Citation Nr: 1304489 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-33 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability to include as secondary to service-connected bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1945 to December 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is of record. The Board remanded this matter in March 2011 for further development. Thereafter, the RO continued the denial of the claim as reflected in the March 2011 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. In July 2012, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). A response was received in October 2012. The Veteran and his representative were provided with a copy of the medical opinion. The Veteran responded to the letter in December 2011 and included additional VA treatment records with a waiver of initial RO review of the evidence. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. §§ 20.903, 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Degenerative disc disease and degenerative joint disease of the lumbar spine was not diagnosed within one year after discharge from military service and the preponderance of the evidence shows that the Veteran's current low back disabilities are not etiologically related to military service. 2. The preponderance of the evidence shows that the Veteran's service-connected bilateral knee disabilities did not cause or aggravate his current back disabilities. CONCLUSION OF LAW A back disability was not incurred in or aggravated by active military service, nor may arthritis of the lumbar spine be presumed to have been incurred therein and it is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a letter dated in February 2008 satisfied the duty to notify provisions prior to the July 2008 AOJ decision. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a back disability to include as secondary to a service-connected disability. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment and examination records, VA examination reports dated in July 2008 and April 2011, a September 2012 VHA medical expert opinion, lay statements from the Veteran and a transcript of the February 2011 Board hearing. The April 2011 VA examination reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiner provided an explanation for her opinion that the Veteran's current back disabilities are not related to active military service. Based on the foregoing, the Board finds the VA examination is adequate for adjudication purposes with respect to the issue of direct service connection. The Board notes that the April 2011 VA examination did not provide an opinion on whether the Veteran's service-connected bilateral knee disabilities aggravated his current back disabilities as requested in the March 2011 Board remand. Thus, the Board sought a VHA opinion to cure this defect and provide the Board with a better insight into the medical question of whether the Veteran's service-connected bilateral knee disabilities caused or aggravated his back disabilities. The Federal Circuit Court has upheld the Board's power to both obtain such opinions and adjudicate the matter without RO review, provided that the claimant is provided a copy of the examination report and an opportunity to respond. Disabled American Veterans, et.al, vs. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). The VA medical expert reviewed the claims file and provided an opinion on whether the Veteran's back disabilities were caused by or aggravated by his service-connected bilateral knee disabilities with a clear explanation that appears to be based on the evidence of record and medical knowledge. Therefore, the VHA medical expert opinion is adequate for adjudication purposes. The Board observes that the Veteran submitted additional VA treatment records with respect to his claim in response to the VHA medical expert opinion. The Veteran asserted that he fell in July 2011 due to weak knees resulting in him reinjuring his back. The July 2011 treatment records show that the Veteran reported to the emergency room after he slipped and fell getting out of bed. He reported pain in the lower neck, thumbs and left shoulder. The Veteran had a scrapped lower lip. Physical examination revealed mildly tender lower cervical spine midline and no step off. There was no other spine tenderness. A November 2011 x-ray of the lumbosacral spine reveals that there were no significant changes as compared to the x-ray conducted in February 2010. As the medical evidence does not indicate that the Veteran had an injury to the low back as a result of the fall in July 2011, the Board finds that another VA opinion is not required. This issue was previously remanded in March 2011 in order to obtain all VA treatment records from 1948 to the present from the VA Medical Center (VAMC) in Gainesville, Florida and to provide the Veteran with a VA examination and opinion for service connection claim for a back disability. The claims file shows that a request for VA treatment records from 1948 to the present was sent to the VAMC in Gainesville, Florida and treatment records from February 1979 to March 2011 were associated with the file. The record contains an April 2011 VA examination report that addresses some of the questions raised by the Board and it was supported by an explanation. As noted above, the Board obtained a VHA medical expert opinion with respect to the issue whether the Veteran's disability was caused by or aggravated by his service-connected bilateral knee disabilities. The medical expert addressed the questions raised by the Board and provided a clear explanation for his opinions. Therefore, the questions raised in the March 2011 Board remand have been adequately addressed in the April 2011 VA examination report and the September 2012 VA medical expert opinion. Accordingly, the Board finds that there has been substantial compliance with the March 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran claims that his service-connected bilateral knee disabilities caused and/or aggravated his current low back disabilities. He explained that his knee disabilities has resulted in an altered gait and has caused him to fall on several occasions, which has aggravated his back disability. Furthermore, the Veteran reported during the April 2011 VA examination that his back problems began during active military service. Therefore, the Board will consider whether the Veteran is entitled to service connection for a back disability on a direct and secondary basis. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post-service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In assessing whether the Veteran is entitled to service connection for a back disability, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability. An April 2011 VA examination reveals a current diagnosis of severe degenerative disc disease/degenerative joint disease of the lumbosacral spine, status post L2-L3 decompressive laminectomy. VA treatment records also show that the Veteran has a diagnosis of lumbar spine stenosis. Thus, the Board finds that the Veteran has a current diagnosis of the claimed disability. Nevertheless, the competent and credible evidence of record does not show that the Veteran's current low back disability is related to his active military service, his arthritis of the lumbar spine manifested to a compensable degree within one year of discharge, or manifested a continuity of symptomatology indicative of low back disability in the first several years after discharge from military service. A review of the Veteran's service treatment records show that the Veteran did not complain of or receive treatment for any back problems during active military service. A March 1950 VA examination reveals that the Veteran's spine showed no deformity or abnormal curvature and there was no evidence of limitation of motion. The first evidence of any complaints of back problems was in a January 1953 claim for compensation, approximately seven years after discharge from active military service. The first medical evidence of a diagnosis of a back disability (mild degenerative joint disease of the lumbar spine) was in 1984, approximately thirty eight years after discharge from active military service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With respect to whether there is evidence of continuity of symptomatology since service, the Board observes that the Veteran indicates that his low back problems began in service, which continued after service. See April 2011 VA examination, February 1953 claim for compensation (back ache was incurred during service). The Veteran, as a lay person, is competent to report problems with his back in service and continuous back problems since military service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (Veteran is competent to testify regarding continuous pain since service). However, the Board finds that the lay statements with respect to continuity of symptomatology are not credible. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (the Veteran's statements are subject to a Board analysis of credibility). The evidence of record shows that the Veteran has provided conflicting statements regarding the onset of his back problems. Specifically, a June 1984 VA examination reveals that the Veteran reported that he had a history of back pain for the last several years. A November 1983 VA treatment record shows that that the Veteran provided a history that he was hospitalized due to a back injury in 1978 or 1979. A July 2008 VA examination report shows that the Veteran reported that he began to have low back problems in the late 1970's or early 1980's. Furthermore, a March 1950 VA examination reveals that the Veteran's spine showed no deformity or abnormal curvature and there was no evidence of limitation of motion indicating that he did not have a back disability at that time. Based on the foregoing, the Board that the lay assertion that he had back problems in service with a continuity of problems since service is not credible and therefore it is of no probative value. As such, service connection cannot be granted on the basis of chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). As the record does not contain evidence of degenerative joint disease of the lumbar spine within one year after discharge of service and there is no credible or probative evidence of continuity of symptomatology of low back pain since service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current low back disability and his active service. In this case, the record contains a negative medical opinion. A VA examiner in April 2011 provided the opinion that the Veteran's lumbosacral spine condition is less likely as not caused by or a result of active service. The examiner explained that there is no evidence of a back problem during service and his spine examination in March 1950 was unremarkable with normal range of motion. He also noted that there is no evidence of any chronic back condition over the next thirty years and the next note relating to this condition is in 1984 at which time the examiner writes that the Veteran had several years of back pain. The examiner also observes that the Veteran's profession is farming which requires physical work and it is likely that this is the etiology of his back findings today. The Board finds that the VA opinion in April 2011 is persuasive and probative as the examiner reviewed the record and provided a clear explanation for his opinion based on the evidence of record, medical literature and clinical experience. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed) The Board recognizes that the Veteran indicates that his low back disability is related his active military service. As noted above, lay persons can provide an account of observable symptoms, such as back pain. See Clyburn, 12 Vet. App. at 301; Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion on the etiology of degenerative joint disease/degenerative disc disease of the lumbosacral spine and lumbar stenosis have no probative value because lay persons are not competent to offer such medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current low back disabilities and his military service. With respect to whether the Veteran's service-connected bilateral knee disabilities caused or aggravated the Veteran's current back disabilities, the Board observes that the record contains a negative medical opinion. Specifically, the record contains a VHA medical expert opinion from an orthopedic surgeon that it is far less than fifty percent likely that the Veteran's bilateral knee disabilities or falls partially due to his degenerative knees caused or aggravated the Veteran's spine disorders. He explained that the radiogenic documentation of the spine and knees in September 1984 indicate that the spine degenerative changes were more advanced than the knee changes. The Veteran's records indicate that the Veteran has a diagnosis of generalized osteoarthropathy, which is felt to be a genetically determined condition. The examiner determined that the degenerative process in the knees is less than fifty percent likely to have caused a permanent identifiable incremental increased in severity (aggravation) of low back problems. Additionally, any falls attributed to his knees giving out would be multifactorial and not due simply to his "bad knees." He explained that depending on where the pathology in the spine is located different ambulatory patterns will alter symptoms such as pain or neurologic dysfunction. The June 1984 evaluation shows how the change in his spine motion with a particular change in ambulatory pattern will affect his particular constellation of spine pathology. The localization of pain in this way does not equate to a mechanism that is at least or greater than fifty percent likely to cause damage to the spine over and above the process of walking on normal knees. Additionally, the probable underlying process of generalized osteoarthropathy is more than fifty percent likely to have caused the progressive worsening of his spine problems. The Board finds that the opinion by the medical expert is persuasive and probative as he provided a thorough explanation based on the evidence of record and medical knowledge. The Board recognizes that the Veteran contends that his back disabilities were caused by or aggravated by his service-connected bilateral knee disabilities. Lay persons can provide an account of observable symptoms, such as in this case the Veteran's observation that he has low back and that he experienced increased back pain after falling. See Clyburn, 12 Vet. App. at 301; Caldwell, 1 Vet. App. at 469. However, lay assertions regarding medical matters such as an opinion whether a disorder is related to a service-connected disability has no probative value because lay persons are not competent to offer such medical opinions as it requires special knowledge. Espiritu, 2 Vet. App. at 494-95. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current back disabilities his service-connected knee disabilities. In this case, the record does not contain any probative medical evidence or opinion that would indicate the Veteran's current back disabilities are related to military service or his service-connected bilateral knee disabilities. As discussed above, the only probative medical evidence of record asserts that the Veteran's back disabilities are not related to military service and is not caused by or aggravated by his service-connected bilateral knee disabilities. In conclusion, the evidence of record shows that there is no credible lay evidence of continuity of symptomatology since military service and the probative medical opinion provides evidence against the claim that his current back disability is related to military service or is caused by or aggravated by service-connected bilateral knee disabilities. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a back disability. Accordingly, the Board concludes that service connection for a back disability is not warranted. ORDER Entitlement to service connection for a back disability to include as secondary to service-connected bilateral knee disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs