Citation Nr: 1309345 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-22 083 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for lumbar spine osteoarthritis with leg pain (a "low back disability"). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from May 1966 to May 1986, including service in Vietnam. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2004 rating decision. The matter was previously before the Board in December 2007, August 2010, and July 2012, but was remanded for additional development. The development directed by the July 2012 Board remand has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDING OF FACT The weight of the evidence is against a finding that the Veteran's back disability either began during or was otherwise caused by his military service. CONCLUSION OF LAW Criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for a lumbar spine disability, which he believes is the result of a hard landing by a helicopter that he was riding in following evacuation from a firefight in Vietnam. In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Based on the operation of the "combat presumption" the Board has accepted the Veteran's account of experiencing a hard landing in service while riding in a helicopter in 1971. As such, an in-service back injury is conceded; moreover, the Board acknowledges that the Veteran currently has a chronic back disability. However, as will be discussed, an injury in service and a current disability alone are insufficient to establish service. Rather, service connection requires some evidence connecting the current disability to the injury during military service. To this end, the Veteran has consistently argued that his current back problems are the result of this helicopter accident. He believes that his complaint at the time of his separation physical shows that the onset of his back disability occurred in service, and he believes that his current disability is consistent with a hard landing years earlier. As noted, the Board has conceded the fact that the Veteran experienced a hard landing of a helicopter while in service. However, the Veteran's service treatment records are silent for any treatment for injuries sustained in such a landing in or around 1971. In fact, there is no in-service record either describing an injury related to a hard helicopter landing or describing an actual back injury. Moreover, on physical examinations in 1972, 1974, 1977, 1979, 1980, and 1982 the Veteran's spine/other musculoskeletal was found to be normal; and on medical history surveys completed in 1977 and 1979, the Veteran specifically denied either experiencing, or having experienced, any recurrent back pain, while noting that he had experienced several other conditions. Additionally, while no service treatment record mentioned any back injury in service, there were numerous references to a motor vehicle accident in 1965, prior to enlistment, in which the Veteran experienced a cervical spine whiplash injury. On a medical history survey completed in October 1983, the Veteran noted a history of recurrent back pain, which the medical officer described as "functional". A physical examination at that time found the Veteran's spine to be normal. On a medical history survey completed in conjunction with the Veteran's separation physical in April 1986, he once again indicated a history of recurrent back pain, which the medical officer indicated was in reference to occasional lower back pain with radiation into the right leg approximately twice per year. The medical officer specifically stated that no history of a back injury was given. Moreover, the Veteran's separation physical found his spine to be normal. As such, it is not disputed that the Veteran may have experienced periodic back pain in service, but VA does not generally grant service connection for symptoms alone, such as pain, without a clinically ascertainable disorder as a basis for those symptoms. Rather, VA needs to identify a disability, not symptoms of a disability; and in this case, the Veteran's physical examination at separation did not actually show the presence of a chronic back disability. Moreover, while the Veteran has essentially asserted that his back disability began in service and has continued to the present time, the fact remains that he did not seek any treatment for his back for many years after service, as the earliest back treatment is not shown until approximately 1999. References to degenerative joint disease and degenerative disc disease were shown in the Veteran's claims file as early as 1995, but these statements were in regard to his neck or cervical spine, not to his lumbar spine. This is relevant in that it was well-documented in the Veteran's service treatment records that he injured his cervical spine in a motor vehicle accident prior to enlistment, and service connection has already been considered and denied for a cervical spine disability. As such, nearly a decade and a half elapsed between the Veteran's separation from service and his receipt of lower back treatment. Also weighing against the Veteran's assertions of continuity is the fact that he filed for service connection for multiple disabilities in August 1986, just months after separation from his lengthy military service, yet he failed to file a claim at that time seeking service connection for any back problems. In fact, the Veteran did not seek service connection for a back disability until 2003, approximately 17 years after he separated from military service. In April 2003, the Veteran wrote that he had chronic osteoarthritis in his lumbar spine which he asserted had progressed since service and had finally been diagnosed by an MRI at Wilford Hall Medical Center. In September 2003, the Veteran wrote that the osteoarthritic condition in his lower lumbar region had existed for many years, which he reported treating with over the counter medication. However, these assertions are undermined by the evidence of record as described above. Nevertheless, given the complaints of back pain which were recorded in service and the current diagnosis of a back disability, VA obtained several medical opinions to address the etiology of the Veteran's currently diagnosed back disability. In September 2009, the Veteran underwent a VA examination at which he described the rough helicopter landing in service. The examiner noted that imaging in September 2009 showed a L1 fracture that had not been seen on an earlier study in March 2008. Lumbosacral facet arthrosis was seen, as were degenerative changes in the right sacroiliac joint and bilateral hips. The examiner then opined that because the Veteran's lumbar osteoarthritis was diagnosed in service, it was at least as likely as not related to service. However, in an August 2010 remand, the Board observed that the service treatment records did not actually show a diagnosis of osteoarthritis of the low back; and, a conclusion, even one reached by a health care professional, is not probative without an accurate factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Moreover, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Given the fact that the conclusion reached was not supported by the service treatment records, the Board remanded the Veteran's claim to obtain another medical opinion. In September 2010, the Veteran underwent a second VA examination. The examiner reviewed the claims file, noting the Veteran's complaints of occasional back pain at separation, but finding no suggestion of osteoarthritis in the service treatment records. The examiner noted the Veteran's assertion of an injury in 1971, but observed that general medical examinations in 1977 and 1979 did not show any complaints of lower back pain (and as documented above there were multiple other physical examinations in service which also found the Veteran's spine to be normal). The examiner noted that the first record of complaints of back pain documented by x-ray studies was in 2008, meaning that there was a nearly 40 year period after the Veteran's reported hard landing in 1971. As such, the examiner found that there was no history of documented, continuing complaints or treatments to indicate a chronic disabling conditions. The examiner concluded that the recent evidence documented current back problems, but did not establish the basis for a nexus sufficient for service connection. The examiner explained that the more common etiologies for osteoarthritis included age, obesity, deconditioning, heredity, ethnicity, concomitant health issues, subsequent trauma or intercurrent injury, life style choices, and post-service occupation. In July 2012, the Board remanded the claim again to ensure that the examiner gave full consideration to the relevance of the hard helicopter landing the Veteran was involved in during service. In August 2012, the examiner considered the Veteran's case for a second time. He diagnosed the Veteran with a L1 compression fracture, degenerative disc disease, and bilateral S1 radiculopathy. The examiner also reviewed the Veteran's history with him, noting that he was a poor historian, except for his insistence that his back injury occurred during service. Specifically, the Veteran once again described injuring his back during a hard helicopter landing in Vietnam in approximately March 1971. The examiner noted that the Veteran continued to serve until 1986, meaning that he was in the service for an additional 15 years after the alleged helicopter incident. The examiner noted that the service treatment records were negative for any back treatment during Vietnam, which is consistent with the Veteran's assertion that he did not seek any treatment at that time. The Veteran first complained of back pain in 1983 on a general medical examination, at which time the back pain was felt to be "functional". The examiner noted that the Veteran had not complained of any back pain at general medical examinations in 1977 and 1979, both of which came after the reported helicopter crash. On the Veteran's separation physical in 1986, occasional lower back pain and right leg pain was noted, but it was not related to any specific event during the Veteran's military service, and there was no history of any back injury given. The examination report noted that the pain reportedly occurred twice per year. The examiner observed that in 2008, the Veteran had fallen from a tree and injured his lower back. A CT scan at that time showed a L1 compression fracture, with some posterior involvement. It was noted at that time that the Veteran had degenerative disc disease. The examiner stated that the L1compression fracture occurred approximately 22 years after the Veteran's separation from service, and noted that there was no medical record for treatment of lower back pain between the 1971 helicopter crash and a 1983 medical examination, a period of 12 years. The examiner acknowledged that the Veteran's separation physical in 1986 mentioned occasional lower back pain, but he noted that no relation to a specific military injury was noted and there were no documented complaints, or x-ray studies of the Veteran's lumbar spine between 1986 and 2008. There was no history of continuing complaints or treatments to indicate a chronic disabling condition. The examiner explained that the Veteran's history of a helicopter crash had been accepted as true, but the subsequent evidence did not show continuing complaints or treatment until his compression fracture after falling from a tree. As such, the examiner concluded that it was less likely than not that the Veteran's current back disability either began during or was otherwise caused by his military service, to include as a result of the helicopter crash therein. This opinion was grounded in the evidence of record, it was provided with a full understanding of the Veteran's medical history, and it has not been questioned by any subsequent medical opinion. Moreover, the examiner addressed the question posed by the Board and he provided a complete rationale for his conclusion. As such, this opinion is found to be highly probative and entitled to great weight. To the extent that the opinion asserts that the evidence did not show treatment until his compression fracture after falling from a tree, the evidence did show some earlier complaints of back pain, and indeed, the Veteran filed his claim in 2003. However, the examiner's opinion was premised on the fact that no treatment was received by the Veteran for a number of years after service, which is a position that is well-supported in the record. As such, to the extent that the examiner's opinion is taken to contain a misstatement, it is felt that such a statement does not undermine the examiner's ultimate conclusion. The Board has also considered the Veteran's assertions that his back disability either began during or was otherwise caused by his military service. Indeed, the Board is aware that the Veteran is a veterinarian by training, and it is therefore quite plausible that he has received medical training well beyond that of a lay person. Typically, lay people are considered competent to report what comes to them through their senses, but they lack the medical training and expertise to provide a complex medical opinion as to the etiology of a particular cancer. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, while the Veteran may have some medical training and knowledge, none of his statements have given the impression that he was relying on this training to provide his opinion. Rather, he has continually asserted simply that a hard landing caused his current disability. The Veteran did not point to any actual medical evidence such as x-rays or treatment records to support his assertions. As discussed, the Veteran's assertions as to continuity have been undermined by the lack of any actual physical findings in service on examination, by the lack of any back treatment for a number of years after service, and by the Veteran's failure to seek service connection for his back shortly after service when he was seeking service connection for several other conditions. As such, the Board is of the opinion that the Veteran's statements alone are insufficient to establish that service connection is warranted; especially given the opinions of the VA examiner who examined the Veteran's claims file and provided a well-reasoned and well-supported medical opinion. The most recent examiner's opinions are found to be highly probative and entitled to great weight as they were rendered with a full knowledge of the Veteran's medical history and supported by a complete rationale. Conversely, the initial VA examination, as discussed, was based on a factually erroneous supposition and therefore is not found to be probative or entitled to any weight. Given the conclusion that the most recent VA examiner's opinions are the most probative evidence as to the etiology of the Veteran's current back disability, the weight of the evidence is against the Veteran's claim, and it is therefore denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in October 2003, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. In a September 2006 letter, the Veteran was informed how disability ratings and effective dates are established. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 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 this appeal. ORDER Service connection for a back disability is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs