Citation Nr: 1317874 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-12 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from July 1948 to April 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has previously been before the Board, most recently in March 2013, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT A low back disability is not etiologically related to the Veteran's active service and thoracolumbar spine arthritis was not present within one year of the Veteran's separation from active service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service and the incurrence or aggravation of thoracolumbar spine arthritis during active service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed a letter in June 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The June 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service medical records are of record. VA Medical Center and private treatment notes have been obtained. The Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. 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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease initially diagnosed after service, 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). To prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of that service, the arthritis shall be presumed to have been incurred or aggravated in service, even though there is no evidence of the arthritis during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he has a low back disability that is related to his active service. Specifically, the Veteran has reported that his low back disability is a result of parachuting while in active service. He claims that if parachuting has been found sufficient to have caused his service-connected cervical spine disability, then it should also be sufficient to have caused his low back disability. A review of the service medical records is negative for any treatment for or diagnosis of a low back disability while the Veteran was in active service. In April 1952, the Veteran was afforded a separation examination. A review of the examination report is absent any indication that the Veteran reported a low back disability at that time. Additionally, the Veteran's spine was found to be clinically normal upon examination at the time of his separation. A review of the post-service medical evidence shows that the Veteran has received intermittent treatment for his low back disability from both private providers and at the VA Medical Center. In a May 2008 letter, the Veteran's private physician, Dr. J.W., reported that he had been treating the Veteran for many years and had followed him in the past for problems with his low back. Dr. J.W. noted that the Veteran had degenerative disc disease (DDD) for many years. Dr. J.W. noted that the Veteran had provided him with a history of being a paratrooper during active service and noted that the Veteran had reported making many very heavy landings during that time where he put stress on his back. However, Dr. J.W. reported that the Veteran could not recall experiencing a specific injury to his spine during that time. Dr. J.W. further reported that X-rays obtained in April 2008 revealed significant cervical and lumbar spine DDD. For those reasons, Dr. J.W. opined that it was highly likely that the Veteran's service as a paratrooper added significantly to his DDD and that disability should be service-connected. In a July 2008 letter, Dr. J.W. noted that the Veteran was a paratrooper during active service and suffered a significant lumbar spine injury during that time. He reported that over the years, the Veteran's lumbar spine disability had gotten progressively worse and the most recent magnetic resonance imaging scan (MRI) revealed degeneration of the last two intervertebral discs with bulging disc protrusion posteriorly at L5-S1 with moderate central spinal stenosis. Dr. J.W. reported that the disability had caused the Veteran a lot of difficulty and was certainly related to his history as a paratrooper. The Board notes that treatment notes and imaging reports confirming Dr. J.W.'s statements in his May 2008 and July 2008 letters are not of record. At a June 2009 VA examination, the Veteran reported that while in active service he had several "bad" parachute jumps. He reported that once he had a hard landing after tangling with another jumper and another time he had a landing hard enough that the stock of his gun was broken and his canteen crushed in the impact. He reported experiecing multiple joint pains following those landings. The Veteran was noted to have a total of 25 parachute jumps and two combat jumps during active service. X-rays of the lumbosacral spine at that time revealed attempted sacralization of L5 with disc space narrowing at L5-S1 and mild degenerative changes throughout the lumbar spine. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the examiner diagnosed thoracolumbar spine degenerative disease. The examiner opined that the Veteran's low back disability was less likely as not caused or aggravated by active service. The examiner noted that there were no service records showing complaints of back pain, arthritis, or other back ailments. At an October 2011 VA examination, the Veteran again related his complaints of back pain to his parachute jumps in active service. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the examiner diagnosed low back pain and noted that X-rays revealed degenerative changes of the lumbar spine. The examiner opined that it was less likely as not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury, or illness. The examiner noted that there was no record in the service medical records documenting evalution or management for any medical conditions that might be related to the Veteran's current complaints of low back pain. The examiner noted that the reported parachute jump injuries during active service would not be expected to result in a chronic low back condition or residuals and that the character of the Veteran's reported back pain was more consistent with claudication type of pain due to peripheral vascular disease. At a December 2012 VA examination, the Veteran again reported his 27 parachute jumps during active service, indicating he had several "hard" landings. The Veteran also reported that he remembered first injuring his back during a parachute jump in 1949 and that his low back had been intermittently painful since that time. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the examiner diagnosed lumbar strain and lumbar spine degenerative joint disease (DJD). In January 2013, the Veteran's claims file was returned to the December 2012 VA examiner for an addendum opinion regarding the etiology of the Veteran's low back disability. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran did not develop mild DJD of his lumbar spine until most likely the last 10 to 15 years and that there was no documented evidence of treatment for a low back disability until June 2009, when an X-ray revealed mild DJD. Additionally, the examiner noted that there was no record of treatment for a lumbar spine related injury in the Veteran's service medical records and there was no consistent history of ongoing lower back problems following his discharge from active service in 1952. The examiner noted that the Veteran's mild DJD of the lumbar spine was age related and, in fact, unusually minimal for a person 82 years old. The examiner noted that it was a well known medical fact that had the Veteran sustained significant lumbar spine trauma in the 1949 to 1952 timeframe. However, he would have developed DJD of his lumbar spine both much earlier and to a much more severe extent. In April 2013, the Veteran's claims file was again returned to the December 2012 VA examiner for another addendum opinion. At that time, the examiner again opined that the Veteran's low back disability was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reiterated the reasoning provided in the January 2013 addendum opinion and added that despite the fact that the Veteran had in-service parachute jumps in the 1949 to 1952 timeframe, he did not sustain any significant injuries or trauma to his lower back at that time. The examiner reiterated that the Veteran's lumbar spine DJD was very minimal for his age. The examiner noted that it was a well accepted medical fact that trauma to the joints and spine can cause early DJD to develop. However, the examiner further noted that if the Veteran had developed early DJD, that DJD would be severe in nature at this point in his life. For those reasons, the examiner noted a respectful disagreement with the July 2008 medical opinion provided by the Veteran's private physician. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds that the May 2008 and July 2008 statements from the Veteran's private physician are insufficient to serve as the basis of a grant of entitlement to service connection. Dr. J.W. indicated the Veteran had severe DDD. However, there is no imaging report of record to corroborate that statement. Further, in his May 2008 statement, Dr. J.W. stated that the Veteran had many "hard" parachute landings while in active service, but that the Veteran could not recall a specific injury to his spine during that time. In his July 2008 statement, Dr. J.W. noted that the Veteran had a significant lumbar spine injury during his active service. Those statements are inconsistent with each other in addition to being inconsistent with the Veteran's own reports made at his various VA examinations. Additionally, there is no indication that Dr. J.W. was able to review the Veteran's claims file in preparation of his opinions. In contrast, the January 2013 and April 2013 VA opinions that the Veteran's mild DJD of the lumbar spine was likely related to his age as the degenerative changes would be expected to be more severe had they resulted from a traumatic injury more than 50 years ago are supported by documented imaging reports of record. Additionally, the VA examiner performed a thorough review of the Veteran's claims file and did not find any documentation of a traumatic injury to the spine while the Veteran was in active service. Therefore, the Board finds that the January 2013 and April 2013 opinions provided by the VA examiner are more probative than those provided by the Veteran's private physician, as Dr. J.W.'s opinions are not supported by documented medical evidence and because they are inconsistent with each other and the other evidence of record. Further, while the Veteran might sincerely believe that his low back disability is related to his active service parachute jumps and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current low back disability is related to parachute jumps performed more than 50 years ago falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, there is no documented evidence of record indicating that the Veteran was diagnosed with lumbar spine arthritis prior to the June 2009 VA Medical Center X-ray. That diagnosis was made more than 50 years following the Veteran's separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran was not treated for or diagnosed with a low back disability while in active service and his spine was found to be clinically normal at the time of his separation from active service. The Veteran was not diagnosed with lumbar spine arthritis within one year of his April 1952 separation from active service. The VA examiner has competently opined that the Veteran's mild DJD of his lumbar spine is related to his age rather than parachuting during active service. That is the most persuasive evidence of record. The opinions provided by the Veteran's private physician indicating that the Veteran's current low back disability is related to his active service are of less probative value. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a low back disability is not denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs