Citation Nr: 1320392 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-17 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a bilateral shoulder disability. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran filed a notice of disagreement in January 2008. The Veteran was provided with a Statement of the Case (SOC) in April 2009 and a Supplemental Statement of the Case (SSOC) in May 2013. The Veteran perfected his appeal in May 2009 with a VA Form 9. In May 2013, the RO certified the appeal to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA Medical Center treatment records dated from April 2006 to October 2012. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran developed a lumbar spine disability, variously diagnosed as multilevel spondylosis and spinal stenosis, during military service. 2. The probative evidence of record demonstrates that the Veteran developed a bilateral shoulder disability during military service. CONCLUSIONS OF LAW 1. A lumbar spine disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A bilateral shoulder disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA With respect to the claims for entitlement to service connection for a lumbar spine disability and a bilateral shoulder disability, because the claims are granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issues on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Analysis The Veteran alleges that, as a result of military training and exercises as an infantryman, airborne, and air assault soldier during his service, he developed a lumbar spine and bilateral shoulder disability. In particular, the Veteran claims that constant running, marching, landing from jumps, and carrying heavy backpacks all contributed to his current disabilities. The Veteran has stated that these conditions began in the military and have continued to the present. The Veteran has also stated that he sought treatment immediately following military service in 1970, to include taking oral pain medications and receiving chiropractic treatment. As both of these claimed disabilities are alleged to have the same onset and etiology, a common discussion of both conditions shall follow. A review of the Veteran's service treatment records (STRs) shows that he was seen in February 1967 for a complaint of low back pain. This incident was related to work on an armored personnel carrier. The Veteran was assessed with low back strain. No further entries were noted for any other complaints of low back pain, diagnoses, or treatment. There were no entries related to complaints, diagnoses, or treatment of the Veteran's shoulders. The Veteran's entrance and exit examinations did not indicate any low back or shoulder disabilities. The Veteran's VA outpatient treatment records show that he has been seen for complaints of pain related to his lumbar spine and shoulders. The Veteran has been assessed and diagnosed with chronic pain syndrome in general and multi-level spondylosis and spinal stenosis in particular for his lumbar spine disability. No indication of etiology was provided for these conditions. The Veteran's private treatment records show that the Veteran has been seen for complaints of shoulder pain since November 2000 and complaints of low back pain since February 2003. In general, for both conditions, the Veteran has been diagnosed with osteoarthritis and chronic pain syndrome. For the Veteran's low back pain, he has been diagnosed with multi-level spondylosis and chronic mechanical low back pain. Mild tenderness has been noted for both conditions and full range of motion has been reported. The Veteran also sought regular chiropractic treatment from April 2006 to October 2006, in which aching and soreness were noted as well as frequent pain after walking. The Veteran provided copies of a private medical opinion dated January 2008 and April 2009. Dr. J. L., the Veteran's private treating physician, provided a point by point breakdown of the Veteran's military service from Basic Training to his final assignment and significant awards. In discussing each portion of the Veteran's service, Dr. J. L. provided details of the types and severity of injuries associated with the Veteran's activities, including citations to medical literature and Army regulations to support her contentions. Dr. J. L. opined that, as result of three years of the Veteran's military activities, he developed serious back and shoulder pain, manifesting in the Veteran's currently claimed disabilities. The Veteran's conditions were specifically described as back pain that is the result of multi-level spondylosis, disc bulges, and herniations creating severe multi-canal stenosis and neural foraminal narrowing, and shoulder pain with decreased range of motion to abduction and elevation in both shoulders. In supporting her opinion, Dr. J. L. noted that the Veteran did not have a lumbar spine or shoulder disability prior to entering military service and that the types of activities in which he regularly engaged were likely to result in the current manifestations. A VA examination was provided for the Veteran's spine only in January 2007. After reviewing the Veteran's medical evidence, the examiner diagnosed the Veteran with radiographic evidence of lumbar spine disc degeneration, minimal functional impairments. The examiner opined that the Veteran's current lumbar spine disability was not related to the low strain reported in service or any other event or injury. In support, it was provided that there was no indication in the Veteran's STRs that the Veteran's low back strain was permanent or chronic. Further, it was noted that the Veteran completed a health history at the end of his service denying back problems and that there were no records relating to treatment for a back problem immediately following service. An additional VA examination was provided in September 2012. This examination evaluated both the Veteran's lumbar spine and bilateral shoulder disabilities. Upon reviewing the medical evidence of record, the examiner diagnosed the Veteran with lumbar spine stenosis and an unidentified bilateral shoulder disability reflecting degenerative changes. With regard to the lumbar spine disability, the examiner opined that the condition was less likely than not incurred in or caused by an in-service event, injury, or illness. In support the examiner provided that, despite the Veteran's military duties that included arduous conditions in the field and trauma jumping from helicopters, there is no medical evidence linking the Veteran's activities to his current disability. It was noted that there were no further complaints of back pain after the 1967 assessment of low back strain and that the Veteran had a normal exit examination, as well as a lack of records showing treatment within a year of leaving service. The examiner also discussed the private medical opinion provided by Dr. J. L., but found that, despite the detailed analysis of the Veteran's service duties and discussion of possible medical pathologies, the doctor was unable to show direct evidence of a relationship and that her opinion was merely speculative. With regard to the bilateral shoulder disability, the examiner opined that the condition was also less likely than not incurred in or caused by an in-service event, injury, or illness. In support, the examiner provided that, despite the Veteran's military duties that included arduous conditions in the field and trauma jumping from helicopters, there is no medical evidence linking the Veteran's activities to his current disability. The examiner noted that there was no medical evidence of a shoulder disability in service or within one year after service. Further, the examiner also discussed the private medical opinion provided by Dr. J. L., but found that, despite the detailed analysis of the Veteran's service duties and discussion of possible medical pathologies, the doctor was unable to show direct evidence of a relationship and that her opinion was merely speculative. The Board notes that the evidence of record supports a finding of a current disability because the Veteran's private treatment records, VA medical records, VA examination, and private opinion revealed current diagnoses of both a lumbar spine condition and a bilateral shoulder condition. See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; see also Shedden, 381 F.3d at 1167; Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303. The Board also notes that the evidence supports a finding of an in-service incurrence because the Veteran's service personnel records, statements, and medical literature submitted in support of the private opinion from Dr. J. L., as well as the 1967 treatment for low back strain, show that he sustained traumatic events during military service due to the nature of his duties. Id. Thus, the issue turns upon a finding whether there is a nexus between his current disability and military service. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not given to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The U.S. Court of Appeals for Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation 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."). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The above being taken into account, the Board finds that more probative value is afforded to the private examiner's opinion than the VA examiner's opinion. First, there is a significant difference in the level of expertise and professional credentials of the two examiners, as the VA examiner was a nurse practitioner and the private examiner was a licensed physician. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). While not dispositive, the level of experience of the private physician does lend more credibility and weight to her conclusions. Second, and most importantly, the rationales offered for the private and VA opinions differ greatly. Specifically, the private medical opinion offers a thorough rationale for the opinions rendered, including an extensive analysis of the Veteran's service details, duties, and awards, as well as citation to pertinent medical literature and Army regulations in support. In contrast, the VA examiner merely provided a limited statement, indicating that, absent medical documentation showing that the Veteran developed the claimed conditions during service, any conclusion showing an etiological relationship would be speculative. See Miller, 11 Vet. App. at 348. No further explanation or analysis was provided, to include a discussion of the Veteran's lay testimony regarding symptoms during service, treatment thereafter, and continuity to the present. See 38 U.S.C. § 1154(a); see also Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F .3d at 1337; Davidson, 581 F.3d at 1313. Further, the mere fact that there is no evidence of treatment is not a sufficient rationale for VA purposes. See Nieves-Rodriguez, 22 Vet. App. at 295 (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). In short, the private examiner provided a well reasoned and in depth rationale for how the Veteran's lumbar spine and bilateral shoulder conditions were chronic, and could likely have had onset in service due to the nature and frequency of the Veteran's duties, and provided a medical literature discussion of similar medical conditions for similarly situated veterans. See Id.; Stefl, 21 Vet. App. at 124. The Board further notes that, although the VA examiner contends that the private examiner's opinion is merely speculative, Dr. J. L. actually goes into such detail and support in consideration of all procurable and assembled data that her opinion becomes a fully supported one. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The VA examiner's opinion rather becomes inconclusive, as it is not fully explained as to why the absence of records is dispositive, especially in light of the Veteran's detailed military history, medical literature, and military literature. In balancing the competent medical evidence for and against the claim on causation, the opinion of Dr. J. L. supports the claim by providing a nexus, and the evidence outweighs the opinion of both the 2007 and 2012 VA examinations which oppose the claim. Therefore, the Board finds that the Veteran developed a lumbar spine and bilateral shoulder disability, variously diagnosed as multilevel spondylosis, spinal stenosis, osteoarthritis, and chronic pain syndrome, during military service as established by the more probative and persuasive nexus opinion of the Dr. J. L. The appeal is granted. ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a bilateral shoulder disability is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs