Citation Nr: 1308307 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-11 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) with spondylosis. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to August 1974. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a November 2005 rating decision of the VA Regional Office in Anchorage, Alaska that, among other things, denied service connection for right knee cyst, right ear cyst, hepatitis C, and a low back disability. By decision dated in July 2010, service connection was granted for right knee cyst. Service connection was denied for cyst behind the right ear. These matters are no longer for appellate consideration. The issues of entitlement to service connection for hepatitis C and a low back disability were remanded for further development. FINDINGS OF FACT 1. Lumbar spine DDD with spondylosis is related to service. 2. Hepatitis C is related to service. CONCLUSIONS OF LAW 1. Lumbar spine DDD with spondylosis was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Hepatitis C was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court of Appeals for Veterans Claims (Court) has held, however, that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see also 38 U.S.C.A. § 5103A (a)(2). As the Board is granting the only two claims being decided herein, further assistance is unnecessary to aid the Veteran in substantiating these claims, and further discussion of the VCAA is therefore unnecessary. Pertinent Law and Regulations 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Lumbar Spine DDD With Spondylosis The Veteran's service treatment records do not contain evidence of treatment for low back symptoms. On examination in May 1974 prior to discharge from active duty, he noted that he had recurrent back pain. The examining official did not record any comments in this regard. Post service VA clinical records dating from 1974, to include reports of VA hospitalization in April 1977, January 1979 and April 1980 do not reference low back complaints. However, in January 1979, the Veteran filed a claim for service connection indicating that he strained his back at Camp Delmar, and had been treated by a corpsman at that time. In a VA outpatient record dated in October 2004, the Veteran stated that he had had chronic low back pain for 10 years that had gotten worse during the last two weeks. He wanted stronger pain medication. A VA outpatient clinic note dated in March 2006 shows that the Veteran was seen with a complaint of left side leg pain radiating from the back. It was noted that he had medical history significant for arthritis of the lumbar spine and was still having occasional back pain. Examination disclosed findings that included lower lumbar spine area tenderness. Diagnoses included lumbar spine area arthritis. The Veteran underwent a VA compensation examination in July 2007. The examiner noted that the claims folder was reviewed. He stated that while in service, his drill instructor had kicked him in the back. He related that he did not seek medical attention for about two months, but because of persisting low back pain and tingling in the legs he went to sickbay. The appellant said that he was profiled to light duty for a few weeks and was assigned to deskwork until separation from service. He indicated that low back pain had continued since that time. A comprehensive physical examination was performed. X-rays of the back were obtained that were interpreted as showing spondylosis at most levels of the lumbar spine, minimal degenerative disc disease at the L4-L5 levels, and mild scoliosis with convexity to the right. In a VA outpatient record dated in November 2007, the Veteran stated that he hurt his back while engaged in commercial fishing. Pursuant to Board remand, the Veteran was afforded a VA compensation examination in August 2010. The examiner indicated that the claims folder was reviewed. Pertinent background and clinical history were recited. The Veteran reiterated that he was kicked in the back by a drill sergeant resulting in severe pain, and that he had sought medication attention two months later because of persistent pain. A spine examination was performed. Diagnoses of spondylosis of the spine, degenerative disc disease, and mild scoliosis were rendered. Following examination, the examiner stated that he could not resolve the issue of whether a back problem was related to service because there was no document in service for treatment of back pain. It was also noted that there were no witnesses corroborating the Veteran's account of being kicked in the back. The examiner stated that "I do not feel justified in accepting the Veteran's statement on face value without other evidence to back it up." The Veteran was afforded another VA examination in September 2011, to include consideration of his notation at service discharge that he had recurrent back pain. The claims folder was returned to the August 2010 examiner. On this occasion, the diagnosis was degenerative disc disease. The examiner opined that the claimed back condition was at least as likely as not incurred in or caused by the claimed inservice injury, event, or illness. The rationale provided was that the Veteran reported being kicked in the back by a drill instructor in 1972 and that this was not evaluated because of a fear of retaliation. It was also noted that there was documentation in the Veteran's separation documents of complaints of prior back pain. The RO requested further clarification of the opinion. In a supplemental report dated in November 2011, the examiner opined that the Veteran's back problem could well have begun with traumatic activities subsequent to service but that "I have no way of determining whether these 'traumatic experiences' are more significant in his development of back pain than the initial injury. This would be true in many situations and to pick one over the other would be mere conjecture. I will stand by my opinion that the Veteran's back problem is as likely as not due to his claimed injury in the service." The Veteran has been diagnosed with lumbar spine DDD with spondylosis and has thus met the current disability. He has described an in-service back injury and is competent to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This testimony is supported by the Veteran's own in-service indication that he had recurrent back pain, and the Board finds this testimony credible. The only remaining question is whether the current lumbar spine disability is related to the in-service injury. The only VA physician to express an opinion on this question carefully considered the evidence on three occasions and ultimately concluded that the current back disability is related to service. He considered whether the current disability was due to post service trauma but declined to so find, and adhered to his opinion that it was related to the in-service trauma described by the Veteran. While his opinions relied, in part, on the service history provided by the veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the opinion is supported by the evidence that the Veteran indicated prior to discharge from active duty that he had recurrent low back pain and his reference in 1979 to having had back strain during service for which service connection was sought. Moreover, the Board has found the Veteran's statements credible. As the physician explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no contrary medical opinion in the evidence of record. The weight of the evidence therefore indicated that lumbar spine DDD with spondylosis is related to service. Entitlement to service connection for this disability is therefore warranted. Hepatitis C Service treatment records reflect that he was admitted in June 1973 after one week of experiencing symptoms that included a dark, cola-colored urine, easy fatigue, anorexia and loss of taste for cigarettes. He was icteric with icteric sclerae. A diagnosis was rendered of hepatitis A, Australian antigen negative. Post service VA outpatient records dating from October 1974 indicate that the appellant sought treatment for some similar symptoms but that hepatitis could not be ruled in. He was hospitalized in April 1977 for gastroenteritis and was determined to have chronic mild liver disease, etiology unknown. A history of polydrug use, including heroin, was noted in 1978 and 1979. Service connection was granted for residuals of [non-specific] hepatitis in December 1974. It was noted that blood chemistry studies still showed some residuals. A VA outpatient clinical record dated in May 2004 shows that the Veteran had been admitted for the chemical dependency treatment program in March 2004 and found to have a hepatitis panel that was positive for hepatitis C and hepatitis B surface antibody. The Veteran filed a claim for an increased rating for "hepatitis C" in June 2004. He was afforded a VA examination in July 2004 whereupon a history was rendered of his being diagnosed with non-A, non- B hepatitis in 1974, although the clinical records at hand do not confirm this. The examiner stated that after testing performed at VA in June 2004, there was no evidence of hepatitis A and that the appellant had a positive hepatitis B surface antibody indicative of immunity from prior hepatitis B infection or hepatitis B immunization. Service connection for hepatitis C was denied by rating action dated in November 2005 and the Veteran appealed. In support of his claim, he submitted a March 2006 statement from a VA physician in the hepatitis clinic to the effect that a blood test performed in 2004 disclosed that he did not have hepatitis A disease or exposure. The Veteran was afforded another VA examination in September 2006 whereupon the examiner opined that there was little doubt that the appellant had hepatitis A in service, and that he did not have hepatitis B or C during active duty. It was unequivocally stated that the current diagnosis of hepatitis C was not the same hepatitis he had in service. However, as noted by the Board in its July 2010 remand, the September 2006 VA examiner did not address the March 2006 March 2006 VA physician's statement indicating that the Veteran did not have hepatitis A disease or exposure. The Veteran underwent a VA examination for hepatitis in August 2010. The physician reviewed the evidence and gave a detailed explanation of why he did not think the Veteran had hepatitis A in service. He also explained that the pattern of illness and the available laboratory data supported the diagnosis of hepatitis C rather than hepatitis A during active duty. In November 2011, the same physician reiterated his opinion, and noted that, while it was possible that the Veteran's post service IV drug use could have resulted in hepatitis C at a later time, he believed based on his analysis of the evidence that the Veteran's current hepatitis C is related to service. The above reflects that the Board found the September 2006 VA examiner's opinion inadequate because the examiner did not have all of the relevant data. In contrast, the August 2010 VA examiner had access to all of the relevant data and concluded that the Veteran has hepatitis C that is related to service, reiterating this opinion and specifically considering the post service IV drug use. As the August 2010 explained the reasons for his conclusions based on an accurate characterization of all of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. There is no contrary medical opinion in the record that was adequate and considered all of the relevant evidence. The weight of the evidence thus reflects that hepatitis C is related to service, and entitlement to service connection for this disability is therefore warranted. ORDER Entitlement to service connection for lumbar spine DDD with spondylosis is granted. Entitlement to service connection for hepatitis C is granted. ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs