Citation Nr: 1311187 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-17 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In his August 2009 notice of disagreement, the Veteran requested a hearing before a Decision Review Officer at the RO. A hearing was scheduled for June 2010 but in April 2010 the Veteran requested that it be cancelled. As such, his hearing request is deemed withdrawn. In May 2011, the Board remanded the case for additional development. As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his Virtual VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. FINDING OF FACT The preponderance of the evidence shows Veteran's low back disability manifested many years after the Veteran's discharge from service, and is not otherwise shown to be etiologically related to or had its onset in service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify under the VCAA. A November 2008 letter provided notice, before the initial unfavorable decision in July 2009, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA and private treatment records, and service treatment records (STRs) have been obtained. In the May 2011 remand, the Board directed the AOJ to provide the Veteran with an opportunity to submit the names of any providers who treated his back. The AOJ complied with this directive via letter in June 2011, and the Veteran identified three providers. The AOJ obtained private treatment records from all three of these providers. Also pursuant to the remand directives, the AOJ associated VA treatment records dated after August 2008 with the claims file. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Pursuant to the May 2011 remand, the Veteran was provided with a VA examination in June 2011. The Board finds that this examination report is adequate for evaluation purposes because the examiner conducted an interview, clinical evaluation, and review of the Veteran's medical history and records. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. D'Aries, supra. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Claim The Veteran contends that his low back pain began during service after he slept in a sleeping bag or, alternately, in a vehicle. The Veteran asserts that his low back pain has continued since service to the present and therefore service connection is warranted for his current back disability 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence 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, supra. 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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 v. Derwinski, 2 Vet. App. 614, 618 (1992). 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. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez, supra. 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, 21 Vet. App. at 124 ("[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 Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran has a current low back disability. Private treatment records from Fort Sanders Orthopedic Clinic show complaint of low back pain in March 1976. He was diagnosed by x-ray with probable herniated disc at L5-S1. In May 1976 a lumbar laminectomy was performed at L4-5 and L5-S1 on the right with findings of an extruded disc at L5-S1 on the right. L4-5 had nerve root irritation and degeneration with some bulging of the disc space. Both discs were removed. The claims file includes private treatment records from Grainger Family Clinic dated February 1996 to March 2009. In May 2002 the Veteran reported that he had been exercising and felt it pop, resulting in left side low back pain radiating down the left leg. He was diagnosed with lumbosacral strain with left sciatica. In September 2007, the Veteran complained of pulling a muscle in the right low back with pain radiating to the right leg. He had been prescribed medication from VA but had not received it yet. He was diagnosed with lumbosacral strain with right sciatica. In November 2007 he complained of low back pain that occurred at the same time as edema in his right lower extremity and foot. In March 2009 he reported tenderness, limited range of motion in the low back. Private treatment records from chiropractor Dr. B show that in September 2007 the Veteran was diagnosed by x-ray with subluxation of the L5 vertebra, sciatica, low back pain, and lumbar IVD displacement. VA treatment records show complaint of low back pain in September 2006 and a diagnosis of lumbar sprain with low back pain in October 2007. Low back pain complaints continued and in January 2008 VA treatment records show diagnosis of L4-5 disc degeneration based on a 2007 MRI. In February 2009 he was diagnosed with lumbar disc disease with radiculopathy. In June 2010 he was diagnosed with lumbar spinal stenosis, but in April 2011 a VA neurosurgeon revised that diagnosis to arachnoiditis. In June 2011 neuropathic lower extremity pain was added to the arachnoiditis diagnosis. The Veteran has been treated at the VA with several steroid injections and a TENS unit. In June 2011 the VA examiner diagnosed lumbar degenerative disc disease (DDD). The Board finds that the Veteran has a current low back disability, diagnosed as arachnoiditis and lumbar DDD. In order to grant service connection, there must be an in-service incurrence or aggravation of a disease or injury. There is no objective evidence of injury or disease during service. The STRs show normal spine and musculoskeletal evaluation at induction and separation. The Veteran also denied any back complaints or history at induction and separation. There is no mention of back injury, pain, complaint, or treatment in any of the STRs. Despite the fact that the Veteran's STRs are negative for objective evidence of a low back disability, he is competent to report a history of back pain that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. at 469-70. Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). However, the Veteran's reports regarding the onset of his symptomatology and the chronology of events are both internally inconsistent and inconsistent with the other evidence of record. The Veteran has provided different onset dates for his low back pain. In March 1976 he stated that it began six months prior, placing the onset in the fall of 1975. In his original claim application dated October 2008 he listed an onset date of November 1966 and stated, "after sleeping in [a deuce and a] half trailer I couldn't walk for several hours and this condition has been with me since." At a June 2010 VA pain medicine consult he stated he had chronic back pain for over 40 years, placing the onset date in the 1960s. On the same day in June 2010, he told a nurse that he had back pain since 1967. In June 2011 he told the VA examiner that the onset was in 1966 after sleeping in a sleeping bag during training and denied any actual trauma or specific incident of low back injury. The Board notes that there is a nine-year gap between the end of service and the first recorded complaint of back pain. The first medical evidence and recorded complaint of back pain are found in the March 1976 private treatment record. The Veteran complained of more or less constant pain in the lower part of his back and right sacroiliac area that "first developed six months ago but appears to be getting progressively worse." The Veteran denied any treatment prior to this appointment, with the exception of one doctor who told him it might be his prostate. His past history was negative and he had no history of previous surgery (emphasis added). This pain worsened and the laminectomy was performed in May 1976. The record is silent for back complaints for 26 years until the May 2002 private treatment record showing the Veteran had felt a pop during exercise that resulted in left side low back pain radiating down the left leg. He was diagnosed with a lumbosacral strain. The back is not mentioned again for four years until the first VA treatment record of low back pain in September 2006. In September 2007, the Veteran complained of pulling a muscle in the right low back a week prior with pain radiating to the right leg. Around the time of the second strain, he saw a private chiropractor who did not address the onset of the pain. After this point, complaint of low back pain appears at least once a year in VA and/or private treatment records. In April 2011 a VA neurosurgeon noted that the Veteran reported having done well for years but then redeveloped low back pain "about three years ago." 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, supra. The Board finds the Veteran's statements are not credible as to the onset of low back disability or an in-service injury. They are both internally inconsistent and inconsistent with the other evidence of record. Unreliable statements cannot support a credible finding of an in-service injury or aggravation. Caluza, 7 Vet. App. at 511; Buchanan, 451 F.3d at 1337. The June 2011 VA examination included review of the claims file, an interview of the Veteran, physical examination with motor, sensory, range of motion, and reflex testing, and imaging studies. The Veteran reported onset of low back pain in 1966 after sleeping in a sleeping bag during training and denied any actual trauma or specific incident of low back injury. The pain had been intermittent with remissions and had responded fairly to morphine and multiple epidurals. Based on extensive testing, the examiner diagnosed lumbar DDD and opined that the Veteran's low back disability was less likely than not related to his period of active military service. He provided a rationale for this opinion, stating that he could not find any supporting documentation in the claims file showing that the Veteran was treated for low back pain in service. In addition, his separation medical history and physical examination were negative for report of back pain or related injuries. The Board finds that the examiner's opinion is based on adequate examination and provides a clear conclusion supported by specific data in the record, with a reasoned medical explanation connecting the two. Stefl, supra; Nieves-Rodriguez, supra. The Board finds that it is probative, as it was predicated upon a thorough, accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes that the Veteran has contended on his own behalf that his low back disability is related to his military service. Lay evidence may be competent to establish medical etiology or nexus. Davidson, supra. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's low back pain and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, he does not possess the medical knowledge to attribute his low back pain to any specific instance of his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet.App. at 435, as to the specific issue in this case, lumbar DDD and arachnoiditis fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons are not competent to diagnose cancer). Here, while the Veteran is competent to describe his low back symptoms, the Board accords his statements regarding the etiology of the claimed disorder little probative value as he is not competent to opine on such a complex medical question. In contrast, the VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's history, current medical condition, STRs, and medical records. Therefore, the Board accords greater probative weight to the 2011 VA examiner's opinion. Based on the foregoing, there is no probative evidence of a nexus between the Veteran's current low back disability and his military service. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for low back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs