Citation Nr: 1308944 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 05-15 050 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1976. This case was before the Board of Veterans' Appeals (Board) in May 2008, September 2010, and June 2012 and remanded for further development. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denial of entitlement to service connection for a low back disorder. Thereafter, the case was returned to the Board for further appellate action. In February 2008, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The Veteran's low back strain in service was acute and transitory and resolved without residual disability. 2. The Veteran's chronic low back strain was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 3. The preponderance of the evidence is against a finding that the Veteran's low back strain is proximately due to or has been aggravated by his service-connected residuals of a left knee meniscectomy. CONCLUSIONS OF LAW 1. The Veteran's lumbosacral strain is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The criteria for secondary service connection for lumbosacral strain have not been met. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a low back disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In August 2002, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records and records reflecting his treatment from December 1976 to December 2012. In September 2002, October 2004, August 2007, July 2009, October 2010, and September 2012, VA examined the Veteran to determine the etiology of any low back disability. In whole, the VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran , documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Claim Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Generally, for a grant of service connection, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during active service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Apart from the foregoing law and regulations, 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). The Veteran contends that his low back disorder was the result of an injury sustained in service in October 1973. Therefore, he maintained that service connection was warranted on a direct basis. In the alternative, the Veteran contends that his low back disorder is proximately due to or has been aggravated by his service-connected residuals of a left knee meniscectomy and that service connection is warranted on a secondary basis. After carefully considering the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disorder on any basis. Accordingly, the appeal will be denied. The Veteran is competent to report what he experienced in and after service. For example, he is competent to report when the initial manifestations of his low back pain occurred and whether or not they have been chronic in nature. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012)((the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). The Veteran's September 1971 service entrance examination is negative for any complaints or clinical findings of a low back disorder of any kind. Therefore, his back was presumed to be in sound physical condition at the time he entered service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The Veteran's service treatment records show that in October 1973, he reported low back pain, without radiation, in the sacral area. A physical examination and X-rays were normal, and the impression was low back strain. Despite that impression, he completed his remaining three years of active duty without any complaints or clinical findings of a low back disorder of any kind. The Veteran's service treatment records, such as those dated in July and September 1974 and July 1975, show that he continued to play football, and in June 1976, they show that he also played baseball. On the report medical history, completed in conjunction with his June 1976 service separation examination, he responded "no", when asked if he then had, or had ever had, recurrent back pain. That response was supported by the physical examination which showed that his spine was normal. The Veteran did not complain of back pain again, until a VA examination in April 1989, more than 15 years, after his episode of low back strain in service. The Veteran's assertion that he has had a continuing back disorder since service is therefore not probative. Instead, the evidence indicates that his low back strain in October 1973 was an isolated incident which was resolved without residual disability. This conclusion is further supported by the fact that he did not file a claim of entitlement to service connection for a low back disability until 2002, almost 30 years after the reports of low back strain in service. The normal medical findings at the time of the Veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)(a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Forshey v. West, 12 Vet. App. 71 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Veteran was examined by VA to determine the nature and etiology of any low back disorder found to be present. In October 2004, a VA examiner stated that the Veteran had experienced low back pain in service, which was infrequent at first but which progressed to the point that it had become present on a daily basis. However, without resort to speculation, the VA examiner was unable to say whether the Veteran's back disability was due to his military service; nor did the examiner account for the fact that the Veteran's service separation examination indicated a denial of such symptoms by the Veteran. The Veteran was reexamined by the same VA examiner in July 2009. Following that examination, the examiner diagnosed chronic lumbosacral strain. She noted that that there was no indication in the Veteran's claims folder that the back strain sustained in service had left any residuals or was a chronic condition. The VA examiner also noted that there was little information in the Veteran's chart to indicate that the Veteran's back disorder had been chronic since the military. The examiner concluded that it was less likely than not that the Veteran's lumbosacral strain had been caused or aggravated by this lumbar strain in service. A grant of direct service connection is not warranted as the preponderance of the evidence is against a finding that the Veteran's current low back strain had had its onset in service. However, that does not end the inquiry. In the alternative, the Veteran maintains that his low back disorder is proximately due to or has been aggravated by his service-connected residuals of a left knee meniscectomy. He contends that his service-connected left knee disorder causes an antalgic gait, which, in turn, aggravates his back. In November 2002, a VA physician opined that it was at least as likely as not that the Veteran's back disorder was due to the posture and ambulation problems associated with the Veteran's service-connected residuals of a left knee meniscectomy. However, physician did not provide any rationale for his opinion including whether the Veteran's non-service-connected right knee disorder had any role in his back disorder. Sklar, supra. Therefore, VA examined the Veteran to determine whether the Veteran's back disorder was proximately due to or had been aggravated by his service-connected left knee disorder In July 2009, a VA examiner opined that the Veteran's low back disorder had not been caused or aggravated by his left knee disorder. She reached that opinion on the basis that the Veteran was claiming that his back disorder was directly due to his back injury in service, rather than his service-connected left knee disorder. That is - the VA examiner essentially based her denial of secondary service connection on the Veteran's theory of the claim, rather than the totality of the evidence. Not only is the Veteran arguing for direct rather than secondary service connection, it must be emphasized that he does not have the requisite medical training or experience to render a competent opinion as to the etiology of his back disorder. Therefore, the VA examiner's opinion is of no probative value as to the secondary theory of entitlement. In October 2010, the Veteran was reexamined by the July 2009 VA examiner. Following the examination, the VA examiner stated that it was possible that the Veteran's back disability had been aggravated by his service-connected left knee disability. However, she noted that she could not give a definitive opinion without resort to speculation. As noted above, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert, supra. Accordingly, the opinion of the October 2010 VA examiner also lacks probative value. Due to the lack of/reduced probative value from the foregoing VA examinations and VA physician's opinion, the Veteran was examined by a different VA examiner. During the examination, examiner noted that the Veteran used a walker but that he did not ambulate with a limp. However, the VA examiner also noted that the Veteran's spine was symmetrical with no postural abnormalities. X-rays revealed no acute osseous abnormality of the lumbar spine. They showed a normal spinal alignment with preservation of the lumbar vertebral body heights and intervertebral spaces. There were multiple endplate osteophytes at multiple levels and moderate to severe facet arthropathy at the lumbosacral junction. There was also patchy aortic calcification. The diagnosis was lumbar strain. Due to the lack of pelvic imbalance and the lack of an antalgic gait, the examiner concluded that the Veteran's service-connected left knee disorder had not aggravated his back disorder. Unlike the opinion of the VA physician in November 2002 and those of the VA examiner in July 2009 and October 2010, the most recent VA examiner provided an opinion supported by rationale which was not speculative in nature. Therefore, that opinion has probative value and militates against the Veteran's claim. The only other evidence to the contrary comes from the Veteran - however, he is not competent to diagnoses a cause of his disorder. The preponderance of the competent, probative evidence of record is therefore against a finding that the Veteran's low back disorder is proximately due to or aggravated by his service-connected left knee disorder. Service connection for a low back disorder on a secondary basis is therefore denied. In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, because the preponderance of the competent, probative evidence is against the Veteran's claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs