Citation Nr: 1304304 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 05-36 997 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to service connection for a low back disability. 2. Entitlement to a higher rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from May 1981 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California that declined to reopen the Veteran's claim of service connection for low back pain. In January 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing conducted at the San Diego RO in January 2009. A transcript of that hearing is of record. In March 2009, the Board determined that new and material evidence had been received and remanded the underlying claim of service connection for a low back disability. In August 2010, the Board denied service connection for a low back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In accordance with a September 2011 joint motion for remand (JMR) the Court vacated the August 2010 Board decision and remanded the claim to the Board for further development. The parties to the joint motion agreed that the duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was breached when VA failed to inform the Veteran of the results of its attempt to secure records. As a result, in February 2012, the Board remanded the claim to fulfill the duty to notify in accordance with the JMR along with other development. As development has been completed, the issue is once again before the Board. On a separate matter, in a June 2010 rating decision, the RO continued to rate the Veteran's hypertension as 10 percent disabling. In June 2010, the Veteran filed a notice of disagreement (NOD). The issue of entitlement to a higher evaluation for hypertension is addressed in the remand that follows the decision below. FINDING OF FACT The Veteran's current lumbar disc disease with spondylosis is as likely as not traceable to his active duty service. CONCLUSION OF LAW The Veteran has lumbar disc disease with spondylosis that is likely the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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 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) (West 2002) 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, 469 (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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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). Treatment records from the University of California San Diego Medical Center include lumbar spondylosis without myelopathy, mild facet joint sclerosis, bilaterally at L5-S1. X-ray results from 2011 showed stable mild degenerative disc disease and moderate spondylosis of the lumbar spine, greatest at the L5-S1 level, without acute osseous abnormality. See May 2012 VA addendum. Hence, a current disability has been demonstrated The service treatment records contain several entries pertaining to low back pain. A December 1981 entry noted that the Veteran presented with a complaint of low back pain (centered in his left upper buttock), and the examiner stated that there was no known injury. The Veteran reported having this problem for the previous six months, and stated that it radiated down the back of his left thigh. The examiner noted that there was no numbness or tingling present, and no bowel or bladder involvement. The examiner found the Veteran's right leg to be shorter than the left, and assessed the Veteran with sacroiliac rotoscoliosis. A few weeks later, the Veteran again presented with back pain on the left side of his back, buttocks and hip. On palpation, there were no masses, lumps, or any rigidity found. Pain was severe while standing, and the Veteran experienced relief while sitting down, partially slumped to the right side. Lower back pain versus a urinary tract infection was to be ruled out. A few days later, the Veteran again presented complaining of lower back pain on the left. The examiner noted that the lower back was tender from L-3 down, and stated that the Veteran had been taking robaxin with no results. The Veteran was again assessed with possible sacroiliac rotoscoliosis. In January 1982, the Veteran was sent for a back consultation with Dr. T.A.H. Dr. T.A.H. noted that the Veteran complained of pain in his lower lumbar area and left buttock, which radiated downward inside of the left thigh. Dr. T.A.H. noted that there was no muscle atrophy, and assessed the Veteran with sacroiliac joint pain and sciatica, and performed osteopathic manipulation. Subsequently in January 1982, the Veteran again complained of a back ache for the previous eight months, but he denied a history of trauma. The examiner stated that the Veteran exhibited no obvious deformity, but had limited range of motion when bending forward and to the left side. He was seen again for persisting back pain. A February 1982 discharge examination reflected a normal clinical evaluation for the Veteran's spine. The Veteran contends that his back was injured in service during a training exercise, noting that he was treated numerous times for low back pain while on active duty. He reported that the same pain still existed with the same intensity. See August 2006 statement by the Veteran. Specifically, he that he injured his back when a Jeep started to slide down a hill and he, along with some other Marines, jumped behind the jeep to prevent it from sliding, at which point he tripped and fell on a jack connection ball. The Veteran reported that he has experienced pain in his back since this incident. See January 2009 Board Hearing Transcript. Additionally, the Veteran submitted several statements from individuals who reported that the Veteran told them about his in-service back injury and that they witnessed him experience chronic back pain. More specifically, in a September 2011 statement, D.K. reported that she used to take the Veteran to his medical appointments, including treatment for his back during the late 1980's and early1990's. In a September 2011 statement, L.S. reported that he knew the Veteran from his military service and was aware of the Veteran's back injury in service. L.S. reported that he remained friends with the Veteran after he left service and witnessed him endure back pain. In a September 2011 statement, G.J. reported that she knew the Veteran prior to his military service. She reported that after the Veteran moved to California (in 1985), he told her that he hurt his back while he was in the Marines. He also indicated that he was no longer able to pass his physical test, and as a result did not reenlist in service. In September 2011, D.S. reported that knew the Veteran since 1998 and had witnessed him experiencing back pain. In a September 2011 statement, D.P. indicated that he saw the Veteran in 1987 and around that time the Veteran had to quit playing a basketball game because of back problems. D.P. reported that the Veteran complained about having back problems since he was discharged from the Marines. In a September 2011 statement, M.B. reported that he knew the Veteran since the late 1980's, and at that time the Veteran told him about his in-service injury. M.B. reported that the Veteran did not have health insurance and only received care from a health van or free clinics. In an October 2011 statement, G.S. reported that after the Veteran was hired in 2004, he informed G.S. of a back injury in the Marines. G.S. recalled numerous times that the Veteran's back pain or medical treatment interfered with his job performance. The Veteran and his friends, family, and coworkers are competent to report symptoms of back problems that they had personally experienced or witnessed. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). There is no evidence of record to directly contradict the Veteran's statements that back pain began during service and has continued ever since. While the contemporaneous record does not document back symptoms until 1992, the absence of such findings is not dispositive. Confirming evidence is not required and the absence of contemporaneous medical evidence is not dispositive. Jandreau. The additional lay statements from his friends, family, and coworkers provide further support for his claim. The lay statements have been consistent and are credible. Therefore, the Veteran's reports, in addition to the lay statements from those who knew him during service and have known him since then, are sufficient to establish an in-service incurrence of back pain and a continuity of symptomatology since discharge. The Board notes that there are conflicting medical opinions concerning the etiology of the Veteran's current low back disorder. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Evidence for the Veteran's claim includes a January 2007 medical opinion, in which, C.N.B., M.D., opined that the Veteran's current lumbar spine problems were due to his experiences in service and that the Veteran had chronic problems with his lumbar spine during military service. Dr.C.N.B. recounted the in-service entries that pertained to the back. Dr. C.N.B. explained that the Veteran currently had serious lumbar spine problems as documented by his current medical records and his lay statements. It was also clear that the Veteran was shown to have back problems in service as he had at least four visits to medical professionals and was given osteopathic adjustments on at least two occasions by Dr.T.A.H. Dr. C.N.B. noted that during service, the Veteran had months of back pain and described symptoms consistent with sciatica, noting that Dr. T.A.H. diagnosed sciatica in service in January 1982. Dr. C.N.B. stated that it was well known that such an injury precipitates or accelerates the onset of the degenerative process of the spine, and cited to Orthopedics, Principles and Their Applications, 4th Ed., Vol. 2 Turek (1984), beginning at page 1512: Dr. C.N.B. stated that it was well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability. Dr. C.N.B. again cited to Turek, supra. Dr. C.N.B. noted in his opinion that the Veteran's spine had undergone degeneration and again referenced Turek, above. He opined that the Veteran's in-service injuries likely damaged his supporting ligaments, thereby weakening his spine and causing him to have four visits to medical staff while in service. Dr. C.N.B. stated that it was likely that these early injuries caused his spine to fail at age 40+. In summary, Dr. C.N.B. stated that the Veteran's current lumbar spine problems were due to his experiences and problems with his back during military service for the following reasons: the Veteran entered the service fit for duty, he had multiple visits for lumbar spine problems, and now had advancing lumbar spine problems, the record does not contain a more plausible etiology for his spine problems, the Veteran has not had any inter-current injuries to his lumbar spine, the literature supports the nexus that Dr. C.N.B. explained, and no physician had provided an alternative diagnosis or history to explain the Veteran's current signs and symptoms. Finally, Dr. C.N.B. stated that although the record contained a discharge physical by Dr. R.C.W., it appeared superficial at best. Dr. C.N.B. noted that there was no documentation of a physical examination, reflex testing, sensory testing, or any attempts at pain or muscle strength documentation, and noted that no imaging was performed. In sum, Dr. C.N.B. stated that he had discounted the discharge examination for the above reasons, and the fact that the examination findings did not correlate with the multiple in-service signs and symptoms and the discharge examiners did not provide any literature to support their opinions. Dr. C.N.B. reported that he was competent to make the above opinion because he was a licensed professional with specialized training in the areas of interest (spine disease). He also reported that he reviewed the service treatment records, post-service medical records, imaging reports, the Veteran's lay statements, spoke to the Veteran on the phone, and referenced current applicable publications and explained how that applied to the Veteran, and he had reviewed pertinent positive and negative medical data. Also, in December 2011 correspondence, Dr. M.R.F., from the University of California, San Diego Medical Center, noted that she reviewed the Veteran's military records from 1981 to 1982. She reported that there were six different entries documenting that at various times during his active military service, he sought treatment for low back pain with radiating pain down his left leg and was diagnosed with sciatica. The physician reported that the Veteran continues to suffer from these same symptoms. The Veteran reported that he sought medical attention for these same problems many times after his discharge from service, but due to the passage of time many of the doctors and facilities had destroyed the copies of the Veteran's treatment records. Dr. M.R.F. found that the Veteran most likely suffered from chronic degenerative disc disease of the lumbar spine with radiculopathy, in addition to osteoarthritis of the lumbar spine (which has been shown on x-rays). Dr. M.R.F. reported that based on her experience as a Family Physician and her familiarity of the Veteran's symptomatology since he began treatment with her in January 2010, it was her opinion that it was more likely than not that the Veteran's current lumbar spine disability that includes degenerative disc disease and arthritis began with his documented low back injury during service. Evidence against the claim includes an April 2007 VA spine examination. The VA physician opined that after reviewing the claims file and performing a detailed history and physical examination, and reviewing the radiological evidence, as well as reviewing Dr. C.N.B.'s letter, the Veteran's current back condition (minimal facet arthropathy at L5-S1) was not caused by or a result of his previous back injury while in the military service. The examiner noted that she differed with Dr. B.'s opinion because there were a number of authors who believed that degenerative changes on x-rays were a result of the normal aging process, rather than a result of previous acute lumbosacral sprain which directly caused degenerative changes in the back. The examiner noted, in fact, that there were a number of people who did not serve in the military and had degenerative changes on radiological studies and were entirely asymptomatic. Such degenerative changes were incidentally found on x-ray studies, even though a patient will not have necessarily pain in the lower back. The examiner explained that the Veteran's current x-rays showed no degenerative disc disease and only minimal facet arthropathy at L5-S1, which was unusual for someone who experienced a previous traumatic event. The examiner reasoned that the Veteran's problem correlated better with a natural aging process than a previous history of trauma, explaining that more findings would be expected on x-ray than what was currently shown. In addition, there were no other records in the claims file that indicated that the Veteran sought medical attention/treatment following service, as the record did not include notations in CPRS for treatment of low back pain. In March 2012, the same VA examiner noted that x-rays of the lumbosacral spine in 2011 showed mild degenerative disc disease and moderate spondylolysis. The examiner reported that the Veteran's claim was over 30 years since he was separated from the military. The examiner noted that in her 2007 report, because x-rays from that time showed mild degenerative changes, she opined that this was a natural process with aging. The fact that his spondylosis or arthritic changes worsened again showed that the Veteran's degenerative changes were becoming worse with age and he was not serving in the military again. Therefore, the Veteran's low back condition was less likely than not (less than 50/50 probability) caused by a result of previous military service. In a May 2102 addendum, the same VA examiner added that treatment for a low back disability dating back to 2002, rather than 2007 as previously thought, did not change her previous opinion because the Veteran served from 1981 to 1982, more than 26 years ago from the time he separated from service. She reviewed the claims file in its entirety, including Dr. C.N.B's report. The slight worsening of the Veteran's x-rays were most likely a natural progression of aging, rather than his incidences of low back pain while serving in the military over 25 years ago. The conflicting medical opinions represent two different rationales of how the current back disability developed. The positive medical opinions view the in-service injury as precipitating the current disability, while the negative opinions consider the current disability to be a result of the aging process. A closer review of the VA examiner's opinions in April 2007, March 2012, and May 2012, reveal that such opinions did not reflect consideration of the Veteran's reports of his symptoms and history. In April 2007, the examiner reasoned, in part, that there were no medical records that reflected medical attention or treatment after service for his back. In the May 2012 addendum, the examiner changed her initial findings and acknowledged that the Veteran at least had back treatment as early as 2002, rather than 2007; however, she found that this did not change her opinion as 25 to 26 years had passed since his discharge from service. The Board notes that 20 years more accurately represents the timeframe between the Veteran's discharge in 1982 and 2002. Nevertheless, the VA examiner failed to consider a VA treatment record dated as early as March 1992 that documented back-related complaints. Additionally, in March 2012, the examiner reported that more than 30 years had passed since the Veteran's military service before he filed his claim; however, his current claim on appeal was dated in February 2002, approximately 20 years since service, and his original claim was filed in March 1990, approximately eight years after service. As the examiner's opinion is partly based on an inaccurate history, it is of less probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The April 2007, March 2012, and May 2012 opinions are also inadequate because the examiner did not acknowledge or comment on the Veteran's reports of continuous back pain since service. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The positive opinions, especially from Dr. M.R.F, were based on a review of medical records and on a history that was consistent with the evidence of record. The opinions also considered the Veteran's lay statements regarding continuous symptoms of low back pain with radiating pain down his left leg, and acknowledged that these were the same symptoms reported in service. See Nieves-Rodriguez, 22 Vet. App. at 304. The record shows a current low back disability, a back disability in service and a nexus between the in-service back problems and the current back disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbar disc disease with spondylosis is warranted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for lumbar degenerative disc disease with spondylosis is granted. REMAND In June 2010, the RO continued a previously assigned 10 percent rating for the Veteran's hypertension. Subsequently, in June 2010, the Veteran filed a notice of disagreement (NOD). The Board acknowledges that in a November 2012 rating decision, the RO granted service connection for hypertensive kidney disease and hypertensive heart disease and assigned each a 30 percent disability evaluation, effective March 28, 2011 and May 6, 2011, respectively. In a January 2013 rating decision, the RO determined that clear and unmistakable errors (CUE) were made in the November 2012 rating decision. Specifically, it was determined that the initial 30 percent rating for hypertensive kidney disease failed to include the evaluations for hypertension and hypertensive heart disease in a single evaluation as was required by 38 C.F.R. § 4.115. (Separate ratings were not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities.) Therefore, the evaluation of hypertensive kidney disease with hypertension and hypertensive heart disease was assigned a single evaluation of 60 percent disabling, effective March 28, 2011. Separate evaluations for hypertension and hypertensive heart disease were discontinued March 28, 2011, which was the effective date for service connection of hypertensive kidney disease with hypertension and hypertensive heart disease under Diagnostic Codes 7502-7541. 38 C.F.R. § 4.115b (2012). Although the evaluation of hypertension has now been included in the 60 percent evaluation of hypertensive kidney disease with hypertension and hypertensive heart disease, effective, March 28, 2011, the issue of entitlement to a higher rating for hypertension remains on appeal, including whether a rating higher than 10 percent is warranted prior to March 28, 2011. This is so because the Veteran's June 2010 NOD was never withdrawn. Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the question of entitlement to a higher rating for hypertension, including higher than 10 percent prior to March 28, 2011. If, and only if, a timely substantive appeal is filed, return the case to the Board for appellate review. The appellant 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs