Citation Nr: 1306982 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-38 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). 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). FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran's current low back disability is related to his active duty service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claim, a letter dated in January 2009 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, with the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Board finds that the notice requirements that VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Records from the Social Security Administration (SSA) are not available, as a March 2012 response from the SSA reflects that no records were available for the Veteran. Additionally, although the Veteran identified private treatment records from D. Schinkai, D.C., despite two attempts to locate those records, the RO was unable to obtain them. The Board finds that the RO made reasonable efforts to locate the identified private treatment records, and notified the Veteran of their inability to obtain them in November 2012. Id. VA is required to provide the Veteran with a medical examination, or obtain a medical opinion, when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran was provided with a VA examination in September 2011, and the RO obtained a supplemental opinion from the VA examiner in August 2012 which addresses the etiology of the Veteran's low back disorder. The Veteran has not indicated that he found any of the VA opinions to be inadequate. Moreover, the Board finds that the August 2012 opinion to be adequate, as it is based on a complete review of the Veteran's claims file, and provides sufficient explanation and rationale for the conclusion that the Veteran's low back disorder is not related to his military service. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that his current low back disability is related to his active duty service, to include an in-service low back injury. He alleges that he injured his back at two separate times during his active duty service. In a December 2008 claim form, the Veteran stated that he first injured his back while moving a torpedo along with six other men, noting that he awoke the following morning with numbness in his left leg and a limp. He also stated that, a while later, he slipped and fell onboard the USS CALCATERRA, and sought treatment for a back injury at that time. He alleges that he sought treatment for his back injuries after service and noted that he tried to obtain those records, but that they were unavailable. In an August 2010 substantive appeal, the Veteran reported that he slipped and fell on oil and injured his back and then began noticing numbness in his legs and arms. He indicated that he continued to have life-long problems with his back thereafter. In an August 2012 statement, the Veteran reported that his back problems began during service when he injured his back while helping to secure a torpedo in rough seas. He noted that, while trying to hold it in place, he twisted his back, knocking him to the deck with pain in his waist and back area. He reported that he did not go to sick bay, but that a short time later, he developed pain in his legs and left side of his back. He also stated that, in 1959, he slipped and fell on an oily deck, injuring his back. He noted that he was treated for back pain during service. He stated that his back has caused him a lot of pain on and off for the past nearly 60 years with the pain worsening as he ages. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. A claimant may rely on lay evidence "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) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran's service treatment records reveal that he injured his low back during service. A May 1951 service entrance examination reflects that the Veteran's spine was normal. A February 1955 separation and reenlistment examination also shows that the Veteran's spine was normal. A November 1957 treatment record notes that the Veteran reported that he was losing control over his left leg and that it became limp. He described pain starting from the left groin and hip that radiated downward to the heels. He noted that he had similar symptoms in the right leg. The treatment record states that there was no evidence of any pathology relative to the Veteran's symptoms, and indicates that the Veteran was advised that there was no demonstrable abnormality at that time. On February 17, 1959, the Veteran presented with complaints of low back pain after slipping and falling on an oily deck. The diagnosis was back injury, lower part. The sick call reports from February 17, 1959 to February 21, 1959 note continued complaints of low back pain with treatment. A March 1961 separation examination indicates that the Veteran's spine was normal at that time. Private medical treatment records from June 1987 through March 1996 are negative for any complaints of or treatment for a low back disorder. The first post-service medical evidence of a low back disorder are September 2007 and October 2007 private treatment records noting that the Veteran suffered a work-related injury to his back on September 12, 2007. The initial diagnosis was lumbago/lumbar strain. A September 2007 x-rays of the lumbar spine showed degenerative disc disease, hypertrophic spondylosis, and facet joint osteoarthropathy. A September 2007 record notes that, while helping a customer remove a piece of plywood from an overhead shelf, the customer let go of the plywood and the Veteran pulled to the left side as the plywood fell. He noted that he developed pain in the following days which radiated to the left buttock and lower leg. The Veteran also reported that he had a previous back strain more than 20 years before. The diagnosis was acute strain with arthritis. Another September 2007 record indicates that the Veteran's underlying osteoarthritis and degenerative disc disease likely contributed to the pain severity in his low back. An October 2007 record notes that the Veteran had severe pain with symptoms of disc protrusion, including radicular symptoms. An October 2007 treatment record notes diagnoses of and treatment for severe low back pain with radiculopathy. An October 2007 magnetic resonance imaging scan (MRI) of the lumbar spine revealed posterior disc bulging and moderate disc degeneration at L3-L4 and L4-L5 with no frank disc herniation. There was moderate to severe levoscoliosis and lumbar spondylosis. Private treatment records from October 2007 through November 2008 note continued complaints of and treatment for low back pain with sciatica. An October 2007 treatment record notes that the Veteran reported a history of pain in the left low back and flank area beginning in September 2007 following a work-related accident. The physician noted that an MRI showed L-3 to L-4 disc bulge and moderate severe scoliosis with moderate severe levoscoliosis. The diagnoses were left lumbosacral radiculopathy and severe lumbar degenerative disc disease. A November 2007 record reflects that an electromyography (EMG) was conducted, which was normal with no evidence of left or right lumbosacral radiculopathy. A December 2007 record notes that the Veteran saw a chiropractor (Dr. Schinakai), which "worked wonders." The diagnosis was low back pain, which was noted to be better. A July 2008 record indicates that the Veteran had head, neck, and back pain. The diagnoses were cervical arthritis and degenerative disc disease. July 2008 X-rays of the cervical spine revealed marked hypertrophic and degenerative arthritic changes from C3 to C7. August 2008 X-rays of the cervical spine showed severe degenerative changes through the cervical spine with degenerative disc changes and anterior vertebral body spurring with severe foraminal stenosis within the mid to lower cervical spine. A November 2008 private treatment record reveals that the Veteran reported that he injured his back during service. He stated that he injured his back in 1957 while moving a torpedo and also in 1959 when he had a major back injury after falling on oil. The diagnoses included cervical degenerative disc disease and lumbago. In support of his claim, the Veteran submitted a November 2008 letter from C. Borgiel, M.D. Dr. Borgiel stated that he reviewed the Veteran's service treatment records "showing a back injury on 02/17/1957, secondary to a torpedo, and a major back injury in 1959" and concluded that the Veteran's "lumbar degenerative disc disease and lumbar spondylosis is likely the direct result of his service injury." In June 2009, the Veteran underwent a VA spine examination. The Veteran complained of pain and aching in the lower back with a history of an acute episode of back pain one year before which required him to rest for a few days. He also noted that, in 1983, he required rest in bed for a few days due to acute back pain. He stated that repetitive motion increased the pain without any additional loss of motion. Activities of daily living were reported to be limited, and the examiner indicated that his work was affected. The Veteran denied trouble with his bladder or bowel as well as radiation to his legs. He also reported some pain in his neck. The Veteran provided a history of having twisted his back while working with a torpedo resulting in numbness in his arms and legs a few days later. He also stated that he injured his back when he fell on the ship with treatment onboard. Physical examination revealed normal lumbar lordosis in the lower back with no stepoff deformity. There was no scoliosis and muscle tone was good with no spasm. Range of motion revealed extension to 15 degrees with complaints of pain and flexion to 45 degrees with pain. There was right and left lateral flexion to 10 degrees and rotation to 10 degrees with pain. The lower limbs were negative for any neurological deficiency. Straight leg raising was 50 degrees on either side with the complaint of back pain, but a Lasegue test was negative. X-rays of the lumbosacral spine showed degenerative changes in the spine, mainly involving the lower lumbar area. There was also a moderate degree of lumbar scoliosis. The diagnoses were degenerative disc disease of the lumbar spine and scoliosis. After reviewing the Veteran's claims file, performing an interview of the Veteran, and conducting an interview, the examiner concluded that it was "not at least as likely as not" that the Veteran's current lower back disorder is related to his military service, concluding instead that the current lower back disorder is degenerative in nature and age-related. In October 2010, Dr. Borgiel submitted another letter in support of the Veteran's claim. He stated that he "re-reviewed" the Veteran's service treatment records "showing a back injury on 02/17/1957, secondary to a 1000lb torpedo coming loose while in heavy seas. As you are aware several Seamen were injured during the incident. He also suffered a major back injury in 1959 in service." Dr. Borgiel concluded that the Veteran's lumbar degenerative disc disease and lumbar spondylosis were "likely the direct result of his service injury." In September 2011, the Veteran underwent another VA spine examination. The Veteran reported that he injured his back in 1957 while removing a torpedo on a destroyer, and again in 1959 after falling on the deck. He indicated that he worked as a truck driver after service, and noted that he had some back pain. The Veteran complained of flare-ups of back pain. Physical examination revealed range of motion of the thoracolumbar spine with forward flexion to 40 degrees with pain at 20 degrees, extension to 25 degrees with pain at 15 degrees, right and left lateral flexion to 20 degrees with no objective evidence of pain, and right and left lateral rotation to 10 degrees with no objective evidence of pain. The Veteran was able to perform repetitive-use testing with three repetitions, but range of motion testing afterwards showed reduced range of motion. The examiner indicated that the Veteran had functional loss after repetitive use testing, including less movement than normal, excess fatigability, incoordination, and pain on movement. There was no localized tenderness or pain to palpation in the thoracolumbar spine, and there was no guarding or muscle spasm. Muscle strength testing was normal and there was no evidence of muscle atrophy. Reflexes were normal, as was a sensory examination. Straight leg raising test was negative and there was no evidence of radiculopathy. There was no evidence of any other neurologic abnormalities or findings related to the thoracolumbar spine. There was no intervertebral disc syndrome. The Veteran reported that he used a back brace on a regular basis for lower back pain. There was no evidence of functional impairment of an extremity or other pertinent physical findings. The examiner reported that imaging studies of the thoracolumbar spine were performed, and that arthritis was documented. There was no evidence of vertebral fracture or other significant findings. The examiner indicated that the Veteran's spine condition impacted his ability to work. The diagnosis was degenerative disc disease. After reviewing the Veteran's claims file, the VA examiner concluded that the Veteran's lumbar spine disability was less likely than not due to his active duty service. The examiner explained that the degenerative changes were widespread in the spine and did not correspond with a single injury. The examiner noted that the changes were more consistent with the Veteran's age. In August 2012, the examiner who performed the September 2011 VA examination provided a supplemental opinion. The examiner again reviewed the Veteran's claims file, and concluded that it was "less likely than not" that the Veteran's current lumbar spine disorder was related to his active duty service. The examiner explained that the Veteran was 23 years old at the time of his in-service injury and noted that the November 1957 complaints of sciatica were merely subjective, as a medical examination performed at that time did not reveal any abnormalities. Thus, the examiner concluded that the Veteran's in-service symptoms were transitory, as no subsequent examinations diagnosed sciatica. With regard to the Veteran's current degenerative lumbar spine disease, the examiner explained that, although degenerative changes do not look different than traumatic arthritis, only localized changes would indicate arthritis of a traumatic nature. The examiner noted that, in this case, the Veteran's degenerative arthritis of the lumbar spine was diagnosed when he was 75 years old, and the radiographic evidence also showed degenerative changes in the cervical spine. Thus the examiner concluded that, because there was evidence of degenerative arthritis in both the lumbar and the cervical spine, the evidence suggested that his lumbar spine arthritis was more likely to be age-related than a result of a trauma. After a thorough review of the evidence of record, the Board concludes that service connection for a lumbar spine disability is not warranted. There is a current diagnosis of a low back disability with evidence of degenerative disc disease. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Degenerative disc disease was not diagnosed within one year after service discharge; therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; see also 38 C.F.R. § 3.307, 3.309. In addition, the Veteran's service treatment records reflect that he injured his low back during service; thus, there is evidence of an in-service low back injury. Nevertheless, the weight of the competent and probative evidence of record does not support a nexus between the Veteran's current low back disability and his active duty service. Importantly, after consideration of the Veteran's entire claims file, the Veteran's statements, and after performing a physical examination of the Veteran, the VA examiner who conducted the September 2011 VA examination and provided the August 2012 supplemental opinion concluded that the Veteran's lumbar spine disability was not related to his active duty service. The VA examiner provided explanation and rationale for the opinion in the August 2012 addendum, explaining that, because the Veteran had degenerative arthritis in his lumbar and cervical spine, the etiology was more likely age-related rather than a localized traumatic injury. The Board acknowledges the November 2008 and October 2010 private medical opinions provided by Dr. Borgiel, which reflect the opinion that the Veteran's current low back disability is related to his in-service injury. While Dr. Borgiel stated that he reviewed the Veteran's service records, Dr. Borgiel incorrectly reported the facts of the Veteran's in-service injury. Specifically, Dr. Borgiel noted that there was a back injury on February 17, 1957 secondary to a torpedo and a major back injury in 1959. While the service records do show a back injury in 1959, they do not reflect a back injury in February 1957. In that regard, there is evidence that the Veteran reported left leg symptoms in November 1957, there was no mention of a back injury due to a torpedo in February 1957. This incorrect factual reporting weighs against the probative value of Dr. Borgiel's opinion. Additionally, Dr. Borgiel did not provide any supporting explanation or rationale for his opinion, merely stating that the Veteran's current back disorder is likely the direct result of his in-service injury. Last, while Dr. Borgiel indicated that he reviewed the Veteran's service records, there is no evidence that he reviewed the remainder of the Veteran's claims file which contains pertinent medical evidence of a work-related injury in 2007. For the foregoing reasons, the Board does not afford significant probative value to Dr. Borgiel's November 2008 and October 2010 opinions. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). Although the Veteran asserts that he has experienced back pain since service and the evidence shows current diagnoses of arthritis in the lumbar spine, the Board does not find the Veteran's statements regarding the continuity of his symptoms to be credible. 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet.App. May 25, 2011). In that regard, back pain is not documented until September 2007 after a work-related accident. The Court has held that statements with respect to continuity of symptomatology are ordinarily credible lay evidence, even without contemporaneous evidence to confirm those statements. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, records associated with the claims file contradict his statements that he experienced back pain since his in-service injury. This calls the credibility of the Veteran's lay statements as to continuity into question. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). In that regard, the record reflects that the Veteran worked for many years after service discharge in physically demanding jobs such as working as a truck driver, in construction, in an automobile factory, and at a home improvement store. From the Board's non-medical perspective, it is difficult to reconcile the Veteran's report of back pain since service discharge in 1961 with a more than 50-year period of employment requiring physical labor. The remainder of the evidence of record, specifically those records addressing the Veteran's work-related back injury, do not reflect the Veteran's report of a history of back pain since military service. On the basis of the negative nexus opinion provided by the VA examiner, coupled with the evidence of record supporting that opinion and contradicting the Veteran's assertions as to continuity of symptomatology, service connection for a lumbar spine disability is not warranted. Accordingly, as there is no competent and probative evidence providing the required nexus between military service and a current lumbar spine disorder, service connection for a lumbar spine disability is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs