Citation Nr: 1312544 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-46 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the residuals of a low back injury, to include degenerative joint and disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1946 to August 1949, and from September 1950 to November 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case was certified to the Board by the RO in St. Louis, Missouri. In his substantive appeal the Veteran requested a Board hearing to be held at the RO. In January 2013 correspondence, the RO informed the Veteran that his Board hearing was scheduled for a date in March 2013. Later in January 2013, the Veteran signed a form indicating that he wanted to cancel his planned Board hearing. Therefore, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record preponderates against finding that residuals of a low back injury, to include lumbar degenerative joint and disc disease, are etiologically related to his periods of active service, or to any incidents therein (to include presumptively). CONCLUSION OF LAW Residuals of a low back injury, to include degenerative joint and disc disease of the lumbar spine, were not incurred in or aggravated by active service, and lumbar arthritis may not be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 In this case the requirements of the Veterans Claims Assistance Act of 2000 have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in December 2009 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to provided by him, and what part VA would attempt to obtain. The claim was readjudicated in a September 2012 supplemental statement of the case. VA has also fulfilled its duty to assist as private and VA medical records relevant to this issue have been requested or obtained and the Veteran was provided with a VA examination. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of active duty 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, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Lumbar degenerative joint or disc disease is a form of arthritis, a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Generally, in order to prevail on the issue of service connection on the merits, there must be: (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. Otherwise, when a disorder may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran claims entitlement to service connection for a low back disorder as a result of his military service. He essentially contends that he injured his lower back during combat in the Korean War and that his currently diagnosed lumbar spine disorder is related to that injury. The Veteran's DD Form 214 indicates that he received the Purple Heart for wounds received as a result of action with enemy forces in Korea in June 1951. Service treatment records document treatment for a combat injury to the back. A service treatment record dated June 2, 1951 stated that the Veteran suffered contusions being near an enemy mortar blast. It was noted that the Veteran was knocked down but did not lose consciousness. He was able to walk afterward. Physical examination revealed lumbar tenderness, and tenderness on the right side of his abdomen and at his right lower extremity. He was evacuated to a hospital ship. A June 3, 1951 service treatment record noted that a mortar shell landed near the Veteran and that he suffered a blast injury along his right side, especially at the back and thigh. Since the blast, he reported having severe pain in the right back area. Physical examination was negative but for a back spasm and tenderness of the right paraspinous muscles. The pertinent diagnosis was a contusion of the back and thigh. X-ray studies the following day were negative. On June 6, 1951, the Veteran was transferred to a naval hospital for further treatment. A hospital record dated June 7, 1951 noted that a shell exploded close to the Veteran's foxhole on May 31, 1951. At the time the Veteran was standing and he was thrown three to four feet and landed on his back in another foxhole. His complaints included a low backache with no radiation. On June 13, 1951, an orthopedic consultation failed to reveal any evidence of a musculoskeletal disease or injury. X-rays of the lumbosacral spine were negative. Subsequent treatment included bed board, back exercises, and heat. On June 28, 1951 he was discharged to Class B duty for four weeks, after which medical personnel expected that he would be ready for full duty. The Veteran's November 1951 discharge examination revealed a clinically normal spine and musculoskeletal system. Post-service, there are no private or VA treatment records related to back complaints for many years. An August 2009 VA history and physical examination noted that the Veteran had no pain to palpation of the cervical, thoracic, and lumbar spine. The Veteran underwent a VA examination of the spine in February 2010. The examiner noted that mortar shelling hit a tree upon which the Veteran was resting. As a result of this shelling, tree fragments struck the appellant in the back leaving him black and blue. It was noted that the Veteran was not in a position at that time to seek medical attention in the field. The appellant described a second shelling attack in "April 1950" (sic) when he was struck with gravel and dirt in his back area. Thereafter, the Veteran reported that he had internal bleeding from the rectum and penis during the night after the attack. The next morning he was evacuated to a MASH unit, then transferred to a hospital ship, and then to a hospital in Japan. X-rays revealed no fracture. The Veteran said that he had pain all over for awhile and was put to bedrest. He was returned to Korea in "August 1950" (sic). The Veteran stated that post service he was seen for back pain and stomach problems in 1952. The Veteran said that the hospital that treated him was no longer in existence. He told the examiner that he tried manipulation by chiropractors over the years going about twice per year. He said that some chiropractors would not do manipulation on him because of changes in his spine. He could not recall any back injury after service and denied any back surgeries. The Veteran still complained of back pain. An X-ray study showed advanced degenerative changes in the lumbar spine involving the L4-L5 and L5-S1 levels. The diagnoses were degenerative disc and joint disease of the lumbar spine. After a physical examination and review of the claims file, the February 2010 VA examiner opined that the Veteran's currently diagnosed lumbar spine disorder was less likely as not caused by or a result of his in-service injury in Korea . The VA examiner noted that in-service examinations before and after the 1951 shelling incident did not show a back complaint or abnormality. He also noted there was no embedded shrapnel and no residuals were seen on X-ray. The VA examiner stated that this theoretically could have occurred from the concussive force from the explosion throwing the appellant in the air with the appellant landing on his back in battle gear. The landing could have caused a renal contusion and bleeding. But while this scenario was plausible it was also speculative. The VA examiner noted that available records did not show evidence of ongoing internal bleeding by the time the Veteran received medical care. Nevertheless, the injury was sufficient to merit the Purple Heart. The examiner noted there were no back complaints at the discharge examination and a military award did not guarantee the permanency of a related injury. The February 2010 VA examiner also noted that while the Veteran reported ongoing complaints post-service, no records were available and the Veteran only saw a few chiropractors over the years on a very intermittent basis. The VA examiner also noted that back complaints were not mentioned in the Veteran's comprehensive annual checkups. Finally, the VA examiner stated that X-ray findings were not unexpected for age. The examiner stated that he was unable to conclude that the Veteran's war-time injury in Korea was the cause of any current back condition without a stronger case for persistence and continuity of complaints over the years. The VA examiner also noted that there was nothing unique about the current X-ray finding that pointed to a traumatic injury as the cause. Private medical records associated with the claims file after the VA examination show that the Veteran was seen by a private physician in October 2010 for lower back and right leg pain, but these treatment records do not discuss any relationship between current back pain and the Veteran's war-time injury. In his November 2010 Substantive Appeal, the Veteran stated that the in-service back injury in Korea occurred in May 1951, rather than June 1951, and that he did lose consciousness for some period of time. While there was a corpsman on the scene, the appellant stated that he had to remain on the hill overnight. He also claimed that he was hospitalized for three months as a result of his injuries and was in severe pain at discharge. He admitted that he did not complain then because he wanted to go home. About a year after discharge the Veteran claimed that he did seek treatment from a doctor for his back injury, but this doctor was not able to help him. Subsequently, he began seeing a chiropractor. Correspondence received in January 2011 from a private chiropractor noted that Dr. P.J.J. saw the Veteran for chiropractic treatment for a general spinal adjustment for relief of low back pain on five different occasions between 2004 and 2010. Based on a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current lumbar degenerative joint or disc disease was incurred as a result of any established event, injury, or disease during active service. Initially, the evidence shows that the Veteran has a currently diagnosed disability of the lower back. As noted above, the February 2010 VA examiner diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine based on X-ray findings. There also is medical evidence of a back injury and treatment during the Korean War. However, there is no indication from the service treatment records that this back injury had not completely resolved before discharge from active duty. Service treatment records also show no complaints, findings, or treatment for any injury or disease referable to the claimed degenerative joint or disc disease of the lumbar spine. At his November 1951 discharge examination the Veteran was clinically evaluated and specifically found to have a normal spine. Information found in the claims file confirms that the Veteran is a combat veteran entitled to consideration of 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154(b) state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat veteran's burden of demonstrating the occurrence of some inservice incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the provisions of section 1154(b) apply only to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. In this case, however, the official record documents an injury to the back in-service. The Veteran need not rely upon the provisions of § 1154(b) to show that he injured his back while in Korea. VA concedes that the evidence shows that the Veteran injured his lower back in service during combat shelling in 1951. Significantly, however, the provisions of 38 U.S.C.A. § 1154(b) do not create a presumption of service connection for a combat veteran's alleged disability. A veteran is still required to meet his evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which usually require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Significantly, medical records associated with the claims file do not show a diagnosis of degenerative disc or joint disease until several decades after discharge from active service. The available evidence shows that the initial diagnosis was not made until the February 2010 VA examination, or more than 58 years after service. Such a lapse of time after service is an important factor for consideration in deciding a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In view of the medical evidence of record, there is no persuasive evidence of a continuity of symptomatology from the Veteran's period of active duty service to his current diagnosis of degenerative disc and joint disease. This weighs against the Veteran's claim as well. 38 C.F.R. § 3.303(b). In contrast, the February 2010 VA examiner specifically opined that the appellant's lumbar degenerative disc and joint disease likely occurred with aging. The examiner found nothing unique about current X-ray findings that pointed to a traumatic injury as the cause. The VA examiner specifically opined that lumbar degenerative disc and joint disease were unrelated to the appellant's Korean War back injury. There are no competent and credible opinions to the contrary. The Board notes that while the Veteran was treated for low back pain in the summer of 1951, his service treatment records strongly indicate that any back pain or disorder apparently resolved before discharge from service in November 1951. The Veteran has not provided any competent medical evidence to demonstrate that any current lumbar disability was caused by or is a result of his periods of active service. The opinion of the February 2010 VA examiner is persuasive that the Veteran's degenerative disc and joint disease is not related to active duty. That examiner had the benefit of reviewing the claims file and interviewing and examining the Veteran. Generally, without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. Presumptive service connection is not warranted because there is no evidence in the record that lumbar degenerative disc or joint disease was compensably disabling within a year of the Veteran's separation from active duty in 1951. 38 C.F.R. §§ 3.307, 3.309. While the Veteran indicated that he visited a physician for back problems during his first year after discharge from service, he also said that this doctor was not able to help him. There are no medical records of this treatment and no suggestion from the Veteran or others that lumbar degenerative disc or joint disease was compensably disabling in 1952. The Board has reviewed his written statements. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Veteran is certainly competent to describe the extent of his current symptomatology and the continuity of symptomatology from service onwards. In specific regard to his claim on appeal, his contention that his back condition might be related to his combat back injury in Korea, while credible, is outweighed by the competent medical evidence of record, particularly the medical opinion of the February 2010 VA examiner. The only competent medical opinion addressing a relationship between service and the current lower back disability is against the claim. While the Board is sympathetic to the Veteran's claim, and while he is competent to describe what he experienced in service, any contention by the Veteran that degenerative joint disease and degenerative disc disease are related to his in-service injury is not persuasive in view of the VA medical opinion and the passage of time between his discharge from service in 1951 and the filing of his July 2009 claim for service connection. There is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). As a lay person without the appropriate medical training or expertise, the Veteran simply is not competent to render a probative (i.e., persuasive) opinion on such medical matters. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a lay person is generally not capable of opining on matters requiring medical knowledge"). Consequently, the assertions of the Veteran in this matter simply do not constitute persuasive evidence in support of the Veteran's claim. Given the absence of persuasive evidence in support of the Veteran's claim, for the Board to conclude that the Veteran has a back disorder that was incurred as a result of active service would be speculation. Service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the preponderance of the evidence is against entitlement to service connection for the residuals of a low back injury, to include lumbar degenerative joint and disc disease. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the residuals of a low back injury, to include degenerative joint and disc disease of the lumbar spine, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs