Citation Nr: 1318832 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-31 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of back injuries. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2008, the Veteran testified before a Decision Review Officer (DRO) at a hearing at the RO. In November 2010, the Veteran testified before the undersigned at a hearing at the RO. Transcripts of both hearings are of record. In March 2011 and December 2012, the Board remanded the claim on appeal for further development. The claim is again before the Board for appellate review. FINDINGS OF FACT 1. The Veteran did not develop arthritis to a compensable degree within one year of service. 2. The Veteran did not experience a continuity of low back symptoms since service. 3. The most probative evidence establishes that Veteran's current low back and coccyx disorders are unrelated to in-service back injuries. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of back injuries have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant appeal. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all five elements of a claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO sent the Veteran a letter in March 2007 that complied with § 5103 notice requirements outlined above. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, service treatment records and VA outpatient treatment records have been obtained and associated with the claims file, to the extent possible. The Board recognizes that the RO/AMC has been unable to obtain records from the VA Medical Center (VAMC) in Muskogee, Oklahoma, for the time period extending from 1976 to 1984 despite the Veteran's statements that she was treated at this facility during this time frame for her low back. After six requests for records, the Muskogee VAMC finally responded that "all the paper records that they have at their facility was mailed . . . and there [were] no records for the period of August 1976 to December 1984." Further, the Veteran was advised of the unavailability of these records in September 2012 in accordance with 38 C.F.R. § 3.159(e). See October 2012 VA Memorandum of Formal Finding of Unavailability and September 2012 Report of Contact. Because it has been determined that no records exist, no further duty to assist is necessary with regard to these records. 38 C.F.R. § 3.159(c)(2) (2012) (stating that VA will end efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Additionally, the Veteran also submitted private treatment records from several health care providers and statements on her behalf. She provided oral testimony during the DRO hearing and, more recently, at the November 2010 Board hearing. In this regard, the U.S. Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). During the December 2012 hearing, the undersigned adequately identified the issue on appeal, and information was solicited regarding the onset, duration, and nature of the Veteran's low back complaints. Additionally, information was solicited at the hearing about any additional evidence that might be available that had not been submitted. In fact, as a result of information obtained at the hearing, the Board remanded this appeal for additional development. Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The Veteran in this case was also provided with multiple VA examinations with regard to the spine. Upon review of the most recent VA examination of January 2013, the examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination, and contemplated X-rays of the lumbosacral spine and coccyx. Additionally, the examiner provided an opinion as to the etiology of the Veteran's low back complaints and explained, in detail, the rationale for this opinion. Thus, the Board finds that this examination is adequate and that a remand for another VA examination of the spine is unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate) The Board is also satisfied that there has been substantial compliance with prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order.). Pursuant to the March 2011 remand, records were requested from the Muskogee VAMC dating back to 1976 (as explained above, however, these records are unavailable and the Veteran was advised of such in September 2012). Additionally, although the appeal needed to be remanded again in December 2012 for an adequate VA examination, a complaint examination and opinion was obtained in January 2013. Finally to the extent that the December 2012 remand directed that the Veteran be contacted and asked to provide records from Redbird Smith Health Center and Gregory Medical Clinic or provide authorization for VA to obtain such records, she was sent an appropriate letter in January 2013. In response, the Veteran submitted additional private medical evidence but did not provide her consent to directly release all treatment records to VA from these facilities. It is well established that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, and there is no Stegall violation in this case. Of significance, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this issue that has not been obtained. Accordingly, the Board finds that no useful purpose would be served in remanding the matter for yet more development and that such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (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, 1167 (Fed. Cir. 2004). Under 38 U.S.C.A. § 1154(b), where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation." In this case, however, the Board finds that the Veteran did not engage in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable to the current appeal. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The U.S. Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because the Veteran in this case has been diagnosed with degenerative changes of the spine and 38 C.F.R. § 3.309(a) specifically contemplates arthritis, the Board will therefore also consider whether service connection is warranted based upon continuity of symptomatology. Finally, presumptive service connection for a chronic disease listed in 38 C.F.R. § 3.309(a), including arthritis, may also be established when the disease has become manifest to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3) (2012). The determination as to whether the elements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran alleges that her current low back complaints are the result of back injuries in service. After a careful review of the claims file, the Board notes that the evidence establishes the existence of a current disability, meeting the first requirement for the establishment of service connection. See January 2013 VA examination (noting degenerative changes of the coccyx and degenerative joint disease of the lumbar spine). Moreover, the evidence establishes that the Veteran sustained multiple injuries to her low back in service, which satisfies the second element of service connection. In this regard, she has provided competent and credible testimony regarding several assaults in service. The Veteran has provided consistent statements describing a physically assault at a roller rink, and an undated service treatment record confirms complaints of low back pain following an injury at a roller rink when the Veteran was hit in the low back with someone's elbow. The assessment rendered was of muscular back pain. Additionally, the Veteran described being kicked in the low back/coccyx/pelvic area by a man while awaiting formation. The Veteran's sister also provided a statement in June 1998 corroborating this incident. Significantly however, although the Veteran is competent to state that she was injured on these occasions, she is not competent to state that such injuries resulted in a chronic disability of a fractured coccyx or other low back disability in service. Moreover, her sister is only competent to testify as to the information she heard from the Veteran or actions she witnessed and is likewise not competent to attest to the Veteran's incurrence of a chronic low back disability in service. Determining the existence of a fractured coccyx does not involve contemplation of a simple disorder where the question of diagnosis or etiology does not require specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Rather, the Board finds that a fracture to tailbone or lower spine is more complex in nature than a fracture to a leg or other extremity and is not capable of lay observation or diagnosis. See, e.g., Dorland's Illustrated Medical Dictionary, 31st Ed. (2007) ("tailbone" or "coccyx" or "os coccygis" describe the coccygeal bone: the small bone caudad to the sacrum in humans, formed by union of four (sometimes five or three) rudimentary vertebrae, and forming the caudal extremity of the vertebral column). Even assuming arguendo that the Veteran was competent to attest to having a broken coccyx in service, the Board finds that her statements lack credibility. In this regard, the Veteran's separation examination revealed "normal" findings of the spine, and on her Report of Medical History in June 1976, she expressly denied ever having any broken bones. It follows that her sister's statements, which are based on the Veteran's reported history, are likewise not credible. Therefore, the Board finds that the competent and credible evidence of record does not establish the incurrence of a chronic disability of the coccyx or low back during service as a result of the in-service back injuries. In addition, the evidence does not indicate that the Veteran's degenerative changes of the lumbosacral spine and coccyx manifested to a compensable degree within one year following separation from service. Pursuant to Diagnostic Code 5003, a 10 percent disability rating for arthritis is warranted upon X-ray evidence of noncompensable limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Here, possible lumbar arthritis was first suspected in a September 1997 private treatment report, more than twenty years after service separation. Additionally, VA treatment records reflect a history of arthralgia (see March 2001 VA treatment report) and low back pain secondary to trochanteric bursitis and gluteus medius tendonitis (see June 2005 VA treatment report), but X-ray findings of arthritis were shown in August 2008. Therefore, the Board finds that the Veteran's degenerative changes of the coccyx and degenerative joint disease of the lumbar spine, which are considered forms of arthritis, are not subject to presumptive service connection notwithstanding the application of 38 C.F.R. §§ 3.307 and 3.309. The Board also acknowledges that the evidence includes the Veteran's statements asserting continuity of symptoms of low back pain following discharge from active duty service. However, the Board finds that the Veteran's reported history of a painful low back since active service, while competent, is nonetheless not credible. Significantly, the Veteran's reported history of continued symptoms since active service is inconsistent with the other evidence of record. Indeed, she expressly denied any history of recurrent back pain in her Report of Medical History in June 1976. Furthermore, although the Veteran reported a long period of gradually developing back pain in a September 1997 private treatment record and there are occasional complaints of back pain in VA treatment records generally beginning in 2005, the records obtained from the Muskogee VAMC from 1985 to 2000 do not contain any notations of whether the Veteran experienced back pain, and the Veteran expressly denied complaints of pain in March 2003, June 2003, December 2003, and January 2004 VA treatment records. Of particular significance, in a February 2005 VA treatment report, the Veteran described chronic pain with an onset/duration of five months and, in a March 2005 private treatment report, the Veteran stated that she complained of lower back pain "since Sept. or Oct. of last year," noting her history of standing for eight hours on a concrete floor as part of her duties as a cashier. These statements are contrary to her assertions of low back pain since service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Therefore, continuity of symptomatology has not here been established by credible evidence. Nonetheless, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, however, the Board finds that the most probative evidence does not attribute the Veteran's current disabilities to service, despite her contentions to the contrary. To that end, the Board acknowledges that there are conflicting medical opinions as to the likely etiology of the Veteran's low back complaints. 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. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The U.S. Court of Appeals for Veterans Claims has set forth criteria that are important indicators of the probity of medical opinions: (1) whether the medical expert is informed of sufficient facts upon which to base an opinion relevant to the problem at hand, (2) whether there is a factually accurate, fully articulated, sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). "That the medical expert is suitably qualified and sufficiently informed are threshold considerations; most of the probative value of a medical opinion comes from its reasoning." Id. at 304. After carefully reviewing the evidence, the Board places highest probative value on the January 2013 VA examination. As directed by remand, and in order to account for a March 2005 private X-ray that revealed a coccyx dislocation, the VA examiner was to specifically accept as true that the Veteran was injured in service and to expressly address any coccyx disability. The VA examiner reviewed X-rays of the both the lumbosacral spine and the coccyx and determined that the X-ray findings "are not compatible with the muscle injury by the hit with an elbow [referring to the roller rink assault] or the claimed kick in the tailbone incident." The Board interprets the examiner's very detailed and lengthy opinions as essentially concluding that, from a medical standpoint, the current disabilities are not consistent with residuals of the injuries described by the Veteran. In pertinent part, the examiner explained: The findings of arthritis of the lumbar spine and through the coccygeal region on today's X-rays are noted to be diffuse and throughout the lumbar, sacral, and coccygeal areas indicating a diffuse degenerative process associated with aging rather [than] all focal areas of post traumatic arthritis associated with the stated traumatic assaults in service. The degenerative arthritis and degenerative disc changes noted on X-rays . . . would less than likely have resulted from either of the localized injuries described by the Veteran. The diffuse degenerative arthritis of the lumbar spine and coccyx is more likely than not related to an against process and pos-service activities which have included occupations that at least is likely as not would result in lower back degenerative arthritis. . . . A traumatic event would have been evident per a discussion with the radiologist, to have been evident by more severe or focal arthritis from trauma on x[r]ays. This is simply not the case in this Veteran's X-rays. There are diffuse degenerative changes throughout the spine into the coccyx, which indicate an aging process, along with the osteopenia. . . . There is no evidence objectively or within the prepond[e]rance of the evidence to support the claimed back and coccyx injuries to have an etiology with military serve. The degenerative disc disease is at least as likely as not a condition unrelated to any trauma and an incidental finding of normal aging and performance of occupation as a correctional officer for many years. Additionally, the examiner cites various medical references supporting this conclusion. The U.S. Court of Appeals for Veteran's Claims has noted that there is a "delicate balance between the Board's primacy as a fact finder and its obligation to seek expert assistance in resolving complex medical issues when appropriate." Kahana v. Shinseki, 24 Vet. App. 428, 441 (2011) ("Although the basic requirement to obtain a detailed medical opinion based upon an accurate factual premise is straightforward in principle, this case demonstrates the types of chicken-or-egg problems that frequently arise in a system where adjudicators and experts do not converse directly."). However, in this case, as the Board explains above, the Veteran is competent and credible to describe the injuries she sustained but not whether such injuries resulted in the incurrence of a chronic disability. The VA examiner adequately contemplates her reports of injuries and gives an adequate rationale for the medical findings rendered. Hence, the Board finds the above opinion to carry much weight because the examiner reviewed the claims file, accounted for the in-service injuries, and thoroughly explained the rationale behind the conclusion for why it is believed that the current disabilities are unrelated to the injuries described by the Veteran. On the other hand, the Board finds the the private opinions submitted by the Veteran in support of her claim to be less probative. In a November 2012 private treatment report, Dr. M.G. stated, "I feel that . . . her back issues . . . have roots and consequence from the injuries sustained . . . in the 1970's while working in the military." Dr. M.G. explained that she did have her coccyx fractured but did not have copies of those reports. The Board gives the November 2012 opinion very little weight because it is phrased in speculative term; here, it is "feel." See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot support a claim). In April 2013, Dr. M.G. submitted a letter stating that the Veteran has several back problems "due to the physical trauma that she endured while in the service. . . . She has had no other trauma . . . that could account for the problem." Based on these reports, the physician did not have access to X-rays that could confirm whether there was indeed a coccyx fracture or whether any current findings are consistent with the localized trauma described by the Veteran. Without such a review, the private physician's findings lack contemplation of the entire factual background. See Nieves-Rodriguez, 22 Vet. App. 295 (explaining that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The same analysis applies to other reports in the claims file that reference the Veteran's subjective history of a coccyx fracture in service. Moreover, the Veteran also submitted a January 2013 treatment report from the same private physician that concluded that the Veteran's diagnoses were "more likely than less likely due to her previous injuries that occurred when she was working. [S]he could could have sustained these problems over life in general but most people d[o] not. It is therefore more likely that not that her problems are related to what happened to her while working and not just because of nature." (Emphasis added). Perplexingly, the examiner makes no mention of service in this opinion. Even assuming that the examiner meant to reference the Veteran's work in service, the Board finds that the opinion lacks probative value for the same reasons as the other opinions. The opinion's probative value is also undermined by failing to recognize the Veteran's post-service work or other activities that the Veteran engages in, such as horse-riding and barrel-racing. See, e.g., July 2009 VA treatment report. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Id. at 304 (citing Stefl v. Nicholson, 21 Vet. App. 120 (2007)). In light of the above discussion, the Board finds that the most probative evidence of record is the January 2013 VA opinion. The Board has also considered the Veteran's statements asserting a nexus between her currently-diagnosed disorders and active duty service. While the Board reiterates that the Veteran is competent to report symptoms as they come to her through her senses, the Board finds that degenerative joint disease is not the types of disorder that a lay person can provide competent evidence on the issue of etiology. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal. Moreover, even if the Veteran were competent to offer evidence as to the cause of her disabilities, the Board attaches greater probative weight to the clinical findings than to her statements, given the training and expertise of medical professionals and their consideration of other pertinent information, such as the results of a physical examination or X-ray findings. Accordingly, the third element needed to establish service connection, a nexus between active duty service and current complaints, has not been satisfied. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for residuals of back injuries. As such, the appeal is denied. ORDER Service connection for residuals of back injuries is denied. ____________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs