Citation Nr: 1314580 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 05-18 590 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative disc disease (DDD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from July 1974 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 and September 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Louis, Missouri, and Muskogee, Oklahoma, respectively. In April 2007, the Board granted the petition to reopen and denied the underlying service connection claim for a lumbar spine disability. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). By way of a May 2009 order, the Court vacated in part, and remanded the portion of an April 2007 Board decision that had denied the claim for service connection for DDD of the lumbar spine. (The Court's order followed a joint motion for partial remand.) The Veteran's claim was remanded by the Board in September 2009 for additional development. In April 2010, the Board again remanded the Veteran's claim in an attempt to obtain private treatment records. The Veteran did not respond to the RO's April 2010 request to complete and return VA Forms 21-4142, Authorization and Consent to Release Information. Therefore, the RO was unable to obtain any additional records. The RO then completed the additional development to the extent feasible, and the case was then returned to the Board. In an August 2010 decision, the Board again denied the Veteran's claim of entitlement to service connection for DDD. The Veteran appealed that decision to the Court. In February 2012, the Court issued a memorandum decision, which vacated the Board's August 2010 decision and remanded the matter to the Board for further action. In August 2012, the Board remanded the appeal to obtain more medical opinion evidence. A November 2012 VA medical opinion was obtained. A review of the Virtual VA paperless claims processing system includes updated VA treatment records. These records were considered in a February 2013 supplemental statement of the case. FINDING OF FACT Degenerative disc disease is not attributable to the Veteran's period of military service. CONCLUSION OF LAW The Veteran does not have DDD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished. Through February 2003, September 2006, and April 2010 notice letters, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claim of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). While notice for the elements of a disability rating and effective date were not furnished until after the issuance of the initially appealed rating decision, the appeal was subsequently readjudicated in multiple Supplemental Statements of the Case. This course of corrective action fulfilled VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Board also finds that the February 2003 notice letter substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In February 2003, the RO notified the Veteran that VA would make reasonable efforts to obtain evidence to substantiate his claim. He was invited to submit any evidence, specifically including private medical records, in his possession. The claim was remanded in April 2010 and August 2012 to obtain outstanding medical records. The Veteran has not currently identified any outstanding medical evidence. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records (STRs) and pertinent VA treatment records have been obtained and associated with the claims file. The Veteran was afforded an adequate clinical examination and medical opinion in November 2012. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In March 2013, the Veteran's representative objected to the adequacy of the November 2012 VA medical opinion. She observed that the VA examiner failed to consider June 2001 X-rays showing degenerative changes prior to the 2002 motor vehicle accident (MVA). She also contended that the VA examiner failed to consider the Veteran's reports of back soreness and continuity of symptomatology and impermissibly dismissed his lay statements based upon a lack of contemporaneous treatment. The Board has considered the objections to the November 2012 VA medical opinion. For part of her rationale, the examiner relies on the absence of a compression fracture at any time, as opposed to degenerative changes, observed on X-ray. She explained that a compression fracture is a permanent change which should have been apparent on any X-rays following the fracture. Hence, her specific reference to the June 2001 X-ray is immaterial. In addition to reviewing lay statements of record, the examiner conducted a detailed interview on the Veteran's recollections of his back pain history. It appears that the Veteran's comments from the clinical interview somewhat vary with prior narratives given throughout the lengthy appeals period. As explained below, the Veteran has provided varying narratives to clinicians over the course of treatment for back pain. The examiner acted reasonably by assuming the Veteran's clinical interview reports were an accurate description of his medical history. Her reliance on his lay statements from the clinical interview is not misplaced merely because it varies with his prior narratives given to VA and to other treating clinicians. Likewise, the Board does not find that the examiner impermissibly rejected his statements based upon a lack of contemporaneous treatment. She specifically queried him about his subjective reports of pain from the initial injury through the first documented instance of medical treatment and cited his reports in her opinion. The Board rejects the Veteran's assertion that the November 2012 examiner did not fully consider his lay statements. In summary, the Board finds the Veteran's objections to the November 2012 VA examination report to be without merit and considers the examination report to be adequate for adjudication purposes. The Board notes that an October 2012 VA treatment note refers to potential outstanding private medical records. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). As the appeal was specifically remanded to allow the Veteran to submit private medical records in April 2010, the Veteran has notice of the ability to submit relevant private medical records. He is also represented by an attorney who stated that there was no additional evidence in November 2012 correspondence and requested Board review in March 2013 correspondence. The record also reflects substantial compliance with prior Board and Court Remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). As noted, the record includes a November 2012 VA examination report and medical opinion that are adequate for adjudication purposes. In an April 2010 letter, the Veteran was notified about outstanding private medical records identified in the record and invited to submit any records in his possession or complete an enclosed authorization and consent form to allow VA to obtain these records. VA treatment records have been associated with the claims folder. The agency of original jurisdiction readjudicated the claim in February 2013. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b)). Degenerative disc disease is not a chronic disability recognized under 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). During service in the spring of 1977, the Veteran was on maneuvers at a beach. While on the beach a truck he was in hit a hole, which catapulted him out of the back of the truck. He landed in a sitting position, facing the opposite direction. When he turned around, the truck was 50 feet behind him. He believes this in-service incident caused his current disc problems, even though he noted that his disc problem did not surface until 10 years later. See February 1993 statement in support of claim. He related the same narrative at a May 2003 VA examination and asserted that he had had a continuity of symptomatology of back pain. See May 2003 VA examination report. Service treatment records (STRs) contain a January 1977 entry noting complaints of back pain in the context of treatment for viral hepatitis. A March 1977 entry in the STRs shows that the Veteran fell off a truck, and complained of chest pain. No back pain was reported. The Veteran's July 1978 discharge examination report reflected a normal clinical evaluation of his spine. The first post-service evidence of a degenerative lumbar spine disability is a June 2001 X-ray noting degenerative changes in the lower portion of the lumbar spine. A September 2001 X-ray showed narrowing of the L4-L5 disc space and to a lesser degree the L5-S1 disc space. See September 2001 X-ray. In September 2001, the Veteran reported an ongoing history of back pain from approximately 1986 and denied any history of trauma . A May 2003 examiner diagnosed the Veteran with degenerative disc disease, noting that the examination was inconsistent. There was an acute pathology and a probable psychological component contributing to pain. A November 2006 CT Scan revealed diffuse degenerative joint disease throughout the lumbar spine, spinal stenosis at L3-L4, and broad based annular disc bulge at L5-S1. See November 2006 CT Scan. VA treatment records also contain evidence of three separate post-service events related to the Veteran's low back. Specifically, an August 2002 entry in the outpatient treatment records shows that the Veteran was being seen for back pain, noting that he was involved in a motor vehicle accident in July 2002, where his vehicle was rear-ended. An X-ray taken at the time of the examination revealed degenerative osteoarthritis of the lumbar spine, and spondylolysis of S1. An August 2003 entry shows that the Veteran complained of low back pain after bending activities while helping a friend at a carnival. The following day he had so much back pain he believed he lifted too much as well. The examiner assessed low back pain. A September 2003 entry noted that the Veteran presented with complaints of back pain secondary to an injury lifting a light desk. The Veteran was afforded a VA examination in October 2009. He stated that he began having pain in his lumbar spine after the April 1978 injury when he was catapulted out of a truck. He immediately noticed pain in his lower back and sought medical attention. He stayed in his quarters on bed rest for the remainder of the day. He continued to have low back soreness, and was discharged a few months later. After separation, he tried to do custodial work and to work as a welder. However, he was unable to do custodial work because the sweeping and mopping irritated his lower back. Although his low back continued to bother him after separation, he did not seek care on a regular basis. He reported having a CT scan of the lumbar spine in 1987, and was told that he had a herniated nucleus pulpous. In 1992 or 1993, he was recommended for surgery, which he declined. He also noted that he saw a Dr. Y. for acupuncture in 1984. (As discussed in the VCAA section above, the RO attempted to obtain these private medical records; however, the Veteran did not respond to the RO's request to complete Authorization and Consent to Release Information forms.) The October 2009 VA examiner diagnosed the Veteran with lumbosacral degenerative disc disease with spinal stenosis. Although she included a medical opinion, it has been deemed inadequate for adjudication purposes by the Court. In VA psychiatric treatment notes from July 2010, the Veteran complained about an increase in back pain. He related the narrative of injuring his back in service after being catapulted out of a truck. VA primary care notes from October 2012 show that the Veteran continued to complain about back pain and was seeking operative intervention. VA reexamined the Veteran in November 2012. He described the in-service injury when he was catapulted out of a truck. He described the impact as crunching him like an "accordion." He recalled having two days of bed rest. He did not remember if he had additional treatment. He denied any back pain until a flare-up occurred in approximately 1988. However, he reported going to a chiropractor in 1983 or so. He stated that he held multiple jobs after separation that involved significant bending activities, but denied any occupational difficulties due to back pain. He stated that he was recommended for surgery in 1993, but declined it. Clinical examination showed limited range of motion. The examiner did not observe muscle spasms or guarding. The Veteran exhibited full muscle strength, normal reflexes, and normal sensation. The examiner diagnosed lumbar degenerative disc disease. The examiner provided a negative medical opinion. She explained that injuries after falls usually involve a compression fracture of the spine. The compression fracture is painful and easily diagnosable upon X-ray. It is also usually observable on X-ray for the rest of the person's life. It was noted that the available X-rays are limited to degenerative changes and have not shown a compression fracture. She opined that the degenerative changes were more consistent with aging. She believed if a compression fracture had occurred, the Veteran would have experienced more limiting back pain. In her experience, when there is an injury in the distant past, the person usually experiences at least a few episodes of pain. However, upon clinical interview the Veteran denied having back problems shortly after separation. Due to lack of history from the Veteran and corroborative X-ray findings, the examiner concluded that it was less likely that the current back disability originated in service. As an initial matter, the record does not show that degenerative disc disease was clinically found until many years following service. The Veteran asserts that he has had a continuity of symptomatology of back pain beginning in service. 38 C.F.R. § 3.303(b); but see Walker, supra. The Board considers the Veteran generally credible in his recollections of having been thrown from a truck during service. 38 U.S.C.A. § 1154(b); Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (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."). Multiple medical providers have diagnosed degenerative disc disease of the lumbar spine. Thus, an in-service event and current disability have been demonstrated. The Board must now determine whether there is a nexus to service. The evidence in support of a nexus consists of the Veteran's reports. In this regard, he is competent to report symptoms capable of lay observation, such as back pain. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. The issue then becomes whether his reports of low back pain beginning in service are credible. In deciding whether the Veteran's reports are credible, the Board considers such factors as possible bias, conflicting statements; internal inconsistency, facial plausibility and consistency with other evidence. Buchanan v. Nicolson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden, 125 F. 3d at 1481 (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 has presented conflicting narratives regarding his history of back pain. In his November 1993 statement, he reported having a herniated disc in 1988 and asserts that he developed the herniated disc because of the initial injury. In a September 2001 report, he dates his history of back pain to approximately 1986 and denied any remote trauma. VA treatment notes from August 2002, August 2003, and September 2003 reflect complaints of low back pain in the context of then-recent strenuous activity. At the October 2009 VA examination, the Veteran presented a narrative of having had back pain beginning with the in-service injury . He specified that it interfered with his various post-service occupations. He relates having chiropractic treatment in 1984. At the November 2012 VA examination, the Veteran could not recall having back pain until 1988. However, he also reported going to a chiropractor sometime in 1982 or 1983. He denied any occupational interference from back pain at the jobs he had taken immediately after service. Overall, the Veteran's reports are inconsistent. Caluza, 7 Vet. App. 498 at 510-511. These inconsistencies are greater than those normally expected of a witness who truthfully tries to recount the same story over and over. Most telling is the September 2001 report where he denied any remote history of back trauma and dated his onset of back pain to approximately 1986. If the in-service injury was as traumatic as asserted, it is highly unlikely the Veteran would somehow fail to remember it when specifically queried by a treating clinician about the history of his back symptoms. Madden, 125 F. 3d at 1481. Additionally, the November 2012 examiner provided medical reasons for rejecting the Veteran's account-namely that an injury of the back as asserted by the Veteran would have likely been accompanied by pain; however, the service record is silent regarding such a complaint, even when the Veteran reported the fall and complained of chest pain, and even when examined for discharge. Not only does the examiner provide an explanation for rejecting the notion that the back could have been injured but not caused symptoms for so many years, it defies common sense to believe that the Veteran injured his back in the way that he claimed he did, but was without pain at the time or for many years. (The narrative presented to the November 2012 VA examiner also strongly indicates the absence of difficulties for several years after service.) If the Veteran's report of having symptoms from the time of the in-service fall is to be believed, it becomes very hard to reconcile such a report with the other records, not only because of his inconsistent statements but because of the absence of any complaint, such as at the time of his discharge. (That the Veteran has made arguments both that he in fact had continued symptoms since the injury and that it was the type of injury that would not have caused symptoms until years later is additional proof of the unbelievable nature of his account.) The evidence weighs against finding the Veteran credible regarding continuity of symptomatology beginning in service. Furthermore, the Veteran has a self-interest in reporting an in-service back injury etiology for the present claim. See Cartwright 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). For these reasons, the Board considers the Veteran's assertion of a continuity of symptomatology to be incredible. The competent medical evidence weighs against the claim. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The November 2012 VA examiner provided a negative opinion. In making her determination, she conducted a thorough clinical interview and examination. Her opinion is supported by a detailed rationale based upon clinical experience. It reflects careful consideration to the Veteran's narrative as presented during clinical interview and provides a reasoned basis for rejecting the Veteran's account of continued symptoms since service. The rationale is plausible and consistent with the record. It is uncontroverted by any other medical opinion evidence. The Board considers the December 2012 VA medical opinion to be highly probative and weigh against the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In summary, for the reasons stated above, the preponderance of the evidence is against the claim; there is no doubt to be resolved. ORDER Service connection for degenerative disc disease (DDD) is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs