Citation Nr: 1304534 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-43 463 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability (back), claimed as secondary to a service-connected left knee disability. REPRESENTATION Appellant (the Veteran) is represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from March 1968 to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the RO in Houston, Texas. The Veteran was scheduled for a February 2012 Board hearing; however, he withdrew his hearing request prior to the hearing. In March 2012, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran did not sustain an injury or disease of the lumbar spine in service. 3. Symptoms of a lumbar spine disability were not chronic in service. 4. Symptoms of a lumbar spine disability have not been continuous since service separation. 5. No current lumbar spine disability is related to service. 6. No current lumbar spine disability is related to any service-connected disability. CONCLUSION OF LAW A lumbar spine disability was not incurred in service; arthritis is not presumed to have been incurred in service; a lumbar spine disability is not proximately due to or a result of any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). 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). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of the lumbar spine in service, symptoms of a lumbar spine disability were not chronic in service, symptoms of a lumbar spine disability have not been continuous since service separation, and no current lumbar spine disability is directly related to service. Indeed, the Veteran does not contend that his lumbar spine disability is directly related to service. He does not contend that he sustained an injury or disease of the lumbar spine in service, that symptoms of a lumbar spine disability were chronic in service or were continuous after service. Thus, the evidence is in agreement as to these matters. The Veteran's sole contention regarding the etiology of his lumbar spine disability is that it was incurred on a secondary basis, proximately due to, or a result of his service-connected left knee disability. On the notice of disagreement, the Veteran noted that, over the years he had to compensate for a weak knee. On the VA Form 9, the Veteran clarified that he had limped for over thirty years, and this required his body to adjust, which in turn caused low back pain. The Veteran's representative offered in the March 2010 VA Form 646 that an altered gait and weight shift associated with favoring the service-connected left knee caused the lumbar spine disability. The Veteran was afforded a VA spine examination to address this issue in July 2008. The diagnosis was degenerative joint disease of the lumbar spine. After reviewing the claims file and service records, the examiner provided the opinion that the arthritis of the lumbar spine was not caused by or secondary to the Veteran's service-connected left knee osteoarthritis and instability. The rationale provided was that the current lumbar spine disability appears to be a degenerative condition that has occurred over time. In addition, the examiner noted that the Veteran has worked several years as an electrician, which, in the examiner's opinion, would put a significant amount of stress on the back. The Veteran was afforded another VA examination in June 2012. The examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the service-connected knee arthritis. The rationale was essentially based on the examiner's review of medical literature on the subject. According to the examiner, lower extremity abnormalities such as osteoarthritis are not considered risk factors for the development of back pain. The two VA opinions are against the proposed relationship between the service-connected knee disability and the lumbar spine disability. In contrast are several notations in the VA outpatient records which apparently restate the Veteran's assertions as to the onset of his back disability, as well as the opinion of a private chiropractor, which is positive for the asserted relationship. A June 2007 letter from a private chiropractor simply states that "It is my opinion that [the Veteran's] right knee problem is related to a lower back condition that he is being treated for in this office." Subsequently, the Veteran submitted a letter with the same date, from the same chiropractor, in which the "right" knee was changed to the "left" knee, undermining the overall reliability for their detailed analysis of this issue. VA outpatient records include a May 2007 report, in which it is noted that the left knee is interfering with the Veteran's work as an electrician. It is very difficult to squat and bend. VA treatment records dated in May 2008 and November 2008 note that there was a discussion of probable secondary effect of back pain from left knee arthritis. The details of this discussion were not reported. A June 2008 report notes recent onset of left low back pain due to degenerative joint disease of the left knee. A May 2008 physical therapy report notes the Veteran's report that wearing a hinged knee brace seems to make his back pain worse, and the Veteran wanted to switch to a more flexible brace. A November 2008 physician report notes the Veteran's account that a change in his walking due to the left knee pain has caused a low back pain. An April 2010 outpatient note reveals the Veteran's account that he feels his knee pain has radiated to his low back. In this case, the number of opinions attesting to a positive nexus between the left knee disability and the lumbar spine disability exceed those against such a relationship; however, the reasoning of the purportedly positive opinions is not as persuasive as the opinions against the asserted nexus. Opinions such as that of the June 2007 private chiropractor include no reasoning whatsoever. The rest seem to simply restate the Veteran's assertions without any discussion as to whether these assertions are correct. Indeed, it is unclear whether a medical opinion is even intended. While the Veteran is competent to report his symptoms, establishing the etiology of a lumbar spine disorder particularly when, as here, the onset is not associated with a specific injury or event, but is gradual in nature, is not a matter that is capable of lay observation, but requires medical knowledge. Where there are conflicting opinions by competent examiner's the Board must evaluate those opinions based on the reasoning provided. In this case, the only opinions that provide any specific reasoning are the July 2008 and June 2012 VA opinions. Those opinions were provided based on a specific request for an opinion and are not simply notations of discussions with the Veteran. This fact clarifies that the opinions are intended as statements of the examiners' beliefs as to the medical probabilities involved. The Board also notes that the July 2008 VA examiner opined that the Veteran's post-service occupation as an electrician played a likely role in the onset of his back disability. On the notice of disagreement, the Veteran disputed this opinion noting that his being an electrician had nothing to do with the back disability, as he had worked as a supervisor for over 15 years, a job which involved driving and using a computer, and did not involve any labor. However, this assertion conflicts with information he had provided to VA examiners previously. Notably, in addition to the account he provided to the July 2008 examiner, set out above, a July 2007 VA knee examination includes the Veteran's report that he had a supervisory job, but that his job required squatting and kneeling down. Thus, the Veteran appears to have provided accounts of more strenuous work activity to VA clinicians prior to the denial of his claim. Following the denial, his account changed to reflect more sedentary job requirements. In weighing the conflicting statements provided by the Veteran at various times, the point in time in which the statement was made is important. Because the Veteran was seeking only medical treatment in July 2007 and July 2008, it seems likely that he would report events carefully and accurately. Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. In contrast, when the Veteran thereafter presented his account, it was in the context of a denial of his claim. The Board is of course cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting his occupational tasks. Rather, it is the credibility of the later accounts which the Board finds is lacking. Simply put, the Board finds that the July 2008 VA examiner's opinion was not based on a false factual premise, but was based on an accurate interpretation of the Veteran's job requirements, as explained to him by the Veteran. Regarding the possibility of aggravation of the lumbar spine disability by the service-connected knee disability, the June 2012 VA examiner found that the lumbar spine disability did not predate the service-connected knee disability, but developed subsequently. This is consistent with the Veteran's account, as related to the April 2012 VA examiner that he began to have pain in the lumbar spine approximately 18 months prior, and that this had been a gradual onset of pain. He did not describe any specific injury or trauma at that time. Accordingly, as a pre-existing condition is a prerequisite for aggravation, the Board finds that the possibility of service connection for aggravation is precluded. In sum, the Veteran's principal contention is that he incurred a lumbar spine disability as a result of his service-connected knee disability. The Board finds that the weight of the evidence is against such a relationship. As such, and as the evidence overwhelmingly establishes no direct service connection basis for entitlement, the Board finds that service connection for a lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Remand Compliance As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's March 2012 remand instructions by obtaining updated VA treatment records, dated from January 2009 to present, from the South Texas VA Health Care System, and by obtaining a supplemental medical opinion to address the issue of aggravation. The claims folder was made available to the examiner for review and the examiner acknowledged having reviewed the claims folder. The examiner provided an opinion as to whether it is at least as likely as not that Veteran's degenerative joint disease of the lumbar spine is either proximately due to the Veteran's service-connected left knee disability. The Board acknowledges that the examiner did not provide a specific opinion regarding aggravation. However, the examiner found that the lumbar spine disability did not predate the service-connected knee disability, but developed subsequently. This is consistent with the Veteran's account, as related to the April 2012 VA examiner, that he began to have pain in the lumbar spine approximately 18 months prior, and that this had been a gradual onset of pain. Accordingly, as a pre-existing condition is a prerequisite for aggravation, a specific opinion regarding aggravation is not necessary, and the Board finds that the opinion provided is in substantial compliance with the remand instructions. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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 a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a June 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate service connection for a lumbar spine disability, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions. In addition, the Veteran was afforded VA examinations to address a nexus between the lumbar spine disability and the service-connected left knee disability. The Board finds that the Veteran has been afforded an adequate examination. Each examination was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the April 2012 examination included an opinion that was accompanied by a rationale, which was consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). ORDER Service connection for degenerative joint disease of the lumbar spine is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs