Citation Nr: 1315829 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-05 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Louisville, Kentucky. A July 2009 Board decision denied the Veteran's claim. The Veteran appealed the Board decision, and an August 2011 decision of the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded this matter to the Board for further review. In March 2012, the Board remanded the claim for further development. FINDING OF FACT The Veteran's low back disability was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1110, 1112(a), 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for a low back disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102 , 5103(a), 5103A, 5106 (West 2002); 38 C.F.R. § 3.159 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court of Appeals) held that VA is required to (1) inform a claimant of any information and evidence not of record that is necessary to substantiate the claim, (2) which the VA will seek to obtain, (3) which the claimant is expected to provide, and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The Board notes, however, that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (revising 38 C.F.R. § 3.159(b) to eliminate fourth element of the notice requirement of Pelegrini II, effective May 30, 2008). Thus, any error related to this requirement is harmless. The VCAA letter dated April 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The VCAA letter informed the Veteran that additional information or evidence was needed to support his claim, and the letter asked him to send the information or evidence to VA. See Pelegrini II, 18 Vet. App. at 120-121. In addition, the Board notes that the Veteran was given appropriate notice according to Dingess in the April 2006 VCAA letter. See Dingess v. Nicholson, 19 Vet. App. 473, 488-489 (2006). Because, however, the Board has concluded that the preponderance of evidence is against the claim for service connection for a low back disability, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See id. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records, private facility records, and VA medical records are all in the file. The Board finds that the record contains sufficient evidence to make a decision on the claim. The record reflects that the Veteran's attorney specifically requested that VA obtain records from the State of Kentucky that reportedly reflect that the Veteran obtained unemployment benefits immediately upon leaving the military. The RO subsequently sent appropriate release forms to the Veteran with a request that he complete and return those forms, which would allow the RO to obtain records from the State of Kentucky. The RO also contacted the Kentucky Office of Unemployment by telephone in December 2008, which confirmed that no records could be released without the Veteran's authorization. No response was ever received from the Veteran, and the RO once again explained in the Supplemental Statement of the Case in February 2009 that such records could not be obtained without the Veteran's authorization. As the Veteran has not provided VA with authorization to obtain these records, the Board finds that the duty to assist in obtaining relevant records has been satisfied to the extent possible under the circumstances. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Board notes that the Veteran was provided with VA examinations in January 2007 and April 2012. The Court has found that the Janaury 2007 VA examination was inadequate. However, in regard to the April 2012 examination, before rendering his opinion, the VA examiner conducted a thorough examination and interview of the Veteran, and the VA examiner thoroughly reviewed the entire claims file, including all of the Veteran's service treatment records (STRs) and private treatment records. The Board finds, therefore, the April 2012 VA examination and opinion sufficient upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Legal Criteria and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). 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). Congenital or developmental conditions are not personal injuries or diseases and, therefore, generally may not be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). There are, however, certain limited exceptions to this rule. Service connection may be granted where during service a congenital or developmental defect is subject to a superimposed injury or disease. VAOPGCPREC 82-90 (July 18, 1990). The Veteran claims that he has suffered from a low back disability since he injured his back in 1999 in service in the United States Navy. As an initial matter, the Veteran's December 1997 entrance examination report reflects no complaints of any back condition, although the report of medical history completed by the Veteran in conjunction with the examination reflects that, in 1994, at the age of 15, the Veteran was in a motorcycle accident and fractured both of his forearms and suffered a head injury. A December 1999 service treatment record reflects that the Veteran was treated at a Naval hospital for complaints of lower back pain that he said started when he bent over in the shower to dry his toes and heard a "popping" sound come from his lower back. The Naval hospital treatment records note that the Veteran reported no history of back pain. He was diagnosed with a back strain and prescribed pain reliever, but he was not placed on restricted duty. An October 2001 service treatment record reflects that the Veteran was treated again for lower back pain that he reported started when he was coming out of a "modified Zebra hatch." The Veteran was diagnosed with a back strain or sprain ("most likely from the gluteus medius and lower latissimus dorsi in origin"). The Veteran was prescribed pain reliever and instructed to ice the area, and he was placed on limited duty for four days. The April 2002 separation examination report reflects that the Veteran's back was normal. On the Veteran's April 2002 report of medical history prepared the same day, when asked whether he had "recurrent back pain or any back problem," the Veteran selected "no." Regulations provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). An October 2005 private treatment record reflects that the Veteran sought treatment for lower back pain and right lower extremity radicular pain. The physician recorded impressions of spondylosis and malalignment of the lamina at L5-S1 "which may be congenital." The private physician further opined that "a posttraumatic cause is thought to be less likely but cannot be excluded." There is no indication that the private physician had an opportunity to review the claims file, including the Veteran's STRs, and no mention is made in the private physician's report of the two in-service back muscle strains. The Veteran was afforded a VA examination in Janaury 2007. In a memorandum Decision of July 2009, the Court found that the examination was inadequate for appellate review. Accordingly, the Board will not consider the findings or opinion rendered in that examination. The Veteran was afforded another VA examination in April 2012. The examination report reflects that the Veteran reported he injured his back in service in 1999 when he fell down the stairs in the ship he was stationed at. He stated he fell down several steps and was beat up and sore all over and had some back pain. He further stated that later on that evening he bent over in the shower and felt excruciating low back pain and heard a snap. He reported daily low back pain and an area that feels puffy. He further stated he has recurrent pain of his posterior right leg with a tingling sensation but no numbness. The VA examiner interviewed the Veteran and reviewed the entire claims file. He also reviewed x-rays of the Veteran's back taken the same day. The Veteran was diagnosed with a low back disability including mild apex left lumbar scoliosis, mild loss of disc space at L5-S1, minimal osteophyte formation, and unilateral spondylosis at L5 on the right. The examiner opined that the Veteran's disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. He reasoned that it would be unlikely that the Veteran would have no recurrent back pain or back problems at the time of separation from service if he had suffered a back injury in service of the degree and severity to give rise to a chronic lumbosacral disorder. If the in-service back injury in 1999, as claimed, were the etiology of the current chronic lumbosacral condition, one would expect a post-service evaluation of the low back sooner than 2005. This is approximately three years after separation from service and approximately six years from the time of the in-service injury. He further opined that the current low back condition is not a congenital defect. He stated that the evidence per the MRI of disc disease including disc extrusion as well as facet osteoarthritis. These conditions are acquired, most likely resulting from a long cumulative effect of weight bearing, bending, lifting and other activities that place a continuous strain on the low back. The MRI scan mentioned asymmetry of the lamina that was felt to possibly be congenital in nature. This finding represents a size and/or shape difference in part of the vertebral body from one side to the other. This finding is not the etiology of the current low back problems. Also, there is no objective evidence of any kind that would suggest aggravation of this asymmetry. Regarding the motorcycle accident at age 15, he opined that there is no objective evidence that would suggest there was any aggravation of a low back condition caused by the motorcycle accident at age 15. Review of the entrance examination shows that the history of the motorcycle accident was addressed. At that time, the Veteran was found to have a normal physical examination of the back, and it was felt that there were no sequelae secondary to the motorcycle accident. Regarding the 1999 in-service injury, he opined that the fact that a muscle strain was diagnosed in 1999 is not an event that in and of itself represents objective evidence to suggest the current low back condition is causally related to active duty military service. It is very common to suffer from acute low back strain secondary to routine activities. Acute low back strain is one of the more common musculo-skeletal conditions that prompts patients to seek medical care. The objective evidence suggests that the muscle strain diagnosed in December 1999 resolved with treatment. There is no evidence to suggest that this muscle strain caused a chronic low back condition. Regarding the in-service complaints of radiating pain down his right leg, he stated that the December 1999 complaint of radiating pain while walking and the October 2001 in-service complaint of pressure on the right leg while walking could possibly have constituted discogenic signs or symptoms while in service. These symptoms appear to be consistent with sciatica and not radiculopathy as recent EMG studies show no radiculopathy. Sciatica is a condition that is frequently transient and prone to resolution. The objective evidence suggests that these in-service problems resolved prior to discharge from active service. Even with a muscle strain of the low back sciatica is possible related to transient disc bulging. It is very common for this pathology to completely resolve with appropriate treatment as it appears it did in the Veteran's case. The Board finds the April 2012 VA examiner's opinion as to the etiology of the Veteran's low back disability to be the most persuasive evidence of record as to whether or not the Veteran's low back disability is related to service. In rendering his opinion, the VA examiner took into account his own examination and interview of the Veteran, the x-rays taken that same day, his review of the entire claims file, including all of the Veteran's STRs and private treatment records, and he considered the Veteran's history of lower back strains. The examiner also considered the findings prior to entering service and the Veteran's post- service employment history. The Board notes that there is no contrary medical evidence of record linking the Veteran's low back disability to service. While the private report raised the possibility of a "posttraumatic cause" to the asymmetry of the lamina at L5-S1 that was observed on MRI, the examiner also specifically found such a cause "less likely." Furthermore, the examiner did not discuss the etiology of any other aspect of the findings noted on the MRI, nor did he make any reference to any back injury having been sustained during military service. Therefore, the Board affords his opinion little probative weight. The Board notes that the private physician noted in his report that the Veteran's low back disability may be, in part, congenital in nature. As noted, congenital or developmental conditions are not personal injuries or diseases and, therefore, generally may not be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). While service connection may be granted when a congenital defect is subject to a superimposed injury, such has not been shown in the Veteran's case. Indeed, the April 2012 VA examiner specifically noted the MRI findings of a congenital asymmetry of the lamina and opined that this was not the etiology of the Veteran's current back condition. Moreover, he noted that there was no objective evidence of any kind that would suggest any aggravation of the asymmetry. Similarly, the private examiner found that a post-traumatic cause of the asymmetry of the lamina at L5-S1 was unlikely, and gave no indication that any aspect of the Veteran's current lumbar spine disability was otherwise related to military service. Therefore, the greater weight of the evidence is against finding that this asymmetry was subject to a superimposed injury in service. Regarding the possible existence of any back disability prior to service which could have been aggravated by service, the Board notes that the April 2012 VA examiner noted the reported motorcycle accident at age 15 and found that there was no objective evidence that would suggest aggravation of a low back condition caused by the motorcycle accident. Indeed, he noted that there was no evidence of any low back condition resulting from the motorcycle accident. He noted the entrance examination and the findings associated with the same which found that there was no sequelae secondary to the motorcycle accident. Regarding the Veteran's complaints of radiating pain on his right leg while in service, the April 2012 VA examiner noted that while these could have constituted discogenic signs or symptoms while in service, in the Veteran's case, these symptoms appeared to be sciatica and not radiculopathy. He specifically noted the most recent EMG findings of no radiculopathy. Furthermore, he explained that the objective evidence shows that the in-service problem was transient and not chronic, that it resolved prior to discharge and that this is common for this pathology. The only favorable evidence that indicates the Veteran's back disability is related to active military service is the Veteran's own statements as offered during the course of VA examination, and as expressed through his attorney. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, 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. In such cases, the Board is within its province to weigh that testimony and 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, 310 (2007). Medical evidence is not always, or categorically, required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In the Veteran's case, the Veteran is competent to report back pain during and after service. However, the Board notes that the service treatment records do not show that the Veteran was placed on restricted duty at the time of the 1999 in-service injury. The treatment consisted only on the prescription of pain relievers. Moreover, there is no documentation that the Veteran sought additional treatment for his back pain in 1999 even though he was advised to follow-up in 72 hours if not better. Rather, the contemporaneous records shows that he did not seek treatment for back pain until 2001 when he reported injuring his back again. Thereafter, the Veteran specifically denied any history of recurrent back pain at separation from service, which is consistent with his own admission that he was not experiencing symptoms at the time he left active service. Given the inconsistencies between the Veteran's report as to the circumstances surrounding his 1999 treatment, and his admission that he was not experiencing symptoms at separation, the Board must find that there is no credible evidence of a continuity of symptomatology since service. Moreover, as noted, while the Veteran is competent to report symptoms, he is not otherwise competent to provide an etiology as to the current underlying back disability. As noted, the April 2012 VA examiner took into account his own examination and interview of the Veteran, the x-rays taken that same day, his review of the entire claims file, including all of the Veteran's STRs and private treatment records, and he considered the Veteran's history of lower back strains. The examiner also considered the findings prior to entering service and the Veteran's post- service employment history. The Board ultimately finds the opinion of the health care specialist to be more probative as to the nature and etiology of his current disability than the Veteran's own lay assertions. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the claim for service connection for a low back disability, and the benefit-of-the-doubt rule is not for application. There is not an approximate balance of evidence. See Gilbert v. Derwinski, 1 Vet. App. at 54; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a low back disability is denied. ____________________________________________ MICAHEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs