Citation Nr: 1318048 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 07-02 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 (claimed as a low back disability). REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active service from September 1982 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's petition to reopen the claim for service connection for a low back disorder. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2007. A copy of the transcript of this hearing has been associated with the claims file. In July 2010, the Board determined that new and material evidence had been submitted sufficient to reopen the previously denied claim for service connection for a low back disability. However, since the evidence of record was insufficient to adjudicate the Veteran's claim, it was remanded so that he may be provided complete notice and afforded an adequate VA examination. In a July 2010 letter from the VA Appeals Management Center (AMC), the Veteran was provided complete notice pertaining to his claim. Thereafter, the Veteran was provided a VA examination. As will be discussed below, the July 2010 VA examination is adequate for the purpose of adjudicating the Veteran's claim. The Veteran's claim was denied in a July 2012 Supplemental Statement of the Case (SSOC), and was returned to the Board. Accordingly, the Board finds that there has been substantial compliance with the directives of the July 2010 Remand, such that an additional remand to comply with such directives is not required. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Veteran's private attorney indicated in August 2012 that the Veteran desired another hearing before a Veterans Law Judge who would decide his claim, and he was thereafter scheduled for a hearing at the RO in December 2012. However, the Veteran had already had a hearing on the issue of entitlement to service connection for a low back disability and no good cause has been shown for the need for a second hearing on that issue. Accordingly, the Veteran was notified in November 2012 that the December 2012 had been cancelled. 38 C.F.R. §§ 20.700(a), 20.704 (2012). In November 2012, the Veteran's private attorney submitted additional evidence in support of the Veteran's claim. This evidence was accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). FINDINGS OF FACT 1. On January 14, 2013, the Board issued a decision as to issue of entitlement to service connection for a low back disability. 2. On November 27, 2012, additional evidence was received by the RO; however, it was not sent to the Board and associated with the claims file until after the Board's January 14, 2013, decision was issued. 3. Current diagnoses of degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 are of record. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record relates degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 to his military service. CONCLUSIONS OF LAW 1. The January 14, 2013, Board decision addressing the issue of entitlement to service connection for a low back disability is vacated. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2012). 2. The criteria for service connection for degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 have been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VACATED DECISION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2012). On January 14, 2013, the Board issued a decision as to issue of entitlement to service connection for a low back disability. On November 27, 2012, unbeknownst to the Board and prior to the issuance of the January 14, 2013, decision, the RO received additional evidence of a medical opinion by Dr. Dauphin dated October 18, 2012. Unfortunately, the evidence was not brought to the Board's attention or associated with the claims file until after the issuance of the January 14, 2013, Board decision. Based on the receipt of additional evidence, the Board finds that the vacatur of the January 14, 2013, Board decision is warranted. ADJUDICATED ISSUE In this decision, the Board grants entitlement to service connection for degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1. This action constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Analysis In the present case, the evidence of record reflects a current diagnosis of degenerative disc disease and desiccation with an annular disc bulge at L5-S1. As such, element (1), evidence of a current diagnosed disability, has been demonstrated. The Veteran's service treatment records show that he reported experiencing low back pain and was treated with heat and massage in August 1984. A paravertebral muscle strain was diagnosed at that time. Accordingly, element (2) has been demonstrated. Concerning element (3), evidence that the Veteran's degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 is the result of his service, there are several nexus opinions of record, and the Board will discuss them in turn. Initially, an April 2004 VA treatment record reflects that the Veteran presented for treatment of chronic low back pain resulting from an in-service injury. However, it appears that this record is merely a reflection of the Veteran's own contentions rather than an opinion from a medical professional. The Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Accordingly, this record is afforded little, if any, probative weight. The September 2005 VA examination report reflects that, after a review of the record and an interview with and physical examination of the Veteran, the examiner opined that the Veteran's low back disorder was likely due to normal aging. In providing this opinion, the examiner reasoned" [t]here were no other objective findings of any other lumbar spine disability." However, as noted by the Board in the July 2010 Remand, the examiner's reasoning is inaccurate, as a low back sprain and scoliosis were found at the November 1984 VA examination. Accordingly, the September 2005 VA examination is inadequate, and thus, is afforded little probative weight. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008);Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The July 2010 VA examination report reflects that, after a review of the record and an interview with and examination of the Veteran, the examiner opined that the Veteran's current low back disability was not related to his service, to include his in-service low back strain. In support of this opinion, the examiner noted the lack of complaints of an treatment for low back symptomatology between November 1984 and his first instance of VA treatment in April 2004, despite the Veteran's assertions of frequent and persistent low back pain since service. However, the Board observes that rationale provided by the July 2010 VA examiner is inconsistent to the Court's holding in Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) that lay evidence is competent to support presence of disability even where not corroborated by contemporaneous medical evidence, and thus, the probative weight of this opinion is lessened. As noted in the Introduction, the Veteran's private attorney submitted a medical opinion in November 2012 which is favorable to the Veteran's claim. Specifically, after a review of the Veteran's complete VA claims file as well as a physical examination of the Veteran, Dr. Dauphin, a private clinician, opined that the Veteran's diagnosed low back disabilities are at least as likely as not related to his in-service injury to his thoracolumbar spine. In stating this opinion, Dr. Dauphin cited specific treatment records from the Veteran's service and since, and additionally discussed how the Veteran's currently diagnosed low back disabilities were related to his initial, in-service low back injury. Bloom v. West, 13 Vet. App. 185, 187 (1999). 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. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated in pertinent part: "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...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has reviewed the conflicting evidence of record and notes certain strengths and weaknesses with each of the opinions. Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). In sum, the nexus evidence of record consists of the probative statement from Dr. Dauphin in favor of the Veteran's claim and the inadequate opinions dated in April 2004, September 2005 and July 2010. Accordingly, the nexus evidence of record is at least in equipoise. In such cases, the Board resolves all reasonable doubt in the Veteran's favor, and element (3) has been demonstrated. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran's claim of entitlement to service connection for degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 is granted. ORDER The Board's January 14, 2013 decision is vacated. Entitlement to service connection for degenerative disc disease and desiccation of the lumbar spine with an annular disc bulge at L5-S1 is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs