Citation Nr: 1312093 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 04-08 138 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from August 1995 to August 1999. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2003 RO decision which, in part, denied the benefits sought on appeal. The Board remanded the appeal for additional development in July 2007 and April 2009. In October 2010, the Board denied the Veteran's claim for a low back disability, and she appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2011 Memorandum Decision, the Court vacated the Board's decision and remanded the issue for compliance with the terms of the decision. The Board remanded the appeal for additional development in June 2012. FINDING OF FACT A low back disability was not present in service or manifested until many years thereafter. CONCLUSION OF LAW The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by military service, nor may any current arthritis of the low back be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in April 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal and was scheduled for a videoconference hearing in February 2005, but failed to report and did not request to be rescheduled. Further, neither the Veteran nor her representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced the Veteran in the adjudication of his appeal. The Board finds that the VA examinations were comprehensive and adequate upon which to base a decision on the merits of the issue on appeal. The examiners personally interviewed and examined the Veteran, elicited a medical history and provided comprehensive and rational explanation for the conclusions reached. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. Finally, the Board finds that there was substantial compliance with the June 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the in June 2012 remand directed the RO/AMC to obtain service department medical records for the Veteran's treatment by the Obstetrics and Gynecology department at the Naval Hospital in San Diego, California, and any other relevant records identified by the Veteran. The claims file shows that the AMC obtained the service department records identified in the Memorandum Decision, and that the Veteran did not identify any additional relevant records that needed to be obtain. The Veteran's Virtual VA electronic records were also reviewed. Accordingly, the Board finds that there has been substantial compliance with the January 2010 Board remand directives and, therefore, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104 (2008). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (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. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis The Veteran contends that she has had chronic low back problems and sciatic pain into her lower extremities since suffering a back injury while performing her duties as a corpsman in service. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Historically, the STRs showed that the Veteran was treated for low back pain on one occasion in August 1997. The STRs showed that the Veteran reported a four day history of back pain since transporting a 300 pound patient, and that she denied any radiating pain. On examination, there was no evidence of muscle spasm, decreased strength or any neurological abnormalities. The assessment was back strain, and the Veteran was given Naprosyn, instructed on proper lifting methods, placed on light duty for one week, and told to return to the clinic as needed. The Veteran was not seen for any follow-up problems. The STRs showed that the Veteran was treated for neck and left shoulder pain after the car she was driving was rear-ended in what was described as a "low-speed" motor vehicle accident (MVA) in December 1997. She was initially given a cervical collar (brace) for precautionary measures, and subsequent x-ray studies showed no evidence of fracture or other pertinent abnormalities. The STRs showed no complaints or findings for any involvement of the lumbosacral spine. The diagnosis was cervical strain, and the Veteran was given Motrin and placed on light duty for seven days. The STRs pertaining to the Veteran's pregnancy showed that she was treated by OBGYN services (Naval Medical Center - San Diego) from February to November 1998. The records showed that the Veteran was seen for low back pain on three occasions (April, September and October 1998), and that she had sciatic pain on a couple of occasions toward the end of her pregnancy, which were attributed specifically to her pregnancy. Other than the occasional notations of low back pain during her pregnancy, the STRs were completely silent for any further complaints, treatment or abnormalities for any low back problems during service. The STRs showed that the Veteran was pregnant again in June 1999, but that she experienced a spontaneous miscarriage in July 1999. The reports indicated that she had a sudden onset of bleeding and cramps with severe pain radiating from her lower abdomen to the small of her back immediately prior to the miscarriage. Additionally, the Board notes that during the course of this appeal, the Veteran has reported several versions of a back injury in service, including having a 300 pound patient fall on her (see October 2008 VA examination report), having a 300 pound patient fall on her and another corpsman (see Veteran's December 2008 statement), and injuring her back in a MVA, and subsequently aggravating her symptoms when a 300 pound patient rolled onto her (see August 2009 private medical report). As noted above, however, the STRs showed only a single incident of back pain four days after transporting a 300 pound patient. Other than a couple of complaints of back pain during her pregnancy in 1998, the STRs showed no further complaints, findings or abnormalities for any low back problems during her more than two years of service subsequent to that incident. Furthermore, not only did the Veteran deny any neurological symptoms at the time of the July 1997 incident, but there were no complaints or findings of any sciatic neuropathy involving her lower extremities in service, other than during her pregnancy. Moreover, those incidents of sciatic pain were specifically attributed to her pregnancy and not to any injury or chronic back problem. That the Veteran would be seen for various maladies on numerous occasions subsequent to the July 1997 incident, including for cervical and left shoulder pain following the MVA accident, but that she would never report, what she now claims have been chronic low back and sciatic pain since that incident, is not likely. Concerning the Veteran's contentions, while she is competent to provide evidence regarding her observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board finds that the Veteran's inconsistent statements concerning the etiology of her back injury and her allegations of chronic back pain and sciatic symptoms in service, particularly when compared with the historical record, raises serious doubts as to her ability to provide accurate and reliable information and reflects negatively on her credibility. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board does not find the Veteran to be a reliable historian, and that her contentions of chronic low back and sciatic problems since service are not credible. Turning to the notations on the Veteran's service separation examination, the Board notes that while the Veteran indicated that she wore a "brace or back support" and had a history of recurrent back pain on a Report of Medical History (RMH) for separation from service in July 1999, the reported history does not show that she had a chronic low back disability during service, but merely describes, accurately, her medical history. In the explanation portion of the RMH, the Veteran provided a detailed list of medical problems, which included a history of "back pain from strain [at] work & 2 car wrecks cervical strain." In the physician's summary portion of the report, the examiner noted "MVA [January] 1998. healed. NCD (not considered disabling)." This information merely described the Veteran's medical history - that she wore a cervical collar (back brace), that she had a back strain at work (July 1997 incident), and that she had cervical strain from a MVA (December 1997). Parenthetically, the Board notes that the STRs showed that the Veteran was involved in only one MVA in service. This is also consistent with the Report of Accidental Injury that the Veteran submitted to VA in February 2003. Furthermore, the STRs do not show that the Veteran was ever provided with or advised to use a back brace or support for any low back problems during service. Moreover, the Veteran was not shown to have any pertinent abnormalities of the lumbosacral spine or lower extremities at the time of her service separation examination. The Veteran's spine and musculoskeletal system, lower extremities and neurological systems were normal, and no low back abnormalities were noted. The first reported complaint of any low back problems after service was with the filing of this claim in June 2002. When first seen by VA in April 2003, the Veteran reported that she suffered a back injury lifting a patient and that it was aggravated by two subsequent MVA's in service. She also reported that her sciatic pain began 1997. On examination, the Veteran had some reduced range of motion of the lumbar spine. The report noted that her left leg was 1-cm shorter than the right leg and the left knee height was shorter than the right knee. VA x-ray studies of the lumbar spine in May 2003 were negative and showed no evidence of degenerative changes and very mild L5-S1 space narrowing. The vertebral body heights and remaining joint spaces were well maintained, and there was no offset of vertebral bodies. The impression was negative lumbar spine. A private physical therapy note, dated in August 2003, showed that the Veteran reported right-sided thoracolumbar and some cervical pain, with a history of flare-ups over the past week and a half. The Veteran reported longstanding low back pain and two or three injuries doing patient transfers in service, and a history of cervical strain from a MVA in 1997. The Veteran denied any unusual numbness or tingling of the extremities and there did not appear to be any significant postural deviations other than a rather excessive lumbar lordosis that goes along with an anterior pelvic tile. Private x-ray studies in September 2007 showed vertebral bodies were normal in height and mineralization, minimal disc space narrowing at L4-5, and no evidence of fracture or subluxation. The impression was minimal L4-5 degenerative disc disease. A VA outpatient note, dated in September 2007, showed that the Veteran was seen for low back pain, but denied any numbness or tingling into her lower extremities. X-ray studies showed minimal degenerative disc disease at L4-5. A VA outpatient note, dated in April 2008, indicated that the Veteran was seen for low back right sided pain with occasional radiation down the lateral leg to her knee. The report noted that this was the first time that the Veteran reported radicular pain. On VA examination in October 2008, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history, and the clinical and diagnostic findings on examination. X-ray studies at that time showed minimal concave right rotatory scoliosis epicentered at L3, and a 5 level morphology with T12 findings very small short ribs. The narrowing was seen at L4-5 and L5-S1. The impression was two level degenerative disc narrowing rotatory scoliosis. The examiner indicated that rotatory scoliosis is an idiopathic congenital condition, and that studies showed that it continues to progress with age. The examiner noted that the Veteran was wearing a seatbelt at the time of the 1997 MVA, which would have protected her from any lumbar condition, and that there was no evidence of any low back problems at the time of her service separation examination. Comparing the x-ray studies from 2003 to 2008, the examiner indicated that there was more progression of the narrowing at the L5-S1 level, which would indicate something aggravated her condition beyond the normal progression since 2003. The Veteran reported that her most recent job as a medical assistant required her to lift patients onto examining tables. The examiner noted that while the Veteran's duties in service also required lifting patients, given the absence of any abnormal findings in service and the objective evidence of changes in the lumbosacral spine from 2003 to 2008, it was more likely than not that the Veteran's current degenerative disc narrowing was related to her post service employment, and was not caused by or aggravated beyond its natural progression in service. In a letter received in October 2008, a private physician, Dr. J. A. Wood, indicated that while she has not treated the Veteran for her specific low back problems, she examined and talked with her, and believes that it was as likely as not that the Veteran's current problems stemmed from injuries received during service. A VA MRI in May 2009, revealed degenerative osteoarthritis at L4-5 with central and slightly left-sided disc. When examined by VA in September 2009, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the findings on examination. The examiner noted that the Veteran exhibited classic and pronounced hypermobility/hyperflexibility syndrome on examination which could easily account for her widespread multiple joint complaints, along with falls, back pain, lumbar lordosis and intermittent joint strains, and even her prior reported plantar fasciitis and pes planus. The examiner opined that the Veteran's back pain was most likely related to her extreme lumbar lordosis, anterior pelvic tilt, leg length discrepancy all of which is likely secondary to her hypermobility syndrome, which until recently, was not well described or studied. (The examiner referenced a medical treatise for further information). Unfortunately, this condition tends to be more symptomatic as individuals grow older, are more overweight, when stresses and strains of everyday living temporarily exacerbate a joint, or if they are not in good physical condition and then are more likely to injure themselves, accounting for intermittent symptoms. The examiner opined that it was unlikely that the Veteran's disorder began in service by a specific event such as a single incident of strain, as there was no record of any constant or progressive condition in the STRs or any abnormal complaints or findings at the time of service separation. In fact, almost all of the examinations in the claims file were normal for this condition except for the lumbar lordosis and pelvic tilt. The examiner concluded, in short, that the Veteran's current low back pain was not related to military service. 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. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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."). In this case, the Board finds that VA opinions, in particular, the September 2009 opinion persuasive, as it was based on thorough examination of the Veteran and included detailed discussions of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current low back disability was not related to service or otherwise aggravated beyond the normal progression of the disease process by service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). In contrast, the favorable private medical opinions from Dr. Wood offered no explanation or analysis for the conclusory assessment that the Veteran's current back disability was related to injuries sustained in service. The Court has held that a medical opinion containing only data and conclusions is not entitled to any evidentiary weight. See Nieves-Rodriguez, 22 Vet. App. 295, 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."). For the reasons discussed above, the Board finds that the favorable private medical opinion is of limited probative value. The Board has also considered the lay statements from the Veteran's mother and a friend concerning their observations of the Veteran's physical problems since enlisting into military service. However, as the issue in this case is not one that can be diagnosed via lay observations, alone, the Board finds that the statements are of little probative value and declines to assign them any evidentiary weight. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for a low back disability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. ____________________________________________ WAYNE M. BRAUEUR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs