Citation Nr: 1308912 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 06-38 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to April 1974, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, denied entitlement to service connection for residuals of a back injury. The Board remanded the Veteran's claim on appeal for further development in October 2008, April 2010, December 2011, and June 2012. FINDING OF FACT There is no competent evidence of record to show that the Veteran's current low back disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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 representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, the VCAA requires notice of what information and evidence not previously provided, if any, that is necessary to substantiate each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). A February 2006 VCAA letter from the RO informed the Veteran of all elements required by 38 C.F.R. § 3.159(b). A subsequent March 2006 letter provided him with notice in accordance with the Court's holding in Dingess. Regardless, in light of the denial of his service connection claim for a low back disability, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records (STRs) and available VA treatment records. While the Veteran alluded to receiving treatment for a back injury at Bien Hoa Airbase during his service, a search for corresponding treatment records yielded no results. Similarly, while he reported receiving VA treatment for back pain as early as 1977, only one instance of treatment was found in a November 1977 treatment report. Finally, while records of noted VA treatment in 2003 were not obtained, the Board notes that an October 2009 VA examination report specifically indicated that those records referred only to the Veteran's cervical spine and were not relevant to his lumbar spine disability which is the subject of this appeal. Thus, there is no prejudice to the Veteran in the Board's preceding to adjudicate his claim in the absence of these records. The Veteran has additionally been afforded multiple VA orthopedic examinations to determine the nature and etiology of his clamed low back disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the RO/AMC has substantially complied with the Board's remand directives as outlined in the multiple remands of his claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In these remands, the Board has primarily been concerned with making all reasonable attempts to obtain additional STRs and post-service treatment records pertaining to the Veteran's claimed low back disability, and obtaining an adequate medical opinion with respect to the etiology of the disability. In this regard, an April 2008 RO letter informed the Veteran that additional records pertaining to treatment at the Oklahoma City VA Medical Center (VAMC) in the year 1977 were not available, and a response received from the National Personnel Records Center (NPRC) in May 2010 indicated that no records were located pertaining to alleged treatment for back pain at Bien Hoa Airbase. Finally, the most recent, June 2012 VA examination report reasonably addressed the remand directives in the Board's June 2012 remand and resolved the Board's concerns with obtaining an adequate medical opinion regarding the etiology the identified low back disability. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating his low back disability claim on appeal. II. Service Connection The Veteran seeks entitlement to service connection for a low back disability that he contends was incurred during or as a result of his active service. He has specifically attributed his low back disability to lifting heavy radios during his service in Vietnam. He has also attributed his low back pain to an injury apparently sustained when lifting heavy objects while repairing a generator. He additionally alluded to sustaining an injury during service after falling from a tanker truck. A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr, 21 Vet. App. at 307; see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). "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)). In making all determinations, the Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis Considering first the current disability requirement for service connection, the Veteran has been afforded multiple VA examinations during the pendency of his appeal that have addressed his claimed low back disability. During a March 2007 VA joints examination, his diagnoses included degenerative arthritis of the lumbar spine. His October 2009 VA examination report noted a low back diagnosis of degenerative joint disease (DJD). The January 2012 VA examination report included a diagnosis of lumbar spondylosis. Accordingly, based on these examination reports, the Board finds that the current disability requirement for service connection has been satisfied. See Davidson, supra. With respect to the second required element for service connection, in-service incurrence of a disease or injury, a review of the Veteran's STRs reveals that he involved in a motor vehicle accident in March 1969, he did not, however, report having low back pain following the accident. Similarly he was noted to have completed physical training in June 1971 for a cervical strain, but no mention of the lower back was made. In short, his STRs do not provide any specific evidence of treatment for or a diagnosis of any low back disability during his service. Nonetheless, the Veteran has consistently reported that he suffered low back pain or a low back injury during his service while lifting heavy radios. In his December 2006 VA Form 9, he reported that he was treated for a low back strain while in Vietnam. In an April 2010 statement, he reported that he was treated for his low back injury while he was stationed at Bien Hoa Airbase in 1968. In a September 2011 statement, he reported that the injury occurred in middle of the year 1968. Similarly, he reported during his January 2012 VA examination, that he incurred a low back injury in about 1973 as a result of lifting a heavy object while repairing a generator while he was stationed at Tinker Air Force Base (AFB), Oklahoma. He indicated, however, that he did not require treatment for the injury. As previously noted, a May 2010 response from the NPRC revealed that after a search for records from Bien Hoa Airbase, records pertaining to the Veteran's treatment were not found. Even so, given the era of the Veteran's service and his consistent and credible reports of incurring low back injuries during his service and receiving subsequent in-service treatment following one injury, the Board will afford him the full benefit of the doubt and concede that the Veteran incurred at least one low back injury during his service. Thus, the second required element for service connection has been met. See Davidson, supra. Accordingly, the remaining question before the Board is whether there is a nexus between the Veteran's current low back disability and his conceded low back strain/injury during service. Here, the first post-service evidence of treatment for complaints of low back pain is found in a VA treatment report dated in November 1977. At that time the Veteran reported having back problems for a long time, and having back pain off and on, which, at times, radiated to his leg or hip. Range of motion testing at that time was good in all ranges and straight leg raise testing revealed negative results. The assessment was hypertrophic changes of the lumbar spine. Additional post-service treatment records for a low back disability are found in VA treatment records dated in January 2005 when the Veteran was diagnosed with severe osteoarthritis and spinal stenosis. During his March 2007 VA examination, the Veteran reported that more recently, his back pain began in 2002. He indicated that he believed he injured his back during his service as a result of falling off of a tanker truck. X-rays of his lumbar spine showed mild discogenic degenerative joint disease and osteopenia of the lumbar spine. The examiner did not provide an opinion regarding the etiology of the Veteran's lumbar spine disability at that time. Following the Board's October 2008 remand, the Veteran was afforded a subsequent VA spine examination in October 2009. Initially he indicated that he could not tell the examiner anything regarding his incurrence of a low back disability, but then afterward reported that he believed he incurred the injury in approximately 1968. He indicated that he could not relate the development of his low back pain to any specific injury but alluded that it must have been incurred as a result of lifting radios during his duties as a power production specialist. He reported that the radios weighed about 60-70 pounds. He then reported needing to go to sick call after once instance of back pain as a result of lifting the radios. He reported that he felt better after about one week and that he did not recall receiving medical treatment for his back during his remaining active service. He described his back pain as "coming and going" ever since. He also reported that he could not recall anything else regarding his back pain but that he believed relevant information was in his file. He finally reported receiving earlier treatment for back pain in 2002 or 2003, however after review of the relevant evidence, the examiner clarified that this treatment was for a cervical spine disability and did not reflect treatment of his lumbar spine disability. The examiner did not find evidence of treatment for a lumbar spine disability until the March 2007 VA examination report, which referenced X-ray findings of, inter alia, degenerative arthritis of the thoracic and lumbar spine, a compression deformity of T7-8, and osteopenia of the thoracic and lumbar spine. The VA examination report further referenced a later November 2009 MRI report which noted mild to moderate degenerative spondylosis from L3 to S1, worse at L5-S1, but noted no compromise to the neural foramina or spinal canal, and only mild facet arthropathy. Based on review of the evidence and examination of the Veteran, the examiner diagnosed degenerative joint disease of the lumbar spine. The examiner indicated that the onset was unclear as there was no documentation supporting the Veteran's account of back pain beginning in 1968 during service. The examiner concluded that it was less likely than not that the Veteran's current low back disability was related to his military service. The examiner based this opinion on a lack of evidence of record to substantiate the Veteran's report of experiencing back pain beginning in 1968. The examiner noted rather, that the first evidence of lower back pain was in 1977 when he first sought VA medical care, and that he did not have evidence of degenerative changes of his lumbar spine until his March 2007 VA examination. Therefore, the examiner concluded that there was no evidence to support the claim of low back disability beginning in the military. In its April 2010 remand, the Board instructed that additional efforts should be made to locate alleged records pertaining to in-service treatment for the Veteran's back, and that a new VA examination should be performed, if so indicated by the receipt of new evidence. A May 2010 response from the NPRC indicated that after a search for records, additional STRs could not be found relating to alleged in-service treatment. A new VA examination was nonetheless conducted in January 2012. During that examination, the Veteran again reported injuring his back while lifting radios in 1968, during service in Vietnam. The Veteran also reported injuring his back while stationed at Tinker AFB in 1973, while working on a generator. The examiner noted the Veteran's post-service employment history which included working as a roofer and sheet metal worker from 1974 to 1979, working in an electric power plant from 1979 to 1992, and working for a company building carport and patio covers, and constructing gutters from 1996 to 2005. The examiner also noted the Veteran's initial diagnosis of lumbar spondylolsis and degenerative disc disease in 2007. Recent, January 2012, X-rays revealed mild rotary dextroscoliosis of the lumbar spine, mild spondylosis from L3 to S1, most evident at L5-S1, degenerative joint disease and possible fusions of the bilateral sacroiliac joints, and vascular calcifications. Based on review of evidence of record and examination of the Veteran, the VA examiner opined that it was less likely than not that the Veteran's claimed low back disability was incurred in or caused by any in-service injury, event, or illness. The examiner indicated that while the Veteran reported in-service treatment for back injuries in 1968 and 1973, normal findings were noted with respect to his low back at separation, suggesting that the in-service injuries were temporary. The examiner noted that the Veteran reported being seen in 1977 for a low back condition but that those treatment records were not found. He also noted that the Veteran was able to work in an occupation requiring heavy manual labor from 1974 to 1992, such as roofing and construction, and that ongoing low back pain would have likely precluded his working in such occupations for a substantial period of time. The examiner further noted that spondylosis was a natural process of aging, seen in 10 percent of individuals by the age of 25 and in 95 percent by the age of 65, and thus provided the opinion that the Veteran's current spine disease was related to the normal aging process. In its June 2012 remand of the Veteran's claim, the Board noted that the January 2012 VA examiner's opinion was based in part on an inaccurate factual premise, that there was no evidence the Veteran was treated for a low back disability in 1977. The Board specifically noted that the November 1977 treatment report had indicated that the Veteran experienced episodic back pain, and thus concluded that a new VA medical opinion was necessary from the VA examiner in order to clarify the etiology of the Veteran's current low back disability. The Board also specifically indicated that the VA examiner must presume that the Veteran's statements of sustaining a low back injury in 1968 while unloading radio equipment were credible. Pursuant to the Board's remand instructions, an addendum to the VA examination report was obtained in June 2012. In the addendum, the VA examiner again opined that the Veteran's claimed lumbar spine disability was less likely than not incurred in or caused by his claimed in-service injury. The examiner noted that he reviewed the evidence of record and considered the Veteran's lay statements and verbal history in rendering the opinion. The examiner again noted the Veteran's reported low back injury in 1968 while in Vietnam and his subsequent report of an injury in about 1973 while stationed at Tinker AFB, but reiterated that normal findings on his January 1974 separation examination suggested that his in-service low back injuries were temporary in nature and not an ongoing condition. Moreover, the examiner remarked that the January 1977 treatment report from Oklahoma City VAMC, about 43 months after separation from service, showed treatment for "off and on" low back pain, with hip and leg pain, but did not mention any intercurrent injury or when the "off and on" pain began. Also the treatment report showed good range of motion, normal neurological examination and hypertrophic lumbar spine stenosis, suggesting that some type of X-rays or radiographic study was obtained, but was not indicated in the treatment paperwork. The final diagnosis at that time was simply low back pain, and indicated treatment with heat and Parfon Forte, a muscle relaxant, suggesting treatment for a muscular condition of the back. The examiner remarked that if the flares were an ongoing condition, the records did not offer insight into when the condition began that caused the flares. The examiner again noted that the Veteran was able to work in occupations requiring heavy manual labor form 1974 to 1992, including roofing and construction, and that an ongoing low back condition would have more than likely precluded work in such occupations for any substantial period of time. He noted that there was no evidence of an intercurrent low back injury by verbal history or noted in medical records for treatment for such a condition. He also noted that the Veteran was diagnosed with degenerative arthritis in 2007, with a history of onset of pain in 2002, about 25 years after being treated at the Oklahoma City VAMC. Similar treatment records showed degenerative changes in the cervical spine in 2003. This widespread spine disease was suggestive of changes related to the aging process rather than trauma in the low back, especially given the Veteran's post-military occupational history. The examiner then again noted that spondylosis was a natural process of aging, seen in 10 percent of individuals by the age of 25 years, and in 95 percent by the age of 65 years. Thus, based on all the noted evidence, the examiner concluded that it was more than likely that the Veteran's current lumbar spondylosis and degenerative disc disease was related to the normal aging process, and less likely than not causally related to his in-service low back injuries and complaints. The Board finds that the June 2012 VA examiner's opinion, which fully considered all evidence of record, including the Veteran's lay assertions, was well-informed, well-reasoned, and fully articulated. See Nieves-Rodriguez, 22 Vet. App. at 304. Based on examination of the Veteran and a thorough review of the record, the opinion clearly determined that the Veteran's low back disability was more than likely a result of the aging process rather than as a result of his remote in-service back injuries. Therefore, the Board finds that the June 2012 VA examiner's opinion is entitled to greater probative value than the Veteran's lay contentions regarding the etiology of his claimed low back disability. In reaching this determination, the Board notes that there is no competent evidence of record to support the Veteran's contention that he has a current low back disability which is causally related to his conceded in-service low back injuries. While the Veteran may be sincere in his belief that his low back disability resulted from his conceded in-service injuries, he is not competent to provide an opinion regarding the etiology of his currently diagnosed low back disability as such requires medical expertise. See Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In this case, there is simply no competent evidence of record, medical or otherwise, to support his contentions. Accordingly, based on a lack of competent evidence of a nexus between the Veteran's conceded in-service back injuries and his currently diagnosed lumbar spine disabilities, the Board cannot make a finding that service connection is warranted for a low back disability. See Davidson, supra. In sum, the weight of the evidence is against a finding that the Veteran's low back disability is related to his active service. Although he currently suffers from a low back disability, and although his in-service low back injuries have been conceded, the June 2012 VA examiner's thorough opinion weighs heavily against his contention that his current low back disability is the result of any in-service disease, event, or injury. For these reasons, the Board concludes that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disability, and that therefore, the benefit of the doubt rule, enunciated in 38 U.S.C.A. § 5107(b), is not for application. Entitlement to service connection for a low back disability, therefore, must be denied. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs