Citation Nr: 1312224 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 06-38 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, L.S., and T.M. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1980 to December 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a low back disability. In March 2007, a hearing was held before a decision review officer (DRO). In May 2010, a videoconference hearing was held before the undersigned. Transcripts of both hearings are associated with the Veteran's claims file. In July 2010 and in September 2012, the Board remanded the case to the RO. In September 2012, the Board also dismissed appeals seeking service connection for a gastrointestinal disability and an increased rating for a left knee disability. FINDING OF FACT The Veteran's current low back disorders, chronic low back strain and lumbosacral disc disease were not noted in service; the preponderance of the evidence is against a finding that they are related to his service/back complaints noted therein. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a May 2006 provided essential notice prior to the readjudication of his claim. See Mayfield, 444 F.3d at 1328. An October 2006 statement of the case (SSOC) readjudicated the matter after the appellant and his representative were given an opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). At the hearing before the undersigned, the Veteran was advised of what evidence was necessary to substantiate his claim. He was advised that a medical opinion which explained why his current back disability is related to what he was seen for in service was necessary. The Veteran's service treatment records (STRs) are associated with his claims file and pertinent postservice treatment records have been secured. In response to allegations by the Veteran service daily time sheets and unit attendance records were sought in August 2010; VA was advised that such records were not retained. All available service and pertinent VA and private treatment records appear to have been obtained. The RO arranged for a VA examination in August 2006. The report of that examination is adequate for rating purposes, as it reflects consideration of all relevant evidence, includes pertinent findings, and includes an opinion regarding a nexus between the Veteran's current back disability and his service that is accompanied by adequate explanation of rationale . See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matter on appeal, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any available evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be medical evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and competent evidence of a nexus between the disease or injury in service and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs show that starting in September 1980 he received treatment for low back pain; the assessment was musculoskeletal low back pain. On October 1980 evaluation, the Veteran reported some radiation [of pain] up his back, but denied bowel and bladder difficulties and had no noted weakness in his legs, paresthesias, or dysuria. Neurologic evaluation showed 5/5 motor strength in his legs and sensory intact. His back had a full range of motion with spine tenderness, and the assessment was musculoskeletal low back pain. On May 1982 evaluation, the assessment was chronic and severe low back pain, and the Veteran was referred to orthopedics. On May 1982 orthopedic evaluation, the Veteran reported chronic low back pain, but denied motor and sensory change. An examination was essentially within normal limits, as were X-rays (they showed normal vertebral body heights and disc interspaces). On January 1984 service evaluation, the Veteran had mild paraspinous tenderness but normal straight leg raising, no lower extremity weakness, no decreased pinprick sensation, and 2/2 knee and ankle jerks. The assessment was low back pain. X-rays showed no significant abnormality. On May 1984 service examination, the Veteran reported having or having had recurrent back pain. On clinical evaluation, there was a full range of motion in his back, with no pain or muscle spasm present. On July 1984 service orthopedic clinic evaluation, the Veteran had a full range of motion of his back, no spinous tenderness, a negative straight leg raising bilaterally, and intact motor and sensory in his lower extremities. The assessment was mechanical low back pain. In a May 1986 VA Form 21-526, Veteran's Application for Compensation or Pension, the Veteran claimed service connection for knee disability (there was no mention of a for low back disability). On September 1986 VA examination, the Veteran did not report any low back complaints. On examination, his gait was normal, his squat was complete, and toe and heel gait was intact. No low back disability was diagnosed. A September 1996 confidential patient information report which the Veteran completed, apparently for D.S.L., D.C., indicates that he wanted to be seen for back pain and had seen several physicians for it in the past, none in the past year. In a July 1999 private chiropractic patient information form, the Veteran reported dull lower back pain with stiffness which he had first noticed 20 years prior. He had had acupuncture, exercise, and stretching. On August 1999 chiropractic evaluation, he described pain and soreness. He did not endorse numbness then or tingling later in August 1999 or through December 1999. On November 2002 evaluation by B. J. August, M.D., the Veteran reported that his problems began 2 weeks prior while playing basketball. He did not have any specific injury while playing, but afterwards had some low back pain that progressed over time. He reported that he had had low back pain over a long period of time, but that it was much worse now than it had been. It extended to his right hip and buttocks area. He denied any numbness, tingling, or weakness. He had seen a Dr. Untersee who had been treating him in his office. An MRI that month had shown a right paracentral disc protrusion at L5-S1 in contact with the right S1 nerve root. The diagnoses were disc displacement; and L5-S1 disc herniation to the right with right lower extremity radicular symptoms. A May 2005 letter from S. W. Untersee, D.C., indicates that the Veteran had been a regular patient of his since July 1999. The Veteran reported that he initially injured his back in September 1980, and was treated for it at the time. For over 20 years now, he had continued to have recurring chronic back pain. Dr. Untersee indicated that due to preexisting spinal degeneration, the injury in 1980 caused greater damage to the Veteran's spine than would have generally been expected. He indicated that spinal degeneration of the type present weakens the area, allowing for greater injury. In August 2005, the Veteran reported that he had been treating himself at his own expense for over 20 years since the government abandoned him. In April 2006, G.C. Cobian, D.C. indicated that she graduated from chiropractic college in 1986. While doing her student internship, she had adjusted [the Veteran's spine] under the supervision of licensed chiropractors. In July 2006, the Veteran indicated that Dr. Cobian treated his lower back from 1984 to 1985. On August 2006 VA spine examination, the Veteran's claims folder and medical records were reviewed. It was noted that low back complaints had been diagnosed as musculoskeletal low back pain in service in September and October 1980 and in May 1982. There was no documentation of a low back problem during the interval between 1985 (when the Veteran left the service) and 2001. Postservice treatment records show that a herniated disc at L5-S1 was diagnosed after the Veteran was seen for severe pain after playing basketball in 2002. He stated that while running in 1980, he fell and sustained an injury to his lower back; this was managed conservatively. An MRI found herniated nucleus pulposus at L5-S1. The diagnosis was low back strain secondary to herniated nucleus pulposus, L5-S1; and episodic radiculopathy to the right lower extremity. The examiner stated that following careful review of the claims folder, the Veteran's medical record, and the current findings, it was his medical opinion that the current low back condition was less likely than not secondary to the Veteran's low back pain in service. The examiner explained that if the injury in service in 1980 was a major trauma, there would have been post-traumatic changes manifested by degenerative osteoarthritis. The finding of the herniated discs pointed to a more recent occurrence rather than a process that dated back 20 years ago. In disc herniation, more of the symptoms are also associated with leg pain or numbness as opposed to low back pain, which was true for the Veteran. Disc herniation in general can be caused by general wear and tear on the disc over time, repetitive movements, stress in the disc that occurs while twisting and lifting, or other injuries. The examiner observed that it was documented in a note by a private physician in 2002 that the Veteran sustained [the disc herniation] playing basketball. At the March 2007 DRO hearing, the Veteran testified that he had essentially had a gradual decline [of his lumbar spine disability]. An October 2008 private MRI revealed an L4-L5 central disc herniation protrusion with slight desiccation and narrowing of the intervertebral disc, and an L5-S1 right central disc herniation protrusion abutting the right S1 nerve root. A February 2010 medical evaluation report from G. Misenhimer, M.D. indicates that the Veteran reported a history of low back pain beginning in 1980. He sustained an injury in 1980 after falling awkwardly and had been seen repeatedly during service for his low back problem. The pain had increased in severity since 1980. Dr. Misenhimer believed that the Veteran's low back problems were directly related to his October 1980 injury. The Veteran had shown him the documentation from his military record with repetitive medical follow ups due to his low back. Dr. Misenhimer believed that this injury was directly service related and documented as such. In a letter later in February 2010, G. Smith, M.D. noted that the Veteran had a well documented lumbar spine injury, and that there were multiple notes in his medical records indicating severe lower back pain. Though he was seen on multiple occasions in the military for severe lower back pain, an MRI was not obtained therein. Following service, he had several MRIs of his lumbar spine. The MRI scan that was carried out initially after he left the service was consistent with disc pathology/herniation at L4-5 and L5-S1. Given that his history and records indicated that the injury occurred in service, and there was no intervening history of the other injury, it was felt that concluding the injuries to L4-5 and L5-S1 discs occurred in service was justified. In May 2010, D.S. Liu., D.C. indicated that the Veteran was first seen in his office in September 1996 for treatment of a chronic condition back problems from old injuries. At the time of the initial visit, the Veteran complained of chronic swelling and lower back pain which radiated down his hips and legs. He had been a frequent patient in the office since. Later in May 2010, Dr. Untersee reviewed history provided by the Veteran and indicated that his low back condition had gradually continued to deteriorate over time since leaving active duty. Still later in May 2010, Dr. Cobian related that she could recall that the Veteran had been in the army and had had a low back problem but not the frequency or duration of care he was given. In September 2012 the Board remanded the case to secure copies of complete clinical records of all treatment and/or evaluation the Veteran received from Dr. Liu. An October 2012 letter from Dr. Untersee indicates that in all his years as a chiropractor, he had not seen anyone more deserving of VA assistance than the Veteran. He felt that approval was justified based on the Veteran's complete absence of any pre-existing low back condition, the documented low back injury in September 1980, all his low back pain treatments/diagnoses during and after service, as well as his present deteriorated low back condition. In October 2012, the Veteran forwarded information received from Dr. Liu. The September 1996 confidential patient information report completed by the Veteran, described above, was attached to an October 2012 letter from Dr. Liu. The October 2012 letter from Dr. Liu indicates that the Veteran was first been seen in his office in September 1996, and that his records indicated visits on subsequent dates as well. The Veteran's currently diagnosed low back disabilities are low back strain and lumbosacral disc disease. These disabilities were not manifested in service. Instead, upon being seen on multiple occasions for complaints of low back pain, the Veteran received an assessment of mechanical low back pain. Neurological evaluations and X-rays in service were normal. His service evaluation in July 1984 was essentially normal (there was an assessment of mechanical low back pain). Lumbar disc disease was first diagnosed in November 2002, with onset noted to have occurred after the Veteran played basketball. While the Veteran has attempted to support a theory that he had the onset of a chronic low back disability in service (with continuity of complaints thereafter), his supporting documentation does not reflect that either disc disease or chronic lumbar strain was diagnosed/acknowledged prior to 2002. Accordingly, to substantiate his claim the Veteran must show by competent evidence that the currently diagnosed low back strain and lumbosacral disc disease are related to his complains/injury in service. That is inherently a medical question. While a layperson may be capable of observing various musculoskeletal symptoms, whether of not such symptoms are attributable to a specific spinal disease process is beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the record there is both medical evidence that supports the Veteran's claim and medical evidence against the claim. Reviewing the significant evidence in turn, the Board finds the May 2005 letter by S.W.U., D.C., somewhat supportive of the Veteran's claim but lacking in substantial probative value as it refers, nebulously and without explanation, to pre-existing spinal degeneration; and while it suggests that an injury in service resulted in weakening of the spine (which contributed to the subsequently diagnosed disc disease), it does not discuss the extent to which any such weakening was a factor. Even more significant is that it does not mention the "basketball injury", and therefore is premised on an incomplete factual record. May and October 2010 communications from Dr. S.W.U.(indicating that the record justifies a finding of onset of the current disability in service and continuity since) likewise do not account for the documented postservice injury sustained playing basketball, and are similarly lacking in probative value. While G.C.C., D.C., communications provide some support for continuity of complaints postservice, they do not expressly indicate that those complaints were representative of the current chronic strain and disc disease. Therefore, they likewise are of limited probative value. A February 2010 opinion by G.M., M.D. directly attributes the Veteran's current back disability to injury in service/complaints noted therein. However, as Dr. G.M. does not discuss the Veteran's postservice "basketball injury", when disc disease was diagnosed, this opinion also is based on an incomplete factual background and lacks probative value. Similarly, records from, and statements by, D.S.L., D.C., indicating that the Veteran began receiving chiropractic treatment in September 1996 do not account for the postservice "basketball injury" and therefore do not reflect an awareness of the complete factual background. Notably, this chiropractor also does not directly relate the disc disease diagnosed to the injury in service. Evidence against the Veteran's claim (that his currently diagnosed back disabilities were incurred or aggravated in service) includes the report of the Veteran's November 2002 private evaluation by B.J.A., M.D., when it was noted that the onset of his problems (resulting in the diagnosis of disc disease) was in 2002, when he noticed gradually increasing back pain following playing basketball a couple of weeks prior. Finally, there is the opinion of the August 2006 VA examiner who reviewed the entire record (as the opinion expresses familiarity with both the complaints noted in service and the postservice medical data) and provided an opinion indicating that the Veteran's current low back disability was less likely than not related to his complaints in service/injury therein. The examiner cited to factual data in support of his opinion. The examiner noted that the postservice MRIs (notably done following an intercurrent postservice injury) had not shown the type of degenerative changes that would be expected if there had been a disc herniation in service. This observation directly addresses the suggestion by G.S., M.D, (noting the fact that there was no MRI in service) that had an MRI been done in service, it may have revealed disc pathology. [Notably, Dr. G.S.'s opinion is also based on the premise that there was no intervening postservice injury, which is contradicted by factual data. Therefore, that opinion is without probative value.] The VA examiner also cited to the fact that the Veteran's complaints noted in service were not consistent with the complaints typical of symptoms of disc pathology. Weighing the evidence summarized above the Board finds that the most probative (and persuasive) evidence is that found in the August 2006 VA examiner's opinion. That opinion is the only one in the record that reflects familiarity with the entire factual record. It is accompanied by a detailed explanation of rationale that cites to supporting factual data, and also addresses directly the rationale provided in the opinion evidence to the contrary. Hence, while the record shows that the Veteran had back complaints in service and has had back complaints postservice, the preponderance of the evidence is against a finding that the current low back diagnoses of chronic strain and disc disease are related to the back complaints noted in service or to any injury therein. Accordingly, the preponderance of the evidence is against the Veteran's claim, and the appeal in this matter must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v, Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal seeking to establish service connection a low back disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs