Citation Nr: 1310180 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 04-16 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a cold injury of the right and left foot. REPRESENTATION Appellant represented by: Robert Lemley, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to December 1976, from September 1977 to June 1979, and from May 1990 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2007, the Board remanded the Veteran's claim for the scheduling of a hearing before the Board. The Veteran testified at a hearing before the Board in September 2007. In February 2008, October 2009, and April 2011, the Board remanded the Veteran's claim for additional development. The claim is once again before the Board for adjudication. Associated with the claims file after certification to the Board is a patient consultation report from the Padda Institute dated in May 2012. The Veteran submitted a waiver of consideration of the agency of original jurisdiction (AOJ) in June 2012. Consequently, he is not prejudiced by the Board's adjudication of the issue on appeal. A claim of entitlement to total disability rating based on individual unemployability (TDIU) was raised by the Veteran in a statement dated December 30, 2011. The Board notes that a claim of entitlement to TDIU was denied in a rating decision dated December 2, 2011. However, as the Veteran appears to have raised a claim of entitlement to TDIU after the December 2, 2011, rating decision denying the claim, it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have a low back disability that is attributable to active service or was caused or made worse by service-connected residuals of frostbite of the bilateral feet. CONCLUSION OF LAW The Veteran does not have a low back disability that is the result of disease or injury incurred in or aggravated during active service and a low back disability is not proximately due to, the result of, or aggravated by service-connected residuals of frostbite of the bilateral feet. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in March 2003, August 2005, March 2006, March 2008, September 2008, January 2009, January 2010, and May 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the March 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, service connection is warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). That includes any increase in disability that is proximately due to or the result of a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that his current lumbar spine disability resulted from his service-connected residuals of frostbite of the bilateral feet. Specifically, he claims that the condition of his feet has deteriorated to the point that it affects his lower back. The Veteran's service treatment records do not reflect any reports, findings, or treatment for a lumbar spine disability. At a VA examination in April 2003, the Veteran reported that he fell asleep outside in a reforger while serving in Germany. He indicated that he woke up with severe bilateral foot pain and a "stiff" back. He was thereafter treated for bilateral frostbite of the feet and pneumonia. Following a physical examination which included range of motion testing of the lumbar spine and x-rays which were within normal limits, the examiner indicated that the examination was normal. The examiner also noted "early osteoarthritis more likely than not unrelated to original cold injury." It is not clear whether the notation regarding osteoarthritis referred to the lumbar spine or the Veteran's knees, ankles, and feet as x-rays were taken of all of those areas and all were reported to be within normal limits. Associated with the claims file is a statement from a VA staff physician assistant (PA-C) dated in March 2005 which indicates that the Veteran's chart had been reviewed and a history of plantar fasciitis was noted. The PA-C indicated that plantar fasciitis may produce chronic foot pain and exacerbate the pain in the Veteran's back. At a VA cold injury protocol examination in September 2005, the Veteran was assessed with back pain due to degenerative joint disease. The examination was performed for the purpose of evaluating the Veteran's feet and did not include any objective findings with regard to the Veteran's lumbar spine. Records from the Social Security Administration (SSA) reflect that the Veteran is in receipt of SSA disability benefits for a primary diagnosis of disorders of the back (discogenic and degenerative) and a secondary diagnosis of osteoarthritis and allied disorders effective since October 2004. Treatment records associated with the SSA records include records from VA and private medical records from S. Schmidt, M.D., of Pain Management Services, and Dr. E. Mia. Some of the records from VA are duplicative of other treatment records associated with the claims file. The Board will discuss all of the VA treatment records associated with the claims file dated from August 2003 to March 2012. The VA outpatient treatment reports reflect a report of chronic low back pain in November 2003. The Veteran underwent a left L4-5 hemilaminotomy and diskectomy in July 2005 and August 2005 and a lumbar laminectomy and diskectomy in November 2005. Thereafter, the records reflect continued treatment for low back pain and stiffness. The records from Pain Management Services reflect that the Veteran was assessed with postlaminectomy syndrome of the lumbar region in February 2006 and lumbar radiculopathy in March 2006. Additional records received from Dr. Schmidt dated from April 2006 to July 2007 reflect continued treatment for reports of low back pain. The records from Dr. Mia reflect reports of low back pain in May, June, and July 2004. In an April 2006 statement, the Veteran's neurosurgeon from VA indicated that the Veteran had undergone three back surgeries at VA, the last in November 2005, and that he continues to have leg and back pain. At a September 2007 hearing before the Board, the Veteran testified that he began to have trouble with his back after he left active duty in 1979. He indicated that his doctors would not put anything in writing linking his back problems to his service-connected bilateral foot disability. At a June 2009 VA examination, the examiner reviewed the Veteran's claims file and included a recitation of the pertinent medical history. The examiner noted that x-rays of the lumbar spine performed in 2004 and 2005 were negative but he noted that the Veteran underwent three spinal surgeries since that time. X-rays of the lumbar spine obtained at the examination revealed degenerative disc disease of the lumbar spine. Following a physical examination, the examiner diagnosed the Veteran with postlaminectomy syndrome L4-5 with left lower extremity radiculopathy. The examiner indicated that degenerative disc disease of the lumbar spine was noted after three spinal surgeries and could be seen to have occurred as a result of and following the surgeries. The examiner stated that he could find no causal connection between the Veteran's back pain and his service-connected cold injuries of the right and left feet. He concluded that there is no probability at all of any causal connection nor any aggravation of the Veteran's low back condition and the cold injury to his feet. Associated with the claims file is a November 2010 psychiatric evaluation from J. Liss, M.D. Dr. Liss reported that the purpose of the evaluation was to document psychiatric injury and complications of chronic pain. Following a mental status evaluation, the Axis I diagnosis was chronic pain syndrome with somatization complicated by Anxiety and Depression. Dr. Liss indicated that the Veteran's service-connected feet injury resulted in back injury and multiple joint complications. He noted that although it may be difficult to clinically find the cause and effect, psychologically this is the somatization part of the Veteran's disability and relates to the original service-connected injury. He concluded that even though the Veteran's complications cannot be related to the service-connected feet disability, they are continuation and extrapolation extensions of the original injury. At a May 2011 VA examination, the Veteran reported that he had some back pain after service in 1979 or 1980. The examiner, who also performed the June 2009 VA examination, conducted a thorough review of the claims file and included a recitation of the Veteran's pertinent medical history. The examiner noted Dr. Liss's medical opinion linking the Veteran's lumbar spine disability to the service-connected feet disability but noted that Dr. Liss is practicing psychiatrist in the St. Louis community. He stated that Dr. Liss's opinion included no rationale or supporting documentation and is considered speculative. The examiner noted that the Veteran worked as a truck driver until 2004. Following a clinical interview and physical examination including x-rays, the examiner diagnosed the Veteran with post laminectomy syndrome L4-5 with left lower extremity radiculopathy. The examiner concluded that after a review of the claims file and Dr Liss's opinion, he has no reason to change his opinion that the Veteran's service-connected cold injury did not cause or aggravate the Veteran's back condition. The examiner noted that the Veteran's back condition occurred during the course of his work as a truck driver resulting in back surgery which failed leaving the Veteran with chronic low back and left lower extremity pain. He indicated that his opinion was proffered without resorting to speculation. Associated with the claims file is a consultation report from G. Padda, M.D., dated in May 2012. The report indicates that the Veteran was seen for a recurrence of cervicalgia and paraxial low back pain. He was noted to have been involved in several motor vehicle accidents. Dr. Padda indicated that the Veteran's low back pain was a dysesthetic sensation secondary to frostbite. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a low back disability. The Board acknowledges that there are varying opinions regarding whether the Veteran's low back disability is related to his service-connected residuals of a cold injury of the right and left foot. In general, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). As such, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22 (1998); Owens v. Brown, 7 Vet. App. 429 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). In this case, the Board finds the June 2009 and May 2011 VA examination reports to be of significant probative value. The examiner considered the Veteran's representations, the claims file, and in the May 2011 VA examination report, the private opinion of Dr. Liss, and conducted a clinical examination prior to rendering the opinion that the Veteran's service-connected cold injury did not cause or aggravate his back condition. Further, a complete and thorough rationale is provided for the opinions expressed. By contrast, the Board finds the opinions of the VA staff physician assistant, Dr. Liss, and Dr. Padda to be of limited probative value. With regard to the opinion from the VA physician assistant, the PA-C indicated that the Veteran's plantar fasciitis may produce chronic foot pain and exacerbate the pain in the Veteran's back. This opinion is speculative as the PA-C provided no supporting rationale to support this conclusion and, significantly, did not relate plantar fasciitis to the service-connected residuals of frostbite of the feet. With regard to the opinion from Dr. Liss, the May 2011 VA examiner noted that Dr. Liss is a psychiatrist and he did not base his opinion that the Veteran's service-connected feet injury resulted in back injury and multiple joint complications on any objective evidence. Consequently, this opinion is speculative in nature. With regard to the statement from Dr. Padda that the Veteran's low back pain was a dysesthetic sensation secondary to frostbite, Dr. Padda failed to include any rationale for this opinion. On the other hand, the opinions of the VA examiner included a thorough review of the claims file and a complete rationale for the opinions. Given the contradiction of statements made with the facts and/or the failure to reconcile the opinions with the facts of the case, the Board affords the opinions of the VA PA-C, Dr. Liss, and Dr. Padda to be of very little probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (explaining that factors affecting the probative value of a medical opinion are whether the opinion is based on sufficient facts or data, is the product of reliable principles reliably applied to the facts, and the reasoning employed by the expert). The Board also has considered the Veteran's assertions that his current low back disability is related to service or a service-connected disability. The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as the Veteran experiencing back pain since service. Washington v. Nicholson, 19 Vet. App. 362 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. Rucker v. Brown, 10 Vet. App. 67 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board finds that the specific issue in this case, the presence of a causal connection/relationship between military service or service-connected residuals of frostbite of the feet and the Veteran's current disability of the low back, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Given the Veteran's lack of demonstrated medical expertise, the Board concludes that his statements regarding any such link between a low back disability and a service-connected disability or service are significantly less probative than the conclusions of the VA examiner. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As to his claims of continuity of symptomatology since service, the Board finds the Veteran's contentions particularly problematic given the medical evidence which demonstrates that the Veteran did not seek treatment for a lumbar spine disability until 2004 and he worked as a truck driver until he began receiving SSA disability benefits due to his lumbar spine problems. In summary, the most probative evidence of record rejects any association between the Veteran's low back disability and a service-connected disability. Moreover, there is an absence of any objective evidence linking the Veteran's current lumbar spine disability and his active service. Finally, there is no evidence that arthritis of the lumbar spine was present in the year following service. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a cold injury of the right and left foot is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs