Citation Nr: 1316294 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-03 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1966. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The Board denied the claim on appeal in a January 2011 decision. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision in July 2012 that vacated the Board's January 2011 decision, as the Court determined that the Board failed to properly consider the Veteran's report of a continuity of symptomatology in its decision. The Court remanded the case to the Board for readjudication of the claim. FINDING OF FACT The preponderance of the evidence does not show that the Veteran's current low back disorder is related to his military service or any incident therein. CONCLUSION OF LAW A low back disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). The RO's August 2007 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The RO's August 2007 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to a May 2010 Board remand, the RO obtained and associated with the claims file the most recent VA treatment records, dated from March 2008 through August 2010. The RO attempted to obtain the Veteran's treatment records from his family doctor, Dr. F.C. In a July 2010 letter, the RO requested that the Veteran complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for Dr. C., to obtain all relevant treatment records. However, the record reflects that the Veteran did not respond. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Furthermore, the Veteran was also provided with VA examinations to determine the etiology of his low back disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In compliance with the Board's May 2010 remand, a medical opinion was obtained in August 2010 as to whether the Veteran's low back disorder is related to his military service. The Board finds the August 2010 VA examination adequate as it was based upon a complete review of the Veteran's claims file, and the VA examiner provided written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, while the Board directed on remand that the VA examination to be conducted by an orthopedic specialist, the August 2010 VA examiner indicated that there were no orthopedic specialists performing VA examinations at the local VA Medical Center at that time. Under these circumstances, the Board finds that the August 2010 VA examination was adequate as it was accomplished by a competent VA physician. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (stating that "the Board is entitled to assume the competence of a VA examiner.") Based on the foregoing, the Board concludes that there has been substantial compliance with its May 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Moreover, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). The Veteran is seeking service connection for a low back disorder. He contends that his current low back disorder is the result of a back injury he sustained in 1965 while on active duty. During the May 2010 hearing, he testified that he injured his back while serving as a wheel mechanic, when he fell from a five-ton truck and hit his back on a metal bar on the ground. The Veteran reported that he has experienced constant back pain since service. Service treatment records document the Veteran's January 1966 report of back pain after heavy lifting. The physical examination revealed tenderness in the L1 and L2 region. On a subsequent April 1966 separation report of medical history, the Veteran reported having recurrent back pain. However, the associated April 1966 separation report of medical examination shows that the clinical evaluation of the spine was normal. A March 2008 VA x-ray examination of the spine revealed degenerative facet arthropathy at L4-L5, with grade 1 anterolisthesis, osteopenia, and mild disc degeneration at L1-L2. At a VA examination in March 2008, the Veteran reported having constant back pain that had become progressively worse since its onset. He stated that he was treated for a lumbar strain during his military service in January 1966 after lifting heavy objects. The Veteran reported a history of pain, stiffness, and spasms, but denied a history of trauma to the spine. In an April 2008 addendum, the VA examiner relayed magnetic resonance imaging (MRI) findings of mild foraminal narrowing at the L4-L5 disc. A June 2009 orthopedic consultation, assessed chronic low back pain, secondary to facet arthropathy and degenerative disc disease. An October 2009 orthopedic consultation note includes the Veteran's report of chronic back pain for many years, with central low back pain that radiated down the to the posterior aspect of both buttocks into the posterior thighs. The Veteran reported that he was injured during an in-service accident in the 1960s and that he had experienced chronic nerve damage, with numbness in both lower extremities since the time of his injury. The examiner noted that past x-ray films showed spondylolisthesis at L4-L5 and degenerative facet arthrosis at L1-L2. Subsequent VA records show treatment for the Veteran's low back symptomatology, to include epidural injections in April and May of 2010. A June 2010 VA treatment record includes the Veteran's report that he sustained an injury in service while working on a five-ton diesel when he fell from the vehicle and landed on his back across a steel rail. He stated that he went to sick call and was told that he had a L1-L3 injury. He reported having increasing pain over the years. The treating physician noted the Veteran's history of degenerative disc disease and the December 2009 MRI findings of mild L4 and L5 spondylolisthesis, with facet arthropathy. The Veteran underwent a second VA examination in August 2010. The examiner reviewed the claims file and listed all records reviewed in detail, including the service treatment records reflecting the Veteran's January 1966 report of back pain and his April 1966 report of recurrent back pain prior to his separation. The examiner also noted the Veteran's post-military reports of low back pain and the treatment of his symptoms. During the examination, the Veteran reported a history of a back injury in service and that he had chronic problems of low back pain since that time. The clinical examination revealed a diagnosis of low back condition, with grade I degenerative spondylolisthesis of the L4 on L5 secondary to mild degenerative fact changes. The examiner then stated In my medical opinion, the grade I degenerative spondylolisthesis of L4 on L5 secondary to mild degenerative facet changes is not due to or a result of [the Veteran's] military service. The Veteran was seen for a one time visit regarding lumbar strain. I do not have any documentation of an abnormal x-ray while in the military. The Veteran had a normal physical examination upon discharge. Initial examinations with the VA reported no complaint of low back condition. In my medical opinion, the grade I degenerative spondylolisthesis of L4 on L5 to mild degenerative face changes [is] a result of the normal aging process and is not a result of his military service. In a statement received in April 2010, the Veteran reiterated his contention that he sustained a injury to his back during service and reported having back problems since the time of his injury. He reported that between 1967 and 1986, following his discharge, he went to various doctors due to his back problems, and he stated that he was most often told that his back problems were due to the fact that he was "a big guy." It was not until 1986 when his private physician, who the Veteran reports is now deceased, informed him of the problems in the L1-L3 area of his back. He reported that he later sought treatment for his back condition at VA medical facilities beginning in 2001. In light of the foregoing evidence, the Board finds that service connection for a low back disorder is not warranted. The Board recognizes that the medical evidence shows a current diagnosis of grade I degenerative spondylolisthesis of the L4 on L5 disc secondary to mild degenerative facet changes. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the preponderance of the evidence does not show that this disorder is related to the Veteran's military service. The Veteran maintains that his current low back disorder is related to an in-service injury during which he fell from a five-ton truck. Although his service treatment records do not reflect this incident, they do show that he complained of back pain after heavy lifting in 1966 and reported having recurrent back pain at the time of his separation. The Board has considered the Veteran's statements regarding his in-service back injury and his report of continued low back pain since service. The Veteran's contentions regarding his in-service back injury and continuing low back pain, capable of lay observation, are competent evidence of what he actually observed and was within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board also finds the Veteran's statements as to his low back pain credible in this regard. However, the preponderance of the evidence does not show that the Veteran has a chronic low back disability that is attributable to his military service, to include his in-service back injury and symptomatology. Here, the Board highlights that although the Veteran reported having recurrent back pain at service separation, no spine abnormalities were found during the clinical examination performed in April 1966 just prior to his separation. The Board also finds highly probative the August 2010 VA examiner's opinion. Based on clinical and diagnostic testing of the Veteran and a review of the claims file, to include consideration of the Veteran's report of a continuity of low back symptomatology, the examiner opined that the Veteran's current low back disorder is not a result of his military service. Instead, the August 2010 examiner attributed the Veteran's grade I degenerative spondylolisthesis of L4 on L5 to the normal aging process. The August 2010 VA examiner's opinion is considered highly probative, as it is definitive, based upon a complete review of the Veteran's claims file and clinical examination of the Veteran, and is supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on 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.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the opinion is found to carry significant probative weight. See Prejean v. West, 13 Vet. Ap. 444, 448-49 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against his claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In reaching the above determination, the Board again notes that consideration has been given to the Veteran's statements that his current low back disorder is related to his military service. Lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1313 (Fed. Cir. 2006). However, grade I degenerative spondylolisthesis is not a disability subject to lay opinions as to diagnosis and etiology. While symptoms of the disorder, such as pain, may be reported by a layperson, the diagnosis and etiology of a disorder require medical training. The Veteran does not have the medical expertise to diagnose the claimed disorder, nor does he have the medical expertise to provide an opinion regarding its etiology. Thus, the Veteran's lay assertions as to the etiology of current low back diagnosis are not competent or sufficient in this instance. Jandreau, 492 F.3d 1372. As the preponderance of the competent and probative evidence is against a finding that the Veteran's claimed low back is related to service, service connection for a low back disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ORDER Service connection for a low back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs