Citation Nr: 1318475	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-24 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February to November 1955.

This matter initially came before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for herniated nucleus pulposis as new and material evidence had not been submitted.

The Veteran testified before the undersigned at a March 2011 videoconference hearing at the RO.  A transcript of the hearing has been associated with his claims folder.

In November 2011, the Board granted the petition to reopen the claim of service connection for a low back disability and remanded the underlying claim for further development.

In September 2012, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.


FINDING OF FACT

The Veteran's current low back disability is the result of an in-service injury.




CONCLUSION OF LAW

A low back disability was, at least in part, incurred in service.  38 U.S.C.A. §§ 1111, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

As the Board is granting the claim of service connection for a low back disability, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

Establishing service connection generally requires (1) medical evidence of a 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 disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including arthritis, is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")).

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).  

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012).

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, a February 2009 VA pain outpatient treatment note and a December 2011 VA examination report include diagnoses of lumbar facet arthritis, lumbar radiculopathy, and herniated nucleus pulposis.  Thus, a current low back disability has been demonstrated.

The evidence reflects that the Veteran had some pre-existing back problems prior to service.  His February 1955 entrance examination reveals that he was diagnosed as having scoliosis at L2.  The entrance examination was otherwise normal with the exception of mild anxiety and dental problems.   

The evidence is conflicting as to whether there were any pre-existing back problems other than scoliosis and as to the etiology of the Veteran's current low back disability.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).

Service treatment records include an August 1955 X-ray report which reveals that there was some compression of the anterior portion of L2 and that the epiphysis had failed to unite completely.  In September 1955 the Veteran was treated for low back pain which had worsened during the previous 6 months.  He was noted to have a backache, a low back strain, and scoliosis.  X-rays revealed minimal sacralization at L5 and a questionable abnormality of the left nerve root canal of L5.  He was again treated for low back pain in October 1955 which had progressively worsened during the previous 6 months and nearly incapacitated him from performing heavy work.  However, there was no significant radiation of the pain, it was not exaggerated by an increase in cerebro-spinal pressure, and there were no other neurologic symptoms.  He was diagnosed as having chondritis of the lumbar region, was prescribed bed rest, and was transferred to the U.S. Naval Hospital in Jacksonville, Florida for treatment and disposition.

Treatment reports from the U.S. Naval Hospital in Jacksonville, Florida dated in October 1955 reflect that the Veteran had reportedly experienced back pain ever since a motorcycle accident which had allegedly occurred approximately 2 years prior to his October 1955 hospitalization.  The pain was transient following the accident and was not associated with any significant disability.  He injured his back while performing "heavy deck work" approximately 6 months prior to his October 1955 hospitalization, at which time he experienced pain which was localized over the lumbar region and radiated down both thighs to the knees posteriorly.

Examination revealed that there was limitation of spinal flexion, lateral bending, and hyperextension.  There was tenderness over the L4-L5 spinous processes and spasm was minimal.  A straight leg raising test was positive bilaterally at 70 degrees.  The Veteran was placed on best rest for approximately one week and thereafter resumed minimal activity.  There was considerable pain in the thoracolumbar region on best rest with minimal activity.  Wet heat and massage was instituted, but these measures did not provide any symptom relief.  

The Veteran was found to be unfit for Naval service and was discharged in view of his diagnosed chondritis of the lower thoracic and lumbar vertebrae.  This disability was found to have been neither incurred in nor aggravated by service.  However, no further explanation or reasoning accompanied this opinion.

The physician who conducted the December 2011 VA examination opined that it was possible, but not likely ("less likely than not") that the Veteran's current degenerative lumbar disease with stenosis was due to "an injury that showed no change in stable L2 compression that was noted upon service injury."  The examiner set forth a general description of the history of the Veteran's back problems, but did not provide any specific explanation or reasoning for his opinion.

With respect to Veteran's scoliosis, the December 2011 examiner opined that it clearly and unmistakably existed prior to service and that it was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  He reasoned that the Veteran's scoliosis at L2 was likely a congenital disease due to the fact that it was noted at the time of his entrance into service, at which time he was 18 years old.  If present at that age, scoliosis was congenital and not degenerative.  The scoliosis was not related to the herniated disc that he suffered in 1972.  His current stenosis and spondylosis was common in the aging spine and it was impossible to state that a vague injury in 1955 had altered the natural progression of this disability.

In November 2012, the Board sought to obtain an expert medical opinion through the Veterans Health Administration (VHA opinion) in accordance with the provisions of 38 C.F.R. § 20.901(a) (2012).  In December 2012, a VA orthopedic spine surgeon reviewed the Veteran's claims file and opined that he unequivocally had post-traumatic scoliosis as a direct consequence of an L2 fracture that was present before he entered service.  This opinion was based on the fact that compression fractures most commonly occur due to osteoporosis (softening of the bone that occurs with age), cancer (where hard bone is replaced by tumor, which is soft), or a traumatic injury.  At the time of his entrance examination, the Veteran would have been too young to have osteoporosis.  Given his survival to the present day, he also did not have a compression fracture from an undiagnosed cancer.  Thus, the only explanation for his compression fracture was a prior traumatic event.  A single motorcycle accident is of sufficient force to cause a compression fracture, and the evidence reflected that the Veteran was involved in a motorcycle accident prior to service.  While it was possible, but very unlikely, that he had a combination of both an idiopathic scoliosis and a post-traumatic scoliosis, idiopathic scoliosis typically involves more than one vertebrae.  Since the evidence only reflected scoliosis at one level (i.e. the level of the fracture), it was a statistical certainty that the L2 fracture was the sole cause of the L2 scoliosis.  It was a clinical certainty that the L2 fracture present at the time of the Veteran's entrance examination was caused by his pre-service motorcycle accident, in the absence of any other traumatic event of similar magnitude.

The physician also opined that there was a good statistical chance that the Veteran entered service with pre-existing degenerative disc disease (likely around L1-L2 or L2-L3).  This opinion was based upon a review of medical literature pertaining to the normal progression of post-traumatic arthritis.

Furthermore, the physician opined that it was possible and likely that some of the Veteran's current symptoms may have been related to his in-service back injury, which likely included a small disc herniation that subsequently healed and was treated appropriately with a short period of bed rest.  However, the majority of his symptoms could not be solely attributed to his in-service injury.  The physician reasoned that the symptoms reported during the December 2011 VA examination were consistent with an aging spine, were independent of any prior injury or prior surgery, and were symptoms which could be commonly seen.  A review of medical literature revealed that patients with lumbar stenosis in a medical trial had an average age (with +/- one standard deviation) of 55 to 76 years in the surgery group and 51.4 to 76.4 years in the non-surgery group.  Since the Veteran did not develop symptoms of lumbar stenosis before this age group, there was no evidence to suggest that he experienced "premature" degeneration of the spine.  However, the presence of prior surgery could be associated with the facet hypertrophy and accelerated degeneration.  This was particularly true with larger open surgeries, such as the one that the Veteran had undergone in 1972, as opposed to the more minimally invasive techniques available at the present time.

The physician further explained that the surgery which was performed in 1972 was for a herniated disc with loss of rectal sphincter tone.  At that time, the symptoms arose when the Veteran stepped out of a boat.  Since bending, lifting, and twisting are the common motions that lead to a disc herniation, this type of egress from a boat (even in a healthy individual with no prior injury) could entirely explain the onset of his symptoms.  The surgery performed at that time was appropriate.  Though the 1972 surgery may have contributed to increased symptoms at the present time by virtue of increased scarring and degeneration, the Veteran did not experience any premature degeneration.  A review of medical literature revealed that patients with disc herniations in a medical trial had an average age (with +/- one standard deviation) of 29.9 to 53.5 years in the operative group and 31.7 to 54.3 years in the non-operative group.  Thus, the Veteran did not experience a disc herniation of sufficient magnitude to require surgery at an earlier age than might be expected from the general population.

The findings documented in the treatment reports from the U.S. Naval Hospital in Jacksonville, Florida dated in October 1955 (i.e. pain radiating down both thighs and to the knees posteriorly and positive straight leg raise) were consistent with a herniated nucleus pulposus which was not commented on in the reports.  It was likely ("at least as likely as not") that a herniated disc developed or was exacerbated (but was not diagnosed) at that time due to the limitations of the technology which was present.  The treatment strategy of a short period of rest was the appropriate treatment and no harm was done.  However, the residual pain that was present in the thoracolumbar region after the period of rest was consistent with chondritis.  Thus, the symptoms that the Veteran experienced in 1955 were due to a combination of both chondritis and exacerbation of a pre-existing or a new disc herniation.  Specifically, the leg pain was due to a disc herniation and the back pain and thoracolumbar pain at rest was due to chondritis.  The pain from a disc herniation over the L4-5 spinous process may have been related to a disc herniation.  The Veteran's fall in service would have been sufficient to generate a disc herniation.

Moreover, the radiographic report dated in 1955 indicated that there was minimal sacralization of L5 with questionable abnormality of the left nerve root canal of L5.  These were congenital findings which would have likely been present since the Veteran's birth.  Sacralization means that portions of the bone of one vertebrae are connected to the bones of another.  If such sacralization was minimal, then there may have been abnormal forces that placed the Veteran at a greater risk of injury.  Additionally, the "questionable abnormality" likely referred to a misshapen foramen through which the nerve root passes (usually resulting in a smaller space).  Thus, it was likely that he had some congenital factors (such as a smaller nerve root canal) which led to the development of pain radiating down both thighs and to the knees posteriorly from what may have been an otherwise inconsequential disc herniation.  The amount of symptoms from the disc herniation was small in that the pain resolved after an initial period of rest.  The chondritis, which was present at the same time, became the larger and dominant symptom.  Given that the Veteran was able to function from 1955 to 1972, the disc herniation and nerve root injury appeared to have largely settled down.  This was consistent with the medical literature which showed that patients with disc herniations almost uniformly felt better 2 years later.

The physician concluded that the Veteran's clinical presentation of lumbar stenosis, spondylosis, degenerative lumbar disease, and disc herniations were fully consistent with normal aging.  His clinical presentation of a disc herniation in 1972 which required surgery was also fully consistent with bad luck combined with a seemingly routine egress from a boat.  In neither of these two situations did he experience a spine event that was outside the range of expected ages for this occur.  In 1955, his symptoms of back pain which required a discharge from service were due to chondritis.  However, the medical reports suggest that he also had symptoms consistent with a disc herniation at that time.  Although this was not documented, the treatment plan was appropriate and no harm was experienced from the lack of a diagnosis.  The medical report from 1955 identified a "questionable abnormality of the left nerve root canal of L5" which most likely indicated that there was an underlying congenital finding that exacerbated the symptoms of a disc herniation.  The time period from 1955 to 1972 suggested that the disc herniation was resolved (which was expected).  The Veteran's injury on a boat would not have altered the course of his abnormality of the nerve root canal or scoliosis.  Thus, there was no worsening of his underlying congenital nerve root canal issue or pre-service scoliosis.

With respect to whether the Veteran had any pre-existing back problems other than scoliosis prior to service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

Despite the reports in the Veteran's service treatment records that he had pre-existing back problems other than scoliosis which were allegedly due to a motorcycle accident prior to service, there is no evidence of any other pre-existing back problems prior to service and the February 1955 entrance examination reveals that there were no back abnormalities at the time the Veteran entered service other than scoliosis.  He has contended on several occasions that he never injured his back prior to service due to a motorcycle accident, despite reports to the contrary in his service treatment records.  Nevertheless, to the extent that he may have reported a back injury prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  Miller v. West, 11 Vet. App. 345 (1998).

Furthermore, any conclusions by the VA physician who provided the December 2012 opinion that the Veteran had pre-existing back problems other than scoliosis are of little, if any, probative value because they are based on an inaccurate history.  Specifically, such conclusions were largely based on a finding that the Veteran had experienced an L2 compression fracture prior to service.  However, as explained above, the only back abnormality noted during the February 1955 entrance examination was scoliosis at L2 and there is no evidence of any other back problems (including any compression fractures) prior to service.  Thus, any opinions by the December 2012 physician as to existence of any pre-existing back problems other than scoliosis are of little probative value.  See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

In sum, the Board concludes that the evidence is not clear and unmistakable that any back disability other than scoliosis existed prior to service and the Veteran was therefore presumed sound other than for that disability.  38 U.S.C.A. § 1111.

The December 2011 opinion as to whether the Veteran's current low back disability was related to his back problems in service is of minimal probative value because it is not accompanied by any specific explanation or reasoning.   See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

However, the December 2012 opinion as to the relationship between the current back disability and the in-service back problems is accompanied by a detailed rationale that was based upon a review of the Veteran's medical records and reported history and is not inconsistent with the evidence of record.  Thus, this opinion is entitled to substantial probative weight.  See Id.

In sum, the December 2012 opinion reflects that it is likely that the Veteran's current low back disability is, at least in part, related to his back problems in service.  In light of this opinion and resolving reasonable doubt in his favor, the Board finds that the criteria for service connection for the currently diagnosed low back disability have been met.  38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303.






ORDER

Entitlement to service connection for a low back disability is granted.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs