Citation Nr: 1301643 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 03-34 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to a service-connected Morton's neuroma on the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from May 1987 to October 1987, and August 1990 to December 1990. The Veteran served on periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the U.S. Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, FL, which declined to reopen a previously denied claim of service connection for a low back disability. In a July 2006 decision, the Board appears to have accepted a subsequent reopening of the claim by the RO, and considered the issue on the merits. In July 2006, November 2009, and August 2011, the Board remanded the issue for additional development. Also in the July 2006 Board decision, an appeal for increased evaluation for a service-connected left foot disability was denied; this decision is final. The Board has additionally repeatedly remanded a claim of service connection for a gastrointestinal disorder for development, most recently in August 2011. During the processing of that remand, service connection for a hiatal hernia was granted in an August 2012 rating decision. This represents a full grant of the benefit sought on appeal; there is no indication in the claims folder or the electronic records maintained as part of the Virtual VA system that the Veteran has disputed any aspect of that determination. With regard to both the left foot and gastrointestinal disorders, no further questions remain for consideration by the Board. FINDINGS OF FACT 1. The Veteran complained of lower back pain in June 1993, during a period of INACDUTRA. 2. The preponderance of the evidence of record is against a finding that any currently diagnosed low back disorder was caused or aggravated by military service or any service connected disability. CONCLUSION OF LAW The criteria for service connection of a back disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). An August 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, following full notification, the claim on appeal was readjudicated in three supplemental statements of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's service treatment records (STRs) and VA medical treatment records have been obtained; she did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Further, the Veteran has undergone several VA examinations in connection with her claim, reports and opinions of which are of record. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although deficiencies in findings or rationales have been noted with most reports of such, the most recent report is fully adequate for adjudication. The examiner provided a clear rationale for his stated opinions, and referred to specific clinical findings in doing so. There is no indication in the record that additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran claims service connection for a back disability. She claims she incurred the disorder as a result of an injury during active service with the U.S. Army Reserves. Alternatively, she claims she developed a back disorder due to disability associated with a service-connected foot disorder. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is defined, in part, as "full-time duty under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c). INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's Army Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this matter, the Veteran claims that she incurred a back disorder directly due to service and secondarily due to a service-connected left foot disorder. 38 C.F.R. §§ 3.303, 3.310. She claims that she developed a lower back disorder over time as a result of rigors associated with service, particularly while working with food services, and while carrying equipment during training. She also claims that she injured her back in June 1987, as a result of stepping into a hole. The record shows that she injured her left foot during that accident. Since December 1996, she has been service connected for a neuroma on her left foot, for which she received extensive treatment during service to include surgery. The Veteran alternatively claims that, secondary to ongoing disability associated with the service-connected left foot disorder, she developed a back disorder. Evidence demonstrating a current lower back disorder is found in VA treatment records dated between 1994 and 2010, and in and VA examination reports dated in October 2002, February 2009, September 2010, November 2010, September 2011, and August 2012. This evidence notes diagnoses of degenerative lumbar disc disease, herniated discs, lower back spasm, intervertebral disc syndrome, degenerative joint disease, and spinal stenosis. Evidence indicating an in-service back problem is found in a June 1993 STR, dated during a period of INACDUTRA, which notes complaints of lower back pain, "radiating pain", and indicates "lumbar strain." Nevertheless, a service connection finding is unwarranted here. The preponderance of the evidence of record is against the proposition that the current back disability relates to the in-service complaint, or to the service-connected foot disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The evidence does not indicate that the Veteran injured her back during service, either over a period of time or as a result of the June 1987 accident that caused the left foot injury. 38 C.F.R. § 3.303. Moreover, the evidence does not indicate that the Veteran developed a back disability secondary to disability associated with the left foot disorder. 38 C.F.R. § 3.310. The record contains several medical opinions, certain of which address the issue of direct service connection, and others which address the issue of secondary service connection. 38 C.F.R. §§ 3.303, 3.310. A February 2009 VA examiner noted the Veteran's June 1993 complaints of back pain, but found the Veteran's disorder to be congenital and unrelated to service. The Board found additional inquiry warranted, so the case was referred to another VA examiner for a report and opinion. That examiner stated, in a September 2010 report, that the Veteran's back disability likely was not related to service, or to the complaints noted in June 1993. The examiner stated that in her review of the claims file, she saw no evidence of a chronic disorder during service. Then, in a November 2010 report, another VA examiner stated that the Veteran's degenerative disorder in her lower spine was not related to service. Instead, the examiner attributed the disorder to the Veteran's height and weight, which "contributed greatly to the degenerative changes that have amassed over many years." He stated that service likely did not cause or aggravate any disorder in the back because her condition, one of degenerative osteoarthritic changes and spinal stenosis, is due to her body size and weight. The examiner concluded that "this patient does not have any service connection whatsoever in regard to her low back pain[.]" On the issue of direct service connection, the Veteran's STRs and VA medical examination reports dated in the early 1990s are particularly probative. This evidence does not corroborate the Veteran's claims to in-service injuries. None of the STRs indicates an in-service back injury, or an in-service diagnosis of a back disorder. Significantly, none of the many STRs reflecting extensive treatment for the left foot disorder notes a back injury resulting from the June 1987 accident. Furthermore, the June 1993 STR noting the Veteran's complaints of back pain does not indicate either an injury or a diagnosed back disorder. Rather, the STR merely notes the Veteran's complaints of back pain. Nor does a September 1993 VA examination report indicate either an in-service injury or a diagnosed back disorder. The report notes the Veteran's complaints of lower back pain. But the report indicates normal range of motion, no spasm, and that the Veteran "stands erect, no list, no tilt." In fact, a diagnosed back disorder is not noted until a September 1994 VA radiology examination found evidence of lumbar disc bulging, and congenital spinal stenosis, indicating some other source of injury outside military service. With regard to the issue of secondary service connection, the claims file contains two opinions. The first, dated in September 2011, found the Veteran's back disorder likely unrelated to the foot disorder. The examiner stated, "it is not likely that the veteran's lumbar condition is caused [or] aggravated by her service-connected" left foot disability. The examiner offered this finding, despite noting a February 2010 VA medical finding that the Veteran's foot disability caused an altered gait. The examiner stated that adverse symptoms associated with the foot were attributable to the foot disorder and were not affected by, and did not affect, the separate back disability. In August 2012, an "Opinion/Clarification" was included in the claims file from another VA physician. This examiner reviewed and discussed the relevant evidence of record, and concluded that the Veteran's left foot disorder likely did not cause or aggravate the back disorder. In support, the examiner indicated that the bulk of medical studies would dispute the notion that left foot disability would adversely affect a back disability. The examiner pasted to the report medical literature that attributes lower back degenerative changes and pain to factors present in the Veteran's life, such as increasing age, obesity, low height, and poor physical fitness. Most importantly, however, the examiner noted that, "[a]s indicated by multiple examiners" the degenerative disorder in the lower spine is "consistent with the natural progression over time of this age related condition." As has been indicated in previous remands, none of these opinions is perfect. The February 2009 examiner did not fully explain the opinion and did not adequately consider evidence of an in-service complaint of back pain. The September and November 2010 examiners corrected this deficiency, but did not address the claim to secondary service connection. The most recent medical opinion provided information regarding the secondary service connection claim. Accordingly, the Board finds that the cumulative value of the several opinions addressing the Veteran's theories of entitlement comprises significant probative evidence countering the lay evidence connecting service, and the foot disorder, to the back problems. The medical examiners indicated reviews of the claims file. Most examiners indicated personal examination of the Veteran; those who did not still asserted a valid basis for their opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). By contrast, the Veteran merely provides lay evidence, i.e., her opinions as to how she believes her problems developed. The Veteran is certainly competent to offer evidence regarding observable symptoms such as back pain and limitation of motion. But the degenerative conditions in her lower spine are not conditions capable of lay diagnosis. The disorders concerns internal disease pathologies that are beyond her capacity for lay observation. None of the conditions in her lower spine can be causally related to military service without medical expertise. Given her background as a layperson, her opinions regarding etiology and diagnosis are of limited probative value. Davidson, 581 F.3d 1313. Thus, the Board cannot assign any significant weight to the lay assertions of record regarding etiology of any current back disorder. 38 C.F.R. §§ 3.303, 3.310. Moreover, the Veteran's statements are outweighed by the competent medical evidence which is squarely against her claim. As the preponderance of the evidence is against the Veteran's claim to service connection, the benefit of the doubt provision does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disorder, to include as secondary to a service connected Morton's neuroma, is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs