Citation Nr: 1313595 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 09-36 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a low back disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received and denied the Veteran's claim for service connection for a back disability. By decision dated August 2010, the Board found new and material evidence had been submitted, and reopened the claim. The issue of service connection on the merits was remanded for additional development of the record. The Board again remanded the claim in March and July 2012. The case is again before the Board for appellate consideration. In its March 2012 decision, the Board granted service connection for a right ankle disability. This was effectuated by the RO in an April 2012 rating action, in which a 10 percent evaluation was assigned. The Board notes the April 2013 supplemental statement of the case erroneously addressed the issue of service connection for a right ankle disability, and indicated the claim was denied. The attention of the RO is directed to the March 2012 Board determination and the April 2012 rating decision. 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). FINDINGS OF FACT 1. Service connection is in effect for a right ankle disability, evaluated as 10 percent disabling. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a low back disability that is etiologically related to military service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in September 2007 and April 2012 letters. The claim was subsequently reajudicated, most recently in an April 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, a letter from the Veteran's sister, medical records from the Oregon Department of Corrections, private and VA medical records, and reports of VA examinations and opinions. Several VA examinations have been conducted, and an opinion regarding the etiology of the Veteran's low back disorder was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained in this case are adequate, as they are based on an examination of the record and a review of the claims folder. The opinion considered the pertinent evidence of record, to include statements of the Veteran regarding the etiology of his low back condition. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Arthritis is included in 38 C.F.R. § 3.309. Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity The Veteran has been service-connected for a right ankle disability, evaluated as 10 percent disabling. The Veteran asserts service connection is warranted for a low back disability. He claims he fell during service while unloading supplies from a truck. He alleges he injured his right ankle and back in this fall. He states he was a cook in the medical unit and that few records were maintained. He also maintains that his low back disability is related to his service-connected right ankle disability. The evidence supporting the Veteran's claim includes his statements, a letter from his sister and some of the findings of record. A September 1954 entry in the service treatment records shows the Veteran wanted to go back to light duty. There was a notation that he "may have light duty." When examined by the VA in December 1996, the Veteran reported he injured his low back in service. He acknowledged there was no specific treatment for the back at that time, but that he has had low back pain ever since. He related that X-rays in the 1970's showed degenerative disc disease. An inspection of the Veteran's shoes revealed he wore the lateral aspect of the sole more rapidly than the remaining portion of the shoe. X-rays of the lumbar spine demonstrated pronounced degenerative arthritic changes. The diagnosis was chronic lumbosacral strain, superimposed on degenerative joint disease of the lumbar spine. A September 1978 X-ray of the lumbar spine was reviewed by a VA physician in December 1997. There were degenerative changes in the disc spaces. Private medical records disclose the Veteran was seen in May 2006 by A.K.S., M.D. for complaints of right ankle pain and right foot drop. He stated he had been having difficulty walking. The impressions were severe spinal stenosis, L3-4 and L4-5, degenerative disease of the lumbar spine and bilateral lumbar radiculopathy. A laminectomy was performed in July 2006. In a statement received in December 2007, the Veteran's sister related the Veteran wrote many letters to his family during service. She noted that he mentioned an incident in which he slipped and fell backwards against a pile of rocks. She added he wrote often of the pain in his back and that he only took a lot of aspirin. She also indicated that when he lived in California, the Veteran had X-rays of his back. When examined by the VA in October 2011, the Veteran asserted that while unloading a truck in service, he jumped off, twisted his right ankle and struck his back on a retaining wall. He claimed he was seen in a clinic and on crutches for three weeks and then returned to his regular duty. The evidence against the Veteran's claim includes the service treatment records, a statement from a private physician and VA examination reports. A clinical evaluation of the spine was normal on the separation examination in March 1955. Dr. A.K.S. wrote a letter to the Veteran in October 2007 and stated that it was not possible to associate his recent problems with an injury that occurred 50 years ago. A VA examination of the spine was conducted in May 2011. The examiner stated she reviewed the claims folder and medical records. The Veteran related that while in service, he fell off a truck "on his buttocks." He said he everted the right ankle and used crutches for two weeks, but did not describe any injury to the back. Following an examination, the diagnosis was lumbar strain/contusion. The examiner stated that the current permanent nerve damage masked and prevented an evaluation of the Veteran's fall onto his buttocks 60 years earlier, and observed there was no documented damage until 1978. She stated it was likely the Veteran's fall did occur, but concluded the current low back condition was not caused by or a result of a fall in service in which he landed on his buttocks. She pointed to the total lack of continuity of care needed for the lumbar spine from 1955 to 1978. She added that the X-ray evidence from 1978 did not show severe disease or degeneration, and there had not been a report or documentation of the radicular symptoms that the Veteran had since 2005. She observed that the length of time from 1954 to 1978 should have had significant and severe degenerative changes if the original fall had caused the severe radiculopathy and nerve root damage he had. The Veteran was again examined by the VA in October 2011. The diagnosis was degenerative disc disease of the lumbar spine. The examiner noted the service treatment records made no reference to a back condition, and the discharge examination showed the spine was normal. He concluded it was less likely than not that the Veteran's current back condition was secondary to service, utilizing currently available information. He commented the back condition was not a posttraumatic condition, and was a degenerative condition associated with the Veteran's age. A VA examination of the spine was conducted in April 2012. The examiner noted he reviewed the claims folder. The diagnosis was status post lumbar spine surgery with advanced degenerative disc disease/degenerative joint disease and bilateral foot drop. He opined the back disability was less likely than not proximately due to or the result of the Veteran's service-connected condition. He noted there was no objective medical scientific research evidence showing ankle problems are directly responsible for back problems, and observed the service treatment records are silent for back problems. In July 2012, the examiner who conducted the April 2012 VA examination was asked to provide an opinion that addressed whether the Veteran's right ankle disability aggravated his low back disorder. He stated there was no sufficient medical evidence in existence (objective research) to support a baseline determination of severity and that, therefore, it was less likely than not that the service-connected ankle problem aggravated the low back disability beyond a natural progression. The evidence demonstrates that a low back disability was first manifested many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). There is no indication in the record that the Veteran has a low back disorder that is associated with service The Board acknowledges the assertions of the Veteran that he has a low back disorder that is related to service or a service-connected disability. He is competent to report he fell in service, and that he had low back problems. Lay persons are competent to provide opinions on some medical issues; however, the specific issue in this case, the etiology of a low back disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no competent evidence linking any current low back disability to service, or that arthritis was manifested within one year of his discharge from service. The Board points out that even Dr. A.K.S., the Veteran's private physician who treated him for his low back condition, indicated he could not relate that problem to an injury that had occurred so many years earlier. In the absence of any indication of a low back disability, to include arthritis, for years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran's main argument is that his low back disability is related to his service-connected right ankle condition. There is, however, no clinical evidence linking the Veteran's current low back disability to service, or that it is related to, or was aggravated by, a service-connected disability. The Veteran has not provided any support for this allegation. There is a medical opinion concluding that the right ankle disorder did not cause the Veteran's low back disability. As noted above, a VA medical provider stated there was insufficient medical evidence that would establish a baseline level of severity of the Veteran's low back disability. He thus concluded it was less likely than not that the Veteran's right ankle disability had aggravated the low back disorder. The Board notes that in granting service connection based on aggravation of a nonservice-connected disability by a service-connected disability, 38 C.F.R. § 3.310(b) requires that the baseline level of severity of the nonservice-connected disability must be established. When, as in this case, it cannot be, "VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury" and service connection may be denied. Evidence concerning the degree of disability is essential to establish service connection in this context. See 71 Fed. Reg. 52744 (September 7, 2006). In the absence of such evidence, the Board concludes that the preponderance of the evidence is against the claim for service connection for a low back disability, to include on a secondary basis. In sum, there is no evidence of a low back disability, to include arthritis, in service or for many years thereafter or that it caused or aggravated by the Veteran's service-connected right ankle disability. The Board finds, accordingly, that service connection for a low back disability, to include on a secondary basis, is denied. ORDER Service connection for a low back disability, to include on a secondary basis, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs