spondylolisthesis, anteriorly, of the body of L5 on the body of S1, confirmed by x-ray. Furthermore, the April 2012 VA examiner pointed out that the Veteran clearly knew of this condition when he reported a prior history of "slipped vertebra" because it was consistent with Grade I spondylolisthesis of L5 on S1. The April 2008 and April 2012 VA examiners opined that the spondylolysis diagnosed in service was a congenital defect because it is the most common etiology for that condition, the April 2012 VA examiner opined that it is also possible that the Veteran's preexisting spondylolisthesis was due to a trauma when he fell from a tree at age 5. However, the April 2012 examiner concluded that in either case, the condition clearly existed at a very early age many years prior to active duty service. The Veteran contends that although he hurt his back as a young boy he did not experience any back problem through his adolescence prior to his military service and the onset of his low back pain was with the claimed inservice injury in approximately February 1977 when he was involved in a vehicle accident during training. The Board finds that the Veteran's statements are competent evidence of the inservice accident and the onset of his back pain. See Layno v. Brown, 6 Vet. App. 465 (1994) (finding that a lay person is competent to attest to the factual matters of which he or she had first-hand knowledge). However, the competency of an individual to testify, must be distinguished from the credibility of the testimony. The Veteran's statements as to the onset of his low back pain lack credibility as they are inconsistent with the other evidence of record and the Veteran's other statements of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence). Although the Veteran denied recurrent back pain on his enlistment examination, when the Veteran was evaluated for back pain six months into his service, he reported low back pain that existed prior to enlistment for which he was regularly treated by a chiropractor for two years before his enlistment into service. The history of his back pain reported by the Veteran in service was very specific in that he reported that the onset of his back problem was when he fell out of a tree at age of five years and that he had more problems at age of 13. The Board finds significant the inconsistency throughout the record of the Veteran's statements as to the onset of his low back problem. The evidence of record simply does not support the Veteran's contention that he did not have a back disorder prior to service or that he had chronic low back pain only after the claimed inservice vehicle accident during training. The Board also finds clear and unmistakable evidence that the Veteran's preexisting low back disorder was not aggravated by his military service. The findings of the Medical Board made at the time of his service and an examination in service indicated spondylolysis that was congenital in nature and the Medical Board specifically found that this disorder was neither incurred in, nor aggravated by a period of active military service. The April 2008 VA examiner also opined that the Veteran's spondylolisthesis Grade 1 L5-S1 was not a result of active duty nor was aggravated active duty service. This opinion was rendered by a medical professional who is competent to offer an opinion in the matter, and who reviewed the Veteran's service treatment records in detail, as well as his available private medical records, and considered the Veteran's lay statements. The January 2012 Joint Motion for Remand found that this opinion was not adequate because the VA examiner did not explain the basis for the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, the Board finds that the April 2008 VA examiner provided a supporting rationale, because the examiner based on his opinion on the fact that the Veteran's spondylolisthesis Grade 1 L5-S1 was congenital in nature. In a March 2011 informal hearing presentation, the Veteran's representative claims that the April 2008 VA examiner's opinion is too general as it discussed pages and pages of research regarding the causes of back pain in children and adolescents, but did not necessarily apply it to the case in question. The representative also points out the medical article mentioned by the examiner indicates that spondylolysis may be congenital but more typically is acquired as the bone "fatigues" from recurrent micro trauma during excessive lumbar hyperextension. However, the VA examiner did not only discuss generic causes of back pain by referring to the medical article but provided his opinion reflective of the specific facts of the Veteran's case. Despite what was indicated by the medical article, the examiner expressed an opinion that in the Veteran's case, his low back pain was most likely congenital in nature as spondylolisthesis at early age is congenital in nature. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Furthermore, the Board accords significant probative value to the April 2012 VA examiner's opinion because it was based on a very thorough review of both the medical and lay evidence of record and provides a detailed supporting rationale. The April 2012 VA specifically considered the Veteran's contention that the medical personnel in service had all failed to report the alleged injury/accident. However, the examiner concluded that because inservice treatment notes and orthopedic specialist consultation reports prepared by two different Navy corpsmen and three different medical corps officers/physicians all indicated no history of trauma, they were indicative of only a temporary exacerbation of the preexisting spondylolysis with spondylolisthesis. Additionally, the examiner pointed out that the medical evidence at that time of the alleged accident/injury "clearly" did not indicate a worsening of the preexisting condition. To that effect, the examiner noted that the lumbar spine x-ray obtained in March 1977, subsequent to the Veteran's alleged accident/injury, revealed only Grade I spondylolisthesis, which was the lowest grade of this condition indicating a 1 to 25 percent slippage of L-5 on S-1. The Board considered the Veteran's contention that his preexisting low back disorder was aggravated by his military service, as well as his parents' statement that he called them in March 1977 to tell them that he hurt his back while in training. These lay statements are competent evidence as to what the Veteran experienced or what the Veteran told his parents at that time. See Layno, 6 Vet. App. at 469-70. However, the probative value of such statements is questionable as to the issue of whether the alleged injury during service aggravated the Veteran's preexisting back problem beyond normal progression. As noted above, all corpsmen/physicians who evaluated the Veteran's low back problem in service found that the Veteran had no history of injury while on active duty, which indicates that any accident/injury that happened in service was only a temporary exacerbation of the preexisting condition. Moreover, the Board attaches more probative value to the opinion by the VA medical experts, especially the April 2012 VA examiner's opinion, than the lay claims. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (finding in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board finds that ascertaining permanent aggravation of an orthopedic condition, as opposed to a temporary exacerbation, requires special medical training and expertise that these lay person do not have and therefore it is a determination "medical in nature" and not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, since layperson are not capable of opining on matters requiring medical knowledge, the Board finds that the lay claims regarding the preexistence and aggravation of the Veteran's low back condition is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Accordingly, the Board concludes that the presumption of soundness of the Veteran's low back at enlistment is rebutted by clear and unmistakable evidence that a low back disorder existed prior to his entry into service and by clear and unmistakable evidence that a low back disorder was not aggravated by active service. 38 U.S.C.A. §§ 1111, 1113; 38 C.F.R. §§ 3.304, 3.306. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim of entitlement to a low back disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs