Citation Nr: 1305604	
Decision Date: 02/15/13    Archive Date: 02/21/13

DOCKET NO.  08-09 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement for service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Marine Corps League


WITNESSES AT HEARING ON APPEAL

Veteran and B.P.


ATTORNEY FOR THE BOARD

F. Yankey, Counsel

INTRODUCTION

The Veteran served on active duty from February 1975 to June 1977.  This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim.

The Veteran testified before the undersigned at a November 2009 Videoconference hearing.  The hearing transcript is of record.  

The Veteran's claim was remanded by the Board for further development in April 2010.  Thereafter, the Board referred the claim to a specialist affiliated with the Veterans Health Administration (VHA) for an additional opinion.  That opinion was received in February 2013, and the opinion is sufficient on which to base a decision at this time.  A copy has not been provided to the Veteran or his representative.  However, given that the outcome of this decision is fully favorable to him, there is no prejudice.

The Veteran has consistently reported during VA outpatient treatment, private treatment, and VA examination, that his low back pain radiates into his lower extremities, especially the left leg.  Furthermore, in his September 2007 application for Social Security disability benefits, the Veteran reported that his back, legs and knees limited his ability to work.  In light of the Board's grant of service connection for a low back disability, the issues of entitlement to service connection for a disability of the lower extremities, secondary to the low back disability, and entitlement to a total disability rating based on individual unemployability (TDIU) are referred to the AOJ for appropriate action.


FINDING OF FACT

The Veteran's diagnosed spondylosis and spondylolisthesis of the lumbar spine  and a compression fracture at L3low back disability are etiologically related his active service.

CONCLUSION OF LAW

Spondylosis and spondylolisthesis of the lumbar spine and a compression fracture at L3 were incurred in or aggravated by service.  38 U.S.C.A. §§ 1110 , 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159 , 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  The Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. 

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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 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, 1316 (Fed.Cir.2009).

"[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, supra (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").

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, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Analysis

The Veteran contends that his current low back disability is related to his active military service.  Specifically, he claims that he fell down the stairs and injured his back while aboard ship in the Navy and was taken to a corpsman where he received painkillers for his back.  He says his back pain gradually subsided, but never truly dissipated.  The Veteran admits that he did not seek further medical attention, as this was his last cruise.  The Veteran reported further that in October 1977, shortly after his discharge from service, he began working for General Motors.  He maintains that his back pain worsened during that time, and he has continued to have low back complaints since that time.  The Board also notes that there is some evidence of a post-service workplace back injury.

Unfortunately, the Veteran's service treatment records are unavailable.  In cases where a Veteran's service treatment records are unavailable through no fault of a Veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings conclusions, and to consider carefully the benefit of the doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (2012).  The Board is satisfied that a diligent effort, though unavailing, was undertaken to acquire them.  See August 2006 Formal Finding on the Unavailability of Service Records.  Neither the Veteran nor his representative has argued the contrary.  Furthermore, as the Veteran's claim is being granted in full, there is no prejudice to the Veteran.

VA treatment records dated from 2001 to 2011, as well as private treatment records and Social Security Administration (SSA) records, show that the Veteran has been treated for chronic back pain, radiating to the lower extremities, more so on the left, which he consistently reported started after a fall during active duty in the Navy.  A March 2005 MRI of the lumbar spine showed degenerative changes with multilevel lateral recess and foraminal stenosis, as well as small left foraminal and lateral disc protrusion at the L3-L4 level.  

The Veteran was afforded a VA examination in March 2005.  He provided a history of injuring his back in service when he slipped going down steps, lost his footing, and fell down three to four steps.  He said he was seen by a Navy corpsman, given some pain medication, and that he gradually got better.  However, he stated that his symptoms worsened after his discharge.  He complained of chronic back pain at that time.  Following physical examination, which included X-ray studies, the Veteran was diagnosed as having degenerative disc disease of the lumbar spine.  His claims file was not made available to the examiner, and no opinion was provided as to whether or not the Veteran's degenerative disc disease was related to his in-service back injury.  

The Board concludes this VA examination and opinion is inadequate in critical respects.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Veteran was afforded another VA examination in August 2010.  He provided a history of low back pain since 1997.  The Veteran was diagnosed with degenerative arthritis, grade I anterior spondylolisthesis of L5 on S1, due to spondylosis.  The examiner opined that the Veteran's low back disability was neither occurred in nor caused by service.  Emphasis was placed on the Veteran's own report of not experiencing low back pain until 20 years after his discharge, while he worked as a laborer at General Motors.  However, the Board notes that as discussed above, VA and private treatment records and reports from the Social Security Administration note the Veteran's consistent reports of a history of low back pain since an in-service back injury.  Furthermore, during his November 2009 Videoconference hearing, the Veteran testified that his low back complaints started in service and subsided after initial treatment in service, but got worse when he began working for General Motors in October 1977, just 3 months after his discharge.  See Videoconference hearing transcript, p.4.  

Accordingly, the Board finds that contrary to the findings made by the August 2010 VA examiner, the Veteran has undoubtedly presented a history of low back pain since service, which the Board finds credible.  Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  To be adequate, an examination must take into account an accurate history.  Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008).  As the examiner did not consider all of the Veteran's history or complaints, his negative opinion is inadequate for rating purposes.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  


The Board requested an opinion from a VHA specialist in June 2012.  A VHA opinion was received in February 2013.  A thorough review of the file was conducted.  The specialist noted the Veteran's report of a back injury in service, which resulted in significant back pain, and for which he was treated with analgesics and bed rest.  The Veteran reported that he experienced back pain, as well as pain radiating down his left leg, since that in-service injury.  The examiner also noted that the record contained other reports from the Veteran of a back injury in service, and consistent complaints of back pain and sciatic-type pain down his left leg, for which he was treated with NSAIDS and muscle relaxants.  The examiner noted further that radiographs taken in 1994 showed degenerative changes from T12-S1 and an old compression fracture of L3.  In addition, radiographs taken in 2005 suggested an old compression deformity at L3, moderate degenerative disc disease throughout the lumbar spine and bilateral spondylolisthesis at L5.  A subsequent MRI revealed degenerative changes in the lumbar spine with multilevel foraminal and foraminal stenosis, small left foraminal and lateral disc protrusion at L3-4, changes and stenosis at L4-5 on the right and L5-S1.

The examiner diagnosed the Veteran with spondylosis and spondylolisthesis of his lumbar spine, and a compression fracture at L3, which he opined was secondary to trauma.  In rendering his opinion, the examiner noted that it is accepted that the Veteran had a significant fall with injury to his back, and that he had experienced back pain since that time.  He noted further that radiographs demonstrated a compression fracture of L3, as well as spondylosis and spondylolisthesis, which could all be caused by trauma.  Therefore, he opined that the Veteran's injury in service was substantially related and causal to his back pain and sciatica.

The June 2012 VHA opinion is the only competent medical opinion holding any probative value.  The March 2005 and August 2010 opinions are flawed for the reasons previously stated.  Thus, based on the positive findings of the June 2012 opinion, along with the Veteran's competent and credible assertions of injuring his back in service and experiencing pain since that time, the Board finds that service connection for spondylosis and spondylolisthesis of the lumbar spine and a compression fracture at L3 is warranted.


ORDER

Entitlement to service connection for spondylosis and spondylolisthesis of the lumbar spine and a compression fracture at L3 is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs