Citation Nr: 1318315 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-21 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder, claimed as a low back injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1967 to October 1968, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in pertinent part, denied the Veteran's claim for service connection for a back condition. In September 2008, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a hearing sitting at the RO. A hearing transcript has been associated with the claims file. The Board remanded the instant matter in July 2009 and September 2012. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders with regard to the claim for service connection for a lumbar spine disorder and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In January 2012, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) and such an opinion was associated with the claims file in March 2012. The Veteran and his representative were provided with a copy of this opinion in April 2012 and were given 60 days to submit additional evidence and argument. In February 2013, the Veteran's representative indicated that they did not have any additional evidence to submit and requested that the Veteran's case be immediately forwarded to the Board. In addition, the Veteran's representative waived RO consideration of any additional evidence received since the issuance of the February 2013 supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304 (2012). A review of the Virtual VA claims processing system reveals VA treatment records dated through February 2012. FINDING OF FACT A lumbar spine disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW A lumbar spine disorder was not incurred in or aggravated by the Veteran's active duty service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Relevant to the claim adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2003 letter, sent prior to the initial May 2004 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claim for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information. A March 2006 letter provided the Veteran proper notice under Dingess. The timing deficiency with regard to this March 2006 letter was cured by the readjudication of the claim in a May 2008 SSOC. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the Veteran has not alleged prejudice with regard to any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Relevant to the duty to assist, the Veteran's service treatment records, service personnel records, VA outpatient treatment records, various private treatment records, and the VA examination reports have been obtained and considered. An April 2008 RO Memorandum made a formal finding regarding the unavailability of VA treatment records from the North Texas VA Medical Center (VAMC) for the period between August 1967 to July 1986. Additionally, a VHA opinion was obtained in order to adjudicate the Veteran's claim for service connection. In this regard, the Board notes that the March 2012 VHA examiner offered an etiological opinion as to the claimed disorder and based his conclusions on a review of the record. Moreover, this opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinions proffered by the VHA examiner are sufficient to assist VA in deciding the instant claim. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the July 2009 and September 2012 remand directives in obtaining the Veteran's updated treatment records from the Dallas VAMC, affording the Veteran a VA examination and allowing the Veteran's representative an opportunity to provide an informal hearing presentation, as applicable to the instant claim, and as such that no further action is necessary in this regard. See D'Aries, supra. The Board notes that the Veteran reported undergoing treatment with a private provider immediately after service and that he had received private orthopedic treatment during the course of appeal. However, the Veteran has not identified the private provider from which he received post-service treatment nor has he completed an appropriate authorization form to allow VA to obtain any private records. The Veteran was asked in an October 2009 to identify all non-VA health care providers and complete an appropriate authorization form for each such provider. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. Additionally, in September 2008, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2008 hearing, the undersigned Acting Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the etiology of the Veteran's back disorder, to include the Veteran's allegations that it is related to his military service, as well any post-service treatment he received. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Moreover, while the hearing discussion revealed additional records, the Board subsequently remanded the case in order to obtain them. As such, the Board finds that, consistent with Bryant, the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, to include arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for diabetes mellitus), even though there is no evidence of such disease during the period of 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. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A May 1967 service entrance examination was negative for any relevant abnormalities and the Veteran denied recurrent back pain in an accompanying Report of Medical History (RMH). In December 1967, a lumbosacral strain that had existed for more than one year was noted. An October 1968 service discharge examination found the Veteran's spine to be normal and was otherwise negative for any relevant abnormalities. The Veteran denied recurrent back pain in an accompanying RMH. A January 1987 VA treatment note reflected the Veteran's reports of left thoracic muscle spasms and contained an assessment of a musclo-skeletal sprain. A January 1991 VA treatment note reflected the Veteran's complaints of low back pain for the past seven days while trauma or injury were denied. Diagnoses of spondylosis of L5 and a lumbosacral sprain were made. An accompanying lumbar X-ray revealed bilateral L5 spondylolysis without evidence of spondylolisthesis and hypoplasia of L5 vertebral body posteriorly. A January 2002 private treatment note contained an assessment of back pain. An April 2002 lumbar magnetic resonance imaging (MRI) scan indicated that the Veteran had sustained an on-the-job injury four weeks ago while lifting and falling. A disc protrusion at L5-S1 and L4-L5, degenerative changes at L4-L5 and a disc bulge at L3-L4 were found. An August 2002 private psychiatric evaluation reflected the Veteran's reports of injuring his low back after falling backwards on a pallet onto cement while at work in March 2002. A November 2003 VA treatment note contained an assessment of backache not otherwise specified (NOS.) A March 2005 VA spine examination reflected the Veteran's reports of sustaining an on-the-job injury to his back in March 2002. Following a physical examination and a review of the Veteran's claims file, the examiner opined that it was unlikely that the Veteran's significant bulges and annular tears, as well as facet changes, would have been present during the entire time period from service discharge until the on-the-job injury in March 2002, as no symptoms, examination or treatment were reported. It was examiner's opinion that the Veteran's deep spinal pathology was more likely than not related to the on-the-job injury in March 2002 and not at all likely directly related to the in-service back problem documented in December 1967. A June 2005 private opinion from O. A., M.D., indicated that the Veteran had been a patient for several years and that he had reported injuring his back during service. The provider opined that the Veteran's current "back pain may date back to the previous back injury." An August 2008 private opinion from J. B., M.D., noted that the Veteran's documented in-service lumbosacral strain reflected an injury that most likely occurred during the Veteran's active duty service. The provider opined that it was very reasonable that this type of injury was the most likely cause of the Veteran's current issues with lumbar radiculopathy, lumbar degenerative disc disease and low back pain. During a September 2008 hearing, the Veteran testified that he had sought treatment for his back condition from a private physician and that he did not believe that this doctor was still alive. He did not recall seeing anyone for his back disorder after this 1967 visit. A November 2009 VA examiner opined that it was less likely than not that the Veteran's current lumbosacral spine problems were related to service or within one year of service discharge. A January 2012 VA treatment note contained an assessment of lumbar spine degenerative joint disease. A March 2012 VHA examiner, following a review of the Veteran's records, indicated that while there was a single instance of a lumbo-sacral strain in December 1967, there was not another documented visit with any health care provider for low back pain until 1991. The examiner noted the January 1987 clinical visit revolved around left-sided mid-thoracic pain, which was quite separate from a low back disability. The examiner opined that it stood to reason that the Veteran would have sought treatment following service, either at a VAMC or in the private sector, prior to 1991 for a permanent/chronic back injury. In addition, the examiner noted that the treatment note from 1991 indicated that the Veteran had experienced low back pain for seven days, suggesting a lack of chronicity, and a single X-ray from this time found spondylolysis and L5 hypoplasia, which suggested a congenital spine problem, though X-ray was not the ideal imaging modality to diagnose such findings. The examiner father noted that it would be contradictory to file a Worker's Compensation claim for back pain, have it approved and subsequently receive compensation for it, and then file a claim with VA years later. With regards to the 2008 private opinion, the March 2012 VHA examiner indicated that such a finding that the Veteran's back disability had not affected his ability to work appeared to be in direct contradiction to 2002 Worker's Compensation claim. The examiner opined that it was highly improbable that the Veteran's lumbar symptoms were related to service as degenerative disc disease is simply a radiological finding and does not correlate well with back pain. Moreover, the examiner noted that low back pain was only mentioned once by the Veteran in 1967 and that there was no intervening clinical evidence to support a claim of low back pain until 1991 and that even then it was a subsequent 11 year lapse until the Veteran's work injury in 2002. It was the neurosurgical examiner's opinion that the Veteran's current low back disability most likely (greater than a 50 percent probability) stemmed from his work injury in 2002 and that it was possible that he had a congenital spondylolysis of L5 which may have been aggravated by his work injury in 2002. However, the Veteran's low back disability did not appear to have been caused or aggravated by his service as evidenced by the complete lack of any low back symptoms for 24 years and the fact that his complaint of mid-thoracic pain in 1987 was not related to an L5 sponylolysis or lumbar radiculopathy. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in October 1968. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted when all the evidence establishes a nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The medical evidence of record shows that the Veteran has been diagnosed with a variety of lumbar spine disabilities, including lumbar degenerative disc disease. However, the probative evidence of record demonstrates that the Veteran's lumbar spine disorder is not related to his service. In this regard, the Board places great probative weight on the March 2012 VHA examiner's opinion that the Veteran's lumbar spine disorder was more likely related to his post-service work injury and did not appear to have been caused or aggravated by service. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Accordingly, as the probative evidence of records demonstrates that the current lumbar spine disorder is not related to service, service connection is not warranted. The Veteran has submitted several opinions in support of his claim. A June 2005 opinion from Dr. O. A. indicated that the Veteran's current back pain "may" date back to his previous back injury; this opinion is speculative and was not stated to the degree of certainty to required to support a claim for service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). An August 2008 opinion from Dr. J. B. indicated that it was "very reasonable" that the Veteran's in-service lumbosacral strain caused his current lumbar spine disorder. However, this opinion did not contain a rationale and did not address the Veteran's documented post-service work injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Similarly, the November 2009 VA addendum opinion did not contain a rationale. Finally, the March 2005 VA examiner based his negative etiological opinion, at least in part, on the absence of documented lumbar symptoms or treatment prior to the Veteran's March 2002 work injury and did not address the January 1991 VA treatment note. However, an opinion based on an in accurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). Consequently, the Board is affording little, if any, probative weight to these opinions. The Board notes that the Veteran has contended on his own behalf that his current lumbar spine disorder is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's lumbar spine disorder and any instance of his service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe the treatment for back symptoms during service as well as any current symptoms, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the diagnosis of lumbar degenerative disc disease requires the administration and interpretation of X-rays. There is no indication that the Veteran possesses the requisite medical knowledge to take X-rays or interpret their results. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his in-service back complaints and his current lumbar spine disorder. In contrast, the March 2012 VHA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's in-service treatment for a lumbosacral strain as well as the current nature of his lumbar spine disorder. Therefore, the Board accords greater probative weight to the VHA examiner's opinion. In addition, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran testified during his September 2008 hearing that he had sought treatment for his lumbar spine disorder from a private provider "maybe six months" after service discharge. He further alleged that he has experienced symptoms since such time. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds such statements to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords no probative weight to such contentions. In this regard, the Veteran's lumbar spine was found to be normal at his October 1968 service discharge examination and the Veteran denied recurrent back pain in an accompanying RMH. In January 1991, the Veteran reported low back pain for the past seven days and denied trauma or an injury. The Board notes that the Veteran's January 1991 statements were made many years prior to the filing of the instant claim for service connection, and are highly probative as they were made for the purposes of treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Therefore, in light of these inconsistent statements, the Board finds the Veteran's statements regarding a continuity of symptomology and his treatment within one year of service discharge to not be credible. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER Service connection for a lumbar spine disorder, claimed as a low back injury, is denied. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs