Citation Nr: 1303897 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 05-32 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the residuals of a cervical spine trauma, including cervical spine strain. 2. Entitlement to service connection for a low back/lumbar spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from March 1975 to March 1979, with subsequent periods of reserve military service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The May 2004 RO decision denied service connection claims for the residuals of cervical spine trauma, including cervical spine strain, and a low back/lumbar spine disability. On his September 2005 Appeal, the Veteran requested a Board hearing in connection with his appeal; however, in July 2008 statement, he properly withdrew that request. 38 C.F.R. §§ 20.703, 20.704 (2012). The Board previously remanded these matters for additional development in November 2008, December 2010 and April 2012. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for the residuals of cervical spine trauma, including cervical spine strain, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record reflects a current diagnosis of degenerative disc disease of the lumbar spine, a low back disability. 2. Resolving all reasonable doubt in his favor, the evidence of record relates degenerative disc disease of the lumbar spine, a low back disability, to the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a low back/lumbar spine disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to assist and notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Facts The Veteran's January 1975 enlistment, November 1978 separation and March 1983 reserve enlistment examinations are negative for any noted abnormalities of the lower extremities or spine/musculoskeletal system. An August 1975 service treatment record documents his treatment for various orthopedic complaints following a motor vehicle accident and his diagnosis of musculoskeletal pain. In an April 1978 service treatment record, the Veteran reported a one year history of back pain and spina bifida occulta involving the S1 segment was revealed on radiological testing. A June 1985 reserve emergency treatment record notes the Veteran's treatment for back and neck pain related a head trauma sustained during a period of annual training. A March 1997 reserve Medical Evaluation memorandum and supporting medical documents reflect a reserve service determination that the Veteran was unfit for duty based in part on his diagnosed recurrent back pain, as well as his involvement in a post-service motor vehicle accident in the mid-to-late 1980s. Numerous post-service private treatment records document the Veteran's treatment related to low back/lumbar spine related symptoms and conditions. At an August 1993 treatment, the Veteran conveyed that he was obtaining treatment for increased low back pain over the prior 18 months with no associated trauma or occurrence, and the private physician diagnosed degenerative lumbar disc disease with recurrent back pain. Another treatment in September 1997 reflects his care associated with low back symptoms following an employment related fall two-days prior, confirms his regular low back treatment at the facility and provides a diagnosis of an acute lumbar disc injury. An October 1999 treatment record documents MRI evidence of disc degeneration at L4-5 and L5-S1 that the private physician indicates to reflect little change from the findings of a 1995 MRI. A November 1999 treatment record indicates regular low back treatment was of little success in managing the Veteran's back condition because of his continued "disabling pain and [inability] unable to straighten up because of pain in the back," resulting in his referral to another facility for possible Intradiscal Electrothermic Therapy (IDET). The Veteran continued to seek low back/lumbar spine related treatment from private physician E. Johnson, M.D., as first noted in July 2003. In a February 2004 statement, Dr. Johnson states that the Veteran's current low back condition is more likely than not "related to the aggravation of the back complaints [documented] in service," specifically citing August 1975 in-service MVA related treatment, April 1978 in-service back related treatment and endorsement of recurrent low back pain on March 1987 and September 1996 reserve Reports of Medical History. Then, in a March 2006 statement, Dr. Johnson confirms regularly treating the Veteran's low back condition for many years and reiterates his review of relevant medical records and his "professional opinion" that the Veteran current lumbar spine condition is more likely than not related to the conditions noted and treated during active military service. A January 2011 VA examiner reviewed the Veteran's service and VA treatment records, reported relevant examination findings and indicated a current diagnosis of early degenerative disc disease of the lumbar spine. The examiner then opined that the diagnosed condition was not likely related to military service, given the relevant symptoms did not have their onset for 20 years after service and there was no in-service medical evidence of lumbar spine related trauma or treatment. Principals of service connection 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 symptomatology. Merits The evidence clearly demonstrates a diagnosis of degenerative disc disease of the lumbar spine including the residuals of lumbar spine trauma. See VA Examination Rpt., Jan. 18, 2011. The Veteran provides a competent and credible account of low back symptomatology, including in- and post-service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's account as to these matters has been generally consistent, even when provided solely for the purpose of seeking and obtaining medical care and treatment. The objective medical evidence of record also tends to corroborate the Veteran's account of low back symptomatology. Together these factors render his statements on these matters competent, credible and highly probative evidence in favor of the claim. See Buchanan, supra.; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Dr. Johnson's opinions confirm the Veteran has a current low back/lumbar spine diagnosis, and provide cogent and well-reasoned medical rationale for relating the diagnosis to military service; specifically his documented in-service back related symptoms and treatments. Importantly, the respective February 2004 and March 2006 letters contain clear medical opinions, based on relevant medical expertise as well as consideration and analysis of relevant medical evidence and the Veteran's competent and credible account of symptomatology, rendering the provided conclusions highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, although the courts have rejected the treating physician rule, the probative value of Dr. Johnson's opinions is further enhanced when considered with the physician's knowledge and experience treating the claimed condition, including as it pertains to a post-service employment related low back/lumbar spine trauma, as well as the opinions general consistency with the other medical evidence of record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993). Although there are numerous relevant private treatment records associated with the claims folder, the January 2011 examiner specifically states the provided opinion is only based on a review of service and VA treatment records. This limited consideration of the evidence of record likely explains the statements and findings that are inconsistent with the other objective medical evidence of record. Particularly, the January 2011 examination report indicates the Veteran experienced no low back/lumbar spine symptoms for 20 years after separation but medical (i.e., a June 1985 reserve emergency treatment record), as well as competent and credible lay evidence, place his low back/lumbar spine treatment, symptoms and diagnosis as few as 6 years after his March 1979 separation from service. The January 2011 examiner's opinion relies largely, if not entirely, on the medical evidence of record, or lack thereof, which is not only inaccurate but is also an improper basis for an adequate etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The January 2011 VA opinion is based on incomplete, if not inaccurate, reasoning/analysis, and is of little, if any, probative value. See Nieves-Rodriguez, supra.; see also Coburn v. Nicholson, 19 Vet. App. 427 (2006). The evidence confirms the Veteran's current diagnosis of degenerative disc disease of the lumbar spine; multiple low back/lumbar spine treatments; and complaints and trauma during active military service and periods of annual reserve military service. The most probative medical evidence of record also sufficiently relates the currently diagnosed low back/lumbar spine disability to the Veteran's period of military service. The criteria to establish service connection for a low back/lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, have been met. ORDER Service connection for a low back/lumbar spine disability, is granted. REMAND Given the grant of service connection for a low back/lumbar spine disability, the January 2011 and July 2005 VA examination opinions must be supplemented to allow a fair and fully informed assessment of the service connection claim for the residuals of a cervical spine trauma, including cervical spine strain. Neither examiner had the opportunity to provide an etiological opinion regarding whether any cervical spine condition was aggravated by the now service-connected low back/lumbar spine disability. Moreover, while no cervical spine condition was diagnosed at the July 2011 VA examination, the July 2005 VA examiner diagnosed cervical strain and the July 2011 examiner did not provide an adequate assessment as to whether this condition, diagnosed during the pendency of the appeal, was related to military service or was an accurate diagnosis. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record also suggests that the Veteran receives regular treatment related to his cervical spine disability; however, VA treatment records dated since February 2004 have not been associated with the claims folder nor are the records available via the Virtual VA system. The record also suggests he may receive relevant private cervical spine treatment and the record does not reflect sufficient efforts to obtain records generated after November 1999. VA must attempt to obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran he may submit lay statements from individual that have first-hand knowledge, and/or who were contemporaneously informed of his cervical spine symptomatology, including any possibly relationship to service or service-connected disability(ies). Provide an appropriate amount of time to such this lay evidence. 2. Contact the Veteran to ascertain any private physician(s) and facility(ies) where he received any cervical spine treatment or hospitalization, including private physicians C. Goodman, M.D., E. Johnson, M.D., and the private Highland Clinic and Highland Hospital, since November 1999. Then, undertake all appropriate efforts to obtain any indicated treatment records. In light of the forthcoming changes to 38 U.S.C.A. § 5103A(2)(B), there must be two attempts to obtain identified private treatment records or there must be a formal finding(s) that a second request would be futile. All development efforts must be associated with the claims folder. 3. Obtain all outstanding VA hospitalization and treatment records related to the cervical spine condition, dated since February 2004. Any negative response(s) must be in writing and associated with the claims folder. 4. After the aforementioned development has been completed, schedule the Veteran for a VA cervical spine examination with an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to address the following: (A) Diagnose all current cervical spine pathology, if any is present, specifically ruling in or excluding a diagnosis of cervical strain. (B) As to all diagnosed conditions, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) the condition: (i) had its onset during the Veteran's period of active military service, any period of reserve military service (i.e., periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) or within one-year of separation from active military service; (ii) is related to the Veteran's active military service, any period of reserve military service (i.e., ACDUTRA and INACDUTRA), specifically discussing the August 1975 in-service motor vehicle accident and the June 1985 head trauma sustained during a period of annual reserve training; (iii) was permanently increased beyond its natural progression during any period of reserve military service (i.e., ACDUTRA and INACDUTRA); specifically discussing the August 1975 in-service motor vehicle accident and the June 1985 head trauma sustained during a period of annual reserve training; (iv) was caused by any service-connected disability, specifically including a lumbar spine disability; and (v) was aggravated by any service-connected disability, specifically including a lumbar spine disability. In responding to the requested opinions, the examiner is advised that the Veteran was not participating in any form of reserve military service on May 8, 1987, the date a June 1987 reserve service treatment record reports he sustained a cervical spine strain. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements, an August 28, 1975, service treatment record, a June 1985 reserve emergency care record, a June 1987 reserve cervical spine treatment record and physical profile report, the Veteran's March 1987 reserve Medical Evaluation memorandum, etc.) and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 5. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs