Citation Nr: 1308568 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-00 344 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to January 1950. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision that denied service connection for a low back disability. The Veteran timely appealed. In May 2012, the Veteran testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In September 2012, the Board remanded the matter for additional development. While the Veteran's representative has requested another remand to ensure that the Veteran's Virtual VA file was available to the VA physician providing the opinion, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's Virtual VA file, in this case, primarily reflects continuing VA treatment for chronic low back pain and bilateral lower extremity pain secondary to multi-level degenerative disc disease. The February 2013 supplemental statement of the case lists evidence as including the VA treatment reports, dated from May 2002 to September 2012, and the October 2012 medical opinion-which, the Board finds, is consistent and in substantial compliance with the prior remand. Hence, further remand of the matter is not warranted. 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). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, chronic low back strain and compression fracture had their onset in service. 2. Degenerative disc disease of the lumbar spine was not present during active service or within the first post-service year, and is not otherwise related to service. CONCLUSION OF LAW 1. Chronic low back strain and compression fracture were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Degenerative disc disease of the lumbar spine was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a November 2007 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the November 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examination and opinion in connection with the claim on appeal, reports of which are of record and appear adequate. The opinion expressed therein is predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Here, the Veteran's enlistment examination in March 1946 reveals no defects; the spine and extremities are shown as normal. With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). The Veteran contends that he injured his lumbar spine on multiple occasions during active duty. He described the initial incident as occurring during training in an ocean area where he fell off a tower comparable to the height of a ship. The Veteran and a few other members of his unit had climbed to the platform on top of the tower. There was some pushing, and the Veteran fell off the platform and hit the water sideways on the left. He reportedly hurt at the time, and was given some pills. The pain would come back at times; and when it got bad, the Veteran went to sick bay and got more pills. He did not want the incident to interfere with his Navy career. Other injuries to his lumbar spine involved heavy lifting, and falling off a motorcycle. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Service treatment records show that the Veteran reported injuring his back while lifting a heavy crate in July 1946. At that time he complained of severe backache. Clinical evaluation revealed no back tenderness, and full unrestricted motion. There were no neurological changes; and complaints were not in proportion to physical findings, which were minimal. X-rays also were negative. Records show that the Veteran was struck by an automobile while riding his motorcycle in December 1947. He sustained minor abrasions of his left foot and left hand; his wounds were dressed at a hospital, and the Veteran was checked and released. Records also show that the Veteran allegedly strained his back in April 1948 while picking up a sack of potatoes. Clinical evaluation at the time revealed some muscle spasm on the left side in small of his back. Heat was applied, and the Veteran returned to duty. In June 1949, the diagnosis was changed from left sacro spinal strain to left trapezius muscular strain. Records show that the Veteran at the time sustained injury on starting a motorcycle. A scoliosis of the spine, without muscle spasm and without limitation of motion, was noted in July 1949. At the time of the Veteran's discharge examination in January 1950, no significant abnormalities of the spine were noted. The Board finds the Veteran's lay testimony, as corroborated by service treatment records, to be credible for purposes of establishing an incident in service. Post-service records include a May 1957 letter from a private physician, indicating that the Veteran reported having pain and weakness in his back when he released from active service; and that he still suffered from low back pain and weakness. MRI scans of the Veteran's lumbosacral spine revealed mild broad-based disk bulge and bilateral facet hypertrophy of L3-L4 and L4-L5, greater on the left, without significant central or foraminal narrowing in 2005. VA treatment records revealed numbness in a stocking distribution in both lower legs in February 2007. During a January 2008 VA examination, the Veteran gave a history of sustaining back pain jumping off of a tower in a training exercise in 1946. He reportedly jumped the distance of two stories and developed low back pain, and was thought to have a sprain. He reportedly was treated with pills, which helped. He then had an episode of back pain from heavy lifting in July 1946, and again was treated; X-rays at the time were normal, and no diagnosis was rendered. The Veteran reported having a measure of back pain for the rest of his time in active service. The Veteran reported working post-service for a tire company for many years, and then working with his son in construction. He did not do any heavy lifting. The Veteran also reported being treated by a chiropractor in 1954, and then by a local doctor who gave with traction, without any beneficial effect. The Veteran continued to take medication daily for back pain. Scoliosis with convexity to the left at the lumbar level and multi-level degenerative disc disease were noted in 2007. Following examination, the VA examiner opined that the documentation of injuries in the back from lifting and from jumping off a tower made it speculative, at best, that the Veteran's current back problem was incurred in active service. The VA examiner also opined that the Veteran's claims file and history did not show any evidence of pre-existing back problems going into active service. VA treatment records, dated in March 2008, show that the Veteran complained of having back pain for about fifty years. His pain had gotten better and worse over that time, but it had been durable. The Veteran reported that he fell from a height in active service, which hurt; and that he was planning to make a career of the Navy at that time, and was concerned that he might not be able to stay if he went to sick bay. He reported that no similar incident occurred in his lifetime. Examination revealed an abnormal curvature to his lumbar spine. A VA physician suggested that the Veteran had an ancient fracture of the right cephalad side of his second lumbar vertebrae, which corresponded quite well with his history. The Veteran also had degenerative changes and an abnormal curvature to his lumbar spine, which looked to be traumatic in nature. The VA physician opined that the Veteran's description of a significant injury while a young man in the Navy was a very plausible explanation for his current condition. VA treatment records, dated in April 2008, include impressions of degenerative disc disease of the lumbar spine; compression fracture; degenerative joint disease; and lumbar facet arthropathy. An impression of left lumbar radiculopathy was questionable. More recent records show continuing treatment for chronic low back pain and bilateral lower extremity pain, secondary to multi-level degenerative disc disease. In May 2012, the Veteran testified that he continued to have low back pain post-service; and that he had an option to fuse a disc in his back, but he decided against fusion so that he could continue working and support his family. The Veteran also testified that he never had any problems at all with falling off a horse prior to active service, and that his doctors' records of treatment in the 1950's and 1960's are no longer available. In June 2012, the Veteran's adult daughters submitted statements, indicating that they could not remember a time when the Veteran did not have back problems. The Veteran's wife also reported that the Veteran had a long history of back problems. Following the Board's September 2012 remand, another VA physician reviewed the Veteran's claims file in October 2012, including the January 2008 VA examination report. After describing each of the back injuries noted in service treatment records, the VA physician opined that it was less likely as not that the current lumbar condition was caused by, aggravated by, or the result of active military service. In support of the opinion, the VA physician reasoned that the Veteran's current lumbar disability was related to degenerative joint and degenerative disc disease, which are chronically progressive, age-related disorders. The VA physician found no evidence of chronic lumbar conditions in service treatment records, and X-rays were negative. The first evidence of lumbar disc disease was in 2007. The Board notes that, at the time when the Veteran sustained injury on starting a motorcycle in June 1949, he reported that he first injured his back in 1939 when he was thrown from a horse and fell on a rail fence. While the October 2012 VA physician's opinion is persuasive and gives a reasoned discussion for the opinion of a pre-existing low back disability, the Board finds that the overall evidence does not clearly and unmistakably establish that the Veteran's low back disability existed prior to service and was not aggravated during service, in order to rebut the presumption of soundness. Service treatment records reflect that the Veteran's left sacro spinal strain diagnosed in June 1949 did not exist prior to the Veteran's enlistment. Moreover, the October 2012 VA physician's finding of no aggravation based solely on service treatment records is contradicted by the Veteran's and his family's credible lay statements of ongoing low back pain during active service and post-service. These lay statements are supported by findings of abnormal curvature of a traumatic nature made by a VA physician in March 2008. In fact, the evidence is unclear as to the degree of trauma to the Veteran's lumbar spine from his lifting injuries and diagnosed strains in active service. In this regard, the opinion as to whether the Veteran's low back disability was aggravated in service is not undebatable. Under these circumstances, the Board finds that the presumption of soundness has not been rebutted. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the October 2012 physician's opinion to be persuasive in finding that the current degenerative joint and degenerative disc disease of the lumbar spine were age-related progression, rather than from events in active service. The first X-ray showing of degenerative disc disease was in 2007, several decades after the Veteran's discharge from active service. While the Board has considered the VA opinion to be highly probative on the matter on the etiology of his current degenerative disc disease, it does not account for evidence of abnormal curvature and compression fracture identified by the March 2008 VA physician. The Veteran has claimed continuity of symptomatology with regard to his low back complaints since service, and the findings of abnormal curvature and compression fracture more recently are consistent with the complaints and findings of low back problems during service and after service. These symptoms have been attributed to the tower incident. Resolving all doubt in the Veteran's favor, the Board finds that chronic low back strain and compression fracture had their onset in service. See 38 C.F.R. § 3.102 (2012). Regarding the Veteran's degenerative disc disease of the lumbar spine, there is no competent evidence of record that attributes degenerative disc disease to active service or to in-service back injuries. Nor is the Veteran shown to have the medical expertise to diagnose or determine the etiology of degenerative disc disease. While the Veteran's lay statements regarding the circumstances of his in-service injuries and his continuity of symptomatology since that time have been accepted as credible and persuasive, he is not shown to be competent to render an opinion as to the nature of his underlying injuries in service, or to identify which specific current disorders the spine are related to his in-service injuries or responsible for the ongoing symptomatology he has experienced since those injuries. On these matters, the Board finds the competent medical evidence of record to be the only probative evidence of record. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for degenerative disc disease of the spine. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, as discussed, the Board further concludes that service connection for chronic low back strain and compression fracture is granted. ORDER Service connection for chronic low back strain and compression fracture is granted. Service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs