Citation Nr: 1308312 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-00 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to direct service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder as secondary to a service-connected right ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the RO. In July 2010, the Veteran testified at a personal hearing conducted before the undersigned Acting Veterans Law Judge (VLJ) at the RO. A copy of the transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of secondary service connection is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's low back disorder is not related to his military service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a June 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for the claimed low back disorder, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the June 2007 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records (STRs) as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded a VA examination in November 2011 in connection with his claim for service connection for the claimed low back disorder. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examination and medical opinion obtained in this case are adequate, as they are predicated on a full reading of the STRs as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In addition, during the hearing the AVLJ clarified the issue, determined that there may be additional evidence and addressed the Veteran's manifestations. Such actions supplement VCAA and complies with 38 C.F.R. § 3.103 (even if not applicable). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. This appeal was remanded by the Board in September 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain VA and private medical records and provide the Veteran with an examination. This development was completed. As is further addressed below, the examination was adequate regarding the Veteran's direct service connection claim; regarding the secondary service connection claim, the examination is inadequate and the claim is remanded below. Accordingly, the Board finds that there has been compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's STRs document that in May 1969 he sustained a low back strain while picking up crates. X-ray results of the thoracolumbar spine showed a normal lumbar spine. Otherwise, there were no complaints of, treatment for or diagnosis of symptoms related to a low back disorder. The March 1970 report of separation examination reflects that clinical evaluation of the Veteran's spine was normal. In an October 2006 VA treatment record, the Veteran complained of severe back pain from 3 cracked lumbar vertebrae. The Veteran stated that he had no back problems prior to a recent fall. A January 2007 report of MR scan of the lumbar spine showed degenerative changes most marked at the L5/S1 level where the disc was desiccated and collapsed surrounded by degenerative endplate changes that indicated subacute degenerative disease and mild bulge that mildly narrows both neuroforamina. Otherwise there was no canal stenosis or foraminal stenosis. There was facet joint hypertrophy at the caudal levels. In a July 2007 statement, a private physician reported that the Veteran suffers with constant back pain that radiates down his right leg and restricts, to a major degree, his activities. In an August 2007 VA treatment record, the Veteran reported that he fell on his back when his ankle gave out. His chief complaint was low back pain that radiated down his right leg to the ankle. On examination, the diagnoses were lumbar radiculopathy, degenerative disc disease, and degenerative joint disease. July 2008 CT of the lumbar spine showed extensive degenerative changes which appeared most prominent at L5-S1, including 5 mm of retrolisthesis of L5 on S1 and extensive atherosclerotic calcifications in the abdominal aorta. In an addendum, the VA radiologist noted extensive degenerative disc disease at the L5-S1 disc space with severe disc height loss and vacuum phenomena and slight degenerative retrolisthesis of L5 on S1. No fracture was seen. A September 2010 VA treatment record reflects the Veteran's complaint of intense, periodic lumbar spinal pain with occasional limited range of motion. Examination showed moderate lumbar lordosis, mild spinal curve to the right and full range of motion. Diagnosis was rule out ankylosis spondylitis. September 2010 x-ray of the lumbar spine showed a vacuum phenomenon at L5-S1 disc space which was narrowed due to degenerative change. There was no spondylolysis or spondylolisthesis. The sacroiliac joints appeared normal. There were no compression fractures or destructive lesions. Slight sclerotic change was noted at the L5-S1 facet joint on the right. X-ray showed mild scoliosis but no destructive lesions, paraspinal masses or compression fractures. October 2010 VA treatment record documents the Veteran's complaint of back pain and stiffness as a result of back injury sustained in a fall where he fractured 3 vertebrae. Examination showed tenderness at the lumbar spine and range of motion limited by pain. In the report of November 2011 VA examination, the examining physician recorded the Veteran's reported medical history. In this regard, the Veteran reported that in 2006 his right ankle gave way, causing him to fall flat on his back. Since that injury, he had continuous lumbar pain which increased with standing over five minutes, walking over a 1/2 block and with any bending or lifting. He complained of daily episodes of pain with radiation down the posterior right thigh and leg to the ankle and down the lateral left thigh and leg. The episodes of back pain usually occurred with any twisting motions. The radiating pain occurred on a daily basis and generally lasted until he took his current pain medication. On objective examination, the diagnosis was chronic lumbar degenerative joint and disc disease with L5 radiculopathy. The examining physician indicated that the low back disorder was less likely than not (less than 50 percent probability) incurred in or caused by a claimed in-service injury, event or illness. In this regard the physician explained that there was only a single episode of mechanical low back pain in service, diagnosed as lumbar strain, in May 1969 with no further evidence of complaints or related sequelae. The examiner further indicated that the low back disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's right ankle disability. The physician explained that the Veteran was currently suffering from an advanced degenerative disease of the lumbar spine that required many years to develop and did not occur as the result of the fall in 2006. The examining physician noted that there were no records of any medical treatment which substantiated the Veteran's contention that the fall occurred as the result of his right ankle giving way. The physician noted that at his Board hearing the Veteran testified that he fell often but the physician observed that the Veteran was very vague about the frequency and severity of the fall injuries. Regardless, the physician commented that falls result in fractures but are not the cause of degenerative spine disease which was a disease of life and gradually progressive over a lifetime. The physician concluded that the current lumbar spine disorder was the result of the last 40 years of living a normal life and was the result of chronic daily weight bearing caused by normal living. Given its review of the record, the Board finds that service connection for the claimed low back disorder is not warranted. Although there is a current low back disability and an in-service low back strain, the preponderance of the probative evidence of record demonstrates that there is no relationship between the two. In the November 2011 report of VA examination, the examiner explicitly indicated that the Veteran's low back disorder was less likely than not (due to or the result of service. The examiner provided the supporting rationale that there was only a single episode of mechanical low back pain in service, diagnosed as lumbar strain, in May 1969 with no further evidence of complaints or related sequelae, that the disorder required many years to develop, and that the current lumbar spine disorder was the result of the last 40 years of living a normal life, such as the result of chronic daily weight bearing caused by normal living. The Veterandoes not assert continuous symptoms since service discharge. Additionally, there is no diagnosis of arthritis within one year of service discharge. To the extent that any of the Veteran's lay statements assert that his low back disorder is related to service, he is not competent to provide that opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that lay evidence may not be categorically dismissed as not competent regarding questions of medical etiology). This is because the existence and causation of degenerative joint and disc disease is a complicated medical issue that requires knowledge of disease and degenerative processes and specialized examinations such as an x-ray and magnetic resonance imaging reports. See 38 CFR § 3.159(a)(2) (2012) (providing that lay evidence is competent where it does not require specialized education, training, or experience). Accordingly, the probative evidence of record, to include the VA examiner's opinion, outweighs the Veteran's lay assertions. Finally, the Board is aware that the Veteran has attacked the adequacy of the November 2011 VA examination, but the Board finds that the examination was adequate. In this case, the examining physician reviewed the claims file, which included the Veteran's STRs, private treatment records, VA treatment records and lay assertions; described the injury the Veteran claimed happened to his back; physically examined the Veteran; provided clinical findings; entered a diagnosis; provided a medical opinion; and, provided a rationale for his medical opinion, which was based on a review of the medical records, taking into account the Veteran's history and performing examination. The Veteran has not provided explanation of how the examination was performed in an insufficient manner other than to suggest that it was too short. It is clear that the examining physician fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current low back disorder was related to causes other than the Veteran's military service. Thus the Board finds that the examination was fully adequate for an informed decision. For the foregoing reasons, the Board finds that the claim of direct service connection for a low back disorder must be denied. 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to direct service connection for a low back disorder is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's secondary service connection claim. Remand is required to obtain current VA treatment records and an addendum etiological opinion. A prior Court or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, __ Vet. App. __, No. 10-3031, 2013 WL 151154, *4-5 (Jan. 15, 2013). Here, in a November 2011 VA examination, the examiner concluded that the Veteran's low back disorder was not due to service and was not caused by the right ankle disability. The examiner did not, however, expressly state whether the low back disorder was aggravated by the right ankle disability. Where an examiner finds that a service-connected disability did not cause a claimed disorder and that the claimed disorder was more likely related to other factors, it isn't clear that aggravation has been addressed. El-Amin, 2013 WL 151154, *4-5. Accordingly, remand is required for a VA addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding from a VA examiner. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. If the examiner determines an examination is required, such an examination shall be provided. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder was aggravated by his service-connected right ankle. If the examiner finds that the disorder was aggravated by the right ankle disability, or any residuals or complications thereof, the examiner must provided an opinion regarding the baseline level of severity of the low back disorder prior to onset of aggravation. 3. Review the VA examiner's report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs