Citation Nr: 1314568 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 07-27 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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). The Veteran served on active duty from May 1944 to May 1946. He is considered a combat Veteran. Based on a January 2011 Memorandum Decision of the United States Court of Appeals for Veterans Claims (Court), the Board of Veterans' Appeals (Board) reopened and remanded the issue on appeal in September 2011 to the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) to obtain a VA examination and nexus opinion. A VA evaluation was conducted later in September 2011. This case was again remanded in September 2012 for an addendum clinical opinion. Such opinion was obtained in September 2012. The claim was most recently remanded by the Board to the RO in January 2013 to obtain Social Security Administration (SSA) records. A February 2013 Formal Finding of Unavailability of SSA records is of record. As a VA examination and nexus opinion was obtained in September 2011, an addendum opinon was obtained in September 2012, and information on the Veteran's SSA records has been added to the claims files, in response to the Board's remands, there has been substantial compliance with the September 2011, September 2012, and January 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). The Veteran testified at a RO hearing before a Decision Review Officer (DRO) in January 2008, and at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2009. Transcripts of the hearings are of record. FINDING OF FACT The Veteran does not have a low back disability that is causally related to his active military service. CONCLUSION OF LAW A low back disability was not incurred or aggravated by active service, nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in December 2006, prior to adjudication, which informed him of the requirements needed to reopen a claim, and to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the December 2006 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the December 2006 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation with nexus opinion was most recently obtained in September 2012. 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 September 2011 VA opinion, considered in conjunction with the September 2012 addendum opinion, obtained in this case are adequate, as they were predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his May 2009 videoconference hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the DRO and/or Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from the Military Order of the Purple Heart. The representative, DRO, and the VLJ, asked questions to ascertain the nature of any in-service event or injury and whether the Veteran's current disability is related to his complaints during service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the DRO and VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for a low back disability. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of osteoarthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment reports do not reveal any complaints or findings of a low back disability. His spine was noted to be normal on discharge medical examination in May 1946. The Veteran was hospitalized at a VA hospital in April 1949 with complaints of stomach problems and dizziness. He also noted some aching in his back, hips, and shoulders when he worked or drove a car for "very long." X-rays of the lumbosacral spine and hips were within normal limits. The diagnosis was gastrointestinal reaction, mild to moderate. The examiner concluded that the Veteran's complaints were essentially psychosomatic. A claim for service connection was received from the Veteran in May 1949 for nervous indigestion and rheumatism, which he indicated started soon after service discharge and was getting worse. The Veteran complained on VA hospitalization in November 1966 of right-sided sciatica and dull backache for the previous week, with chronic problems since 1957. X-rays were reported to be normal. There was no sign of a herniated disc. The discharge diagnosis was acute and chronic low back strain. The Veteran was hospitalized at a VA facility from August to October 1969 with severe backache and left-sided sciatica, progressive for the previous two weeks. He reported a history of right-sided sciatica several years ago. X-rays of the lumbosacral spine were noted to be essentially normal. Herniated disc with left sciatica was diagnosed. According to an October 1969 statement from J. J. Baggett, M.D., he treated the Veteran on various dates in 1946 for back and leg pain. The Veteran complained on VA examination in January 1970 of a history of back and hip problems since service, with the back pain starting soon after service discharge. X-rays of the lumbosacral spine showed moderate narrowing at L5-S1. The diagnosis was degenerative disc disease at L5-S1 on the left without neurological involvement. According to a January 1972 statement from Dr. Baggett, he treated the Veteran at approximately two week intervals from July to December 1946 for severe back pain with radiation and for a nervous condition. Although the Veteran attempted to be admitted to a VA hospital in December 1946, and was told he would be contacted when a bed was available, he was never contacted. Dr. Baggett continued to treat the Veteran until 1949, at which time he was admitted to a VA hospital; he had also treated the Veteran on numerous occasions since that hospital admission. The Veteran was provided a VA aid and attendance evaluation in January 1980. He complained of left knee and back problems. The pertinent diagnoses were L5-S1 disc and osteoarthritis of the lumbosacral spine. The Veteran was hospitalized later in January 1980 at a VA hospital for left knee disability. The discharge diagnoses included chronic lumbosacral strain, narrowed L5-S1 interspace, and osteoarthritis of the lumbosacral spine. VA treatment reports beginning in August 1994 are of record and show treatment for low back pain. According to a March 2007 statement from J. M., the former secretary to Dr. Baggett, she remembers transcribing a letter for the Veteran from Dr. Baggett concerning the Veteran's stomach, back, and nerve problems. It was noted that these records dated back to soon after the Veteran was discharged from service. According to a statement from B. G., received by VA in May 2007, he had known the Veteran all of his life and remembered that the Veteran had tried to farm when he left service but had to quit because of back, hip, leg and stomach pain. The Veteran had tried to be hospitalized at a VA hospital after service discharge but was not admitted. The Veteran testified in support of his claim at a personal hearing at the RO in January 2008. He testified at his Board videoconference hearing in May 2009 that his service duties aboard ship, such as carrying heavy loads, caused his low back problems, for which he did not seek treatment in service because of his sense of obligation to do his duty; and that he did receive treatment for his low back beginning soon after service discharge, as noted by Dr. Baggett and by the lay statement from his friend. A VA aid and attendance evaluation was conducted in December 2009. The diagnoses included arthritis. The Veteran complained on VA compensation and pension evaluation in September 2011 of a history of low back pain since service. Physical examination showed loss of low back motion, pain on motion, atrophy from disuse, and mild radiculopathy on the left. After review of the record and examination of the Veteran, the examiner concluded that the Veteran's low back disability was less likely than not incurred in or caused by service because the evidence does not show any low back disability on service discharge evaluation in May 1946 or when the Veteran was hospitalized in 1949 and because the initial evidence of a chronic low back disability was not until 1969. An Addendum to the September 2011 VA evaluation was obtained from the VA examiner in September 2012. After another review of the record, which included the statements from Dr. Baggett and the lay statements in support of the claim, the examiner continued to conclude that the Veteran's low back disability was less likely than not incurred in, including presumptively, caused by, or aggravated by service because there was a normal back examination on discharge evaluation in May 1946, because there was no notation of a back problem during a week of hospitalization in April 1949, because there were inconsistencies in the Veteran's recollections, and because the Veteran's post-service employment in a service station and as a market owner would have put a strain on his back. The VA examiner noted but discounted Dr. Baggett's statements because if Dr. Baggett had treated the Veteran for a significant back disability every two weeks from July to December 1946, the disability should have been noted during the week of VA hospitalization in 1949. According to a February 2013 Formal Finding of Unavailability of SSA records, the Veteran's SSA record are unavailable because the records had been destroyed. The Veteran also indicated that he had destroyed his copy of the SSA records. There is at least some evidence on file both for and against the Veteran's claim for service connection for a low back disability. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the September 2011 and September 2012 VA nexus opinions against the claim to be of more probative value, when considered along with the other evidence of record, than the October 1969 and January 1972 statements from Dr. Baggett in favor of the claim. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The Veteran is a combat Veteran. As noted above, although Section 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and active service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Consequently, the Veteran's complaints of low back pain in service are considered credible. Although Dr. Baggett treated the Veteran for low back pain beginning in late 1946, Dr. Baggett does not provide a diagnosis of a chronic low back disorder. Moreover, Dr. Baggett did not review the evidence of record and provide a nexus opinion with rationale linking a current low back disability with service. In contrast, the September 2011 and September 2012 opinions against the claim are based on a review of the entire record and include a rationale. Even if the Veteran incurred back pain in service, no objective disability was found on physical evaluation of the spine in May 1946. X-rays of the lumbosacral spine were considered normal in April 1949, and the Veteran's complaints were considered psychosomatic. The initial post-service diagnosis of a low back disability is not until 1966 when low back strain was diagnosed, and a herniated disc was diagnosed in 1969. The Board also notes that the Veteran indicated during VA hospitalization in November 1966, when he complained of right-sided sciatica and dull backache for a week, that his condition had been chronic since 1957, which is over ten years after service discharge. The hearing testimony and lay statements on file have been taken into consideration in this decision. Although a lay person, such as the Veteran and his friend, are competent to report the Veteran's subjective low back symptoms, such as pain, they are not competent to diagnose a chronic low back disability, such as degenerative disease, and are not competent to provide an opinion as to etiology. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving osteoarthritis. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the Veteran testified in May 2009 that he has had low back pain since service, the medical evidence as a whole does not support his contentions. The Board would note that pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs