Citation Nr: 1320400 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-29 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Paul M. Goodson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1991 to October 1994. He also had additional service in the Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2012, the Veteran testified at a Board videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. FINDING OF FACT A chronic low back disability was not demonstrated in service or within one year of discharge from active duty, and the preponderance of the evidence is against finding a nexus between the current low back disability and service. CONCLUSION OF LAW A chronic low back disability was not incurred in or aggravated by service; arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in September 2007 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording a VA examination and obtaining a medical opinion. In this case, the Veteran was afforded a VA examination in June 2010 and a supplemental opinion was obtained in August 2010. The June 2010 examiner reviewed the claims file, noted the pertinent medical history, examined the Veteran, and provided the requested medical opinion with supporting rationale. The August 2010 examiner also reviewed the claims file, including the testimony of Dr. Brown. During the April 2012 Board hearing, the Veteran and his attorney argued that the June 2010 physical examination was very brief and therefore inadequate. The examination report, however, contains detailed findings related to the Veteran's spine, noting the curvature and musculature, and included motor, sensory, reflex, and range of motion examinations. X-rays were also taken. The Veteran does not argue that any specific finding is missing and no deficiencies are apparent. Hence, the Board finds that all questions necessary to render the determination made herein have been answered. The medical examination, along with the supplemental medical opinion, is therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). The Veteran and his attorney also argue that the VA examination was unnecessary and that VA is prohibited from undertaking additional development if the purpose is to obtain evidence against the Veteran's case, citing Mariano v. Principi, 17 Vet. App. 305, 317 (2003). They argue that VA should have relied solely on the testimony of Dr. Brown, applied the benefit of the doubt doctrine, and granted the Veteran's claim. As will be discussed in greater detail below, however, Dr. Brown's testimony was equivocal in nature and additional medical evidence was needed to decide the claim. Hence, VA had a duty to obtain a VA medical examination and opinion. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), 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 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, at the April 2012 prehearing conference and during the hearing itself, the undersigned Acting Veterans Law Judge identified the issue on appeal (Transcript (Tr.), pg. 2). Information was also solicited regarding the issue on appeal, including a description of the in-service event (Tr., pg. 6), his current back problems (Tr., pgs. 10-11), and a nexus between the two (Tr., pg. 7). Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for service connection. Significantly, neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the manner in which the Board hearing was conducted. 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. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria 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; 38 C.F.R. § 3.303(a). Service connection requires competent 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); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For veterans who served for 90 days or more during a war period or after December 31, 1946, service connection may be presumed for certain chronic diseases, such as arthritis, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred 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 VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the Veteran asserts that his current low back disability is related to an injury he sustained in service. During the April 2012 Board hearing, he testified that he threw out his back while doing strenuous labor (Tr., pg. 6). He said he went to the medical corpsman and was put on light duty for a couple of weeks. Id. A June 1993 service treatment record reflects that the Veteran complained of a 5-day history of low back pain. He denied any trauma, stating that the pain started while he was watching television in a push-up position. On physical examination, the pain was localized to the lumbar area without edema ecchymosis, point tenderness, or deformity. He had full range of motion with bending and rotation side to side. There was no tenderness on palpation of the flanks. The assessment was lumbar strain. He was prescribed Indocin (a nonsteroid anti-inflammatory), and instructed to apply moist heat for 15 minutes as needed. He was also given back exercises and told to return if he had no improvement in 4 days. There was no follow-up treatment. At the Veteran's June 1994 separation examination, his spine was clinically normal and he denied recurrent back pain. Later that month, he was treated for a viral syndrome with symptoms that included back pain, fever, chills, and nasal congestion. On a December 1995 Report of Medical History for the Naval Reserve, he denied having had or having recurrent back pain. A June 1997 private physical therapy record reflects that the Veteran had low back pain secondary to an occupational injury in the past. It was noted that work-up in the past and a magnetic resonance imaging (MRI) showed a herniated disc at the L4-L5 level for which conservative management was suggested. A January 2000 VA treatment records reflects that the Veteran complained of low back, noting a history of discectomy in 1997 after an accident working on an off shore oil well. In February 2000, he stated that he reinjured his back in a motor vehicle accident (MVA) and had to go to court. In May 2000, the Veteran filed an original claim for VA nonservice-connected pension benefits. He stated that he had sustained a "severe injury while working as an off shore oil worker" in February 1997. A May 2000 VA treatment record notes that the Veteran reported that he was fine until February 1997 when he had a "fuel/water related injury." In June 2000, he stated that he had had chronic low back pain since the injury at work in 1997. During a July 2000 VA examination for pension purposes, the Veteran reported that he initially injured his lower back in February 1997 while working for an off shore oil company. He said he had been lifting objects that weighted approximately 75 lbs onto a ship and sustained an acute back strain during a lifting/twisting movement. He said the injury resulted in an intense amount of low back pain, which radiated into his right leg. The examiner's impression was herniated nucleus pulposus at the L4-L5 level status-post discectomy and fusion; MRI evidence of herniated nucleus pulposus at the L2-L3 level; and intractable low back pain managed with morphine through a pain management center. In an October 2000 written statement, the Veteran reported that he re-injured his back in March 2000 while working as a marine electrician for a ship repair company in Boston. He said he was unable to perform his duties and was terminated. During a December 2001 VA examination for pension purposes, the Veteran reported that he injured his back in February 1997 and was diagnosed with a herniated disc at the L4-L5 level. He underwent conservative therapy, but eventually opted to undergo surgery in August 1997. He said he had some improvement, but now had herniations at the L3-L4 and L5-S1 levels. The impression was continued low back pain, status post posterior spinal fusion, discectomy, with instrumentation. The examiner opined that the Veteran's "back complaints all stem from an injury that he sustained after his military service, and does not appear to be related in any way to his military duties. He states that he had no back pain, and was in tip-top shape when he got out of the military." In July 2007, the Veteran filed the present claim of entitlement to service connection for a low back disability. He reported that he hurt his lower back during service and was put on a medical hold. He said that he believed this was the beginning of his problems. In May 2010, the Veteran submitted a transcript of testimony provided by Dr. Brown in December 1999. The Veteran filed a lawsuit against his former employer for damages he sustained when he injured his back in February 1997; Dr. Brown provided testimony on behalf of his former employer. Relevant to the present claim, Dr. Brown testified that a February 1997 MRI showed that the Veteran had a herniated disc at the L4-L5 level, but that it could have happened at some other point in time (Tr., pg. 785). He also testified that simply having a herniated disc does not mean that an individual will have symptoms or require surgery (Tr., pgs. 791, 794). He noted that the February 1997 MRI showed that the Veteran had some degenerative processes, which occurred over time, and were likely present six months prior to the MRI (Tr., pgs. 795-797). During questioning, Dr. Brown was asked to assume that the Veteran hurt his back going through a vigorous routine involving push-ups and that he was instructed to stop half-way day and stay there for 10 to 15 minutes (Tr., pg. 797). Dr. Brown was asked to assume that the Veteran strained a muscle, received treatment from the ship's nurse, and recovered in two days. Id. Dr. Brown was then asked, Q: Within a reasonable degree of medical probability, could this episode produce the findings that you observed on those February 22, 1997 MRIs? A: The herniating disk, yes. The degenerative processes, probably not. Q: Again, with respect to those findings on the MRI, I want you to assume that [the Veteran] played sports in high school which included track, basketball and football. Within a reasonable degree of medical probability, could participation in those activities produce the herniated disks on the MRI? A: Yes. The Veteran's counsel: Your Honor, it's an improper question. He's saying within reasonable medical probability, it could and that's not standard. It's within a reasonable probability it did. The Court: Well, does that make a difference to you whether it's could or did? Within a reasonable medical probability, do you have an opinion as to within a reasonable medical probability, the playing of sports caused a herniated disk? The witness: The herniated disk, did it cause? Probably not. The degenerative causes, I would restate that, yes. The Veteran's counsel: That's the same thing when we talked about the push-ups. The Court: Well, you can clarify that on your cross. (Tr., pgs. 797-799). On cross-examination, Dr. Brown was asked: Q: Are you stating within a reasonable medical probability, that [the Veteran's] herniated disk was caused back when he was in the Navy? A: It's a possibility. Q: I didn't say to a possibility. I said to a reasonable medical probability is that when [the Veteran] suffered his herniated disk? A: I would say just as much as saying it happened in February. (Tr., pg. 824). On re-direct, Dr. Brown was asked: Q: Would the material that you were given from [the Veteran's] direct testimony to this jury regarding the event in the Navy and his participation in high school sports, does that give additional data regarding operative events that could account for herniated disks? A: Yes. The etiologies are possibly reasonable. (Tr., pg. 847) During a June 2010 VA spine examination, the Veteran reported that his back "quit on him" in the Navy and he had to seek medical care. He said that he injured his back again in 1996. X-rays showed a wide laminectomy at the L5 level with metallic stabilization and cage device. The examiner opined that the Veteran's current lumbar degenerative joint disease and degenerative disc disease were not a continuation of the lumbar strain that he was treated for in the Navy. The examiner explained that there was only one incident of back pain in June 1993, which was treated conservatively. It was an acute self-limiting muscular condition associated with activity at home while he was a watching television in a push-up position. The Veteran denied any trauma at the time of the incident. Furthermore, there was no evidence of chronicity during military service. The examiner opined that a review of the records indicated that the current lumbar spine disability, including post-operative residuals, were due to the injury incurred during post-service employment in 1997. In August 2010, VA obtained a supplemental medical opinion, which included a review of the testimony provided by Dr. Brown. The examiner opined that it was "less likely than not" that the Veteran's chronic back condition found in the examination of June 2010 was a continuation of the in-service back strain. The examiner indicated that the service treatment records suggested that the injury was a self-limited muscle strain, which lasted a period of days, and there was no indication of chronicity or ongoing problems in service. There were also no specific complaints of physical findings to indicate a herniated disc. The examiner noted that a MRI had not been done prior to February 1997 and that it was impossible to say when the disc herniation had occurred. The examiner opined that the fact that he had a short-term lumbar strain in 1993 did not mean that he had a disc herniation at that time and that the available evidence suggested that he did not. The examiner stated, "From reading Dr. Brown's testimony, I don't believe Dr. Brown can say with any certainty when the findings of disk herniation at L4-5 began (he also stated that it is not unusual for a disc herniation to be an incidental finding)." The examiner noted that the Veteran was involved in heavy physical activity before, during, and after military service, including his post-military occupation activities which required handling of heavy hoses. Initially, the Board points out that the Veteran is competent to report that which he personally experiences, including the injuries to his back in service and during civilian life and resulting symptomatology. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent his statements are consistent with the underlying record, the Board finds him credible. Here, the evidence reflects that the Veteran sustained a lumbar muscle strain while watching television in a push-up position and was treated conservatively. He was instructed to return in four days if his symptoms had not improved; he did not return for any treatment. At separation, his spine was clinically normal and he denied any recurrent back pain. He injured his back again in 1997 and a MRI revealed a herniated disc. He was initially treated conservatively, but he continued to have pain. In August 1997, he opted to undergo surgery. In numerous statements, the Veteran reported that the onset of his current back complaints was the work-related injury in 1997. In connection with the present claim, to the extent the Veteran has reported ongoing symptomatology since the lumbar strain in service, the underlying record does not reflect this to be the case and he has been inconsistent in these contentions. Hence, the Board finds such statements lack credibility and that the military service treatment records and contemporaneous treatment records are much more probative. The Board emphasizes that this is not simply a case involving the lack of clinical evidence, but specific findings of a normal spine at separation and the Veteran's denial of any recurrent back pain. The preponderance of the evidence reflects that the Veteran's herniated disc and degenerative processes were not demonstrated in service, but were first noted on a February 1997 MRI, two years after he separated from service. The preponderance of the evidence also reflects that arthritis was not compensably disabling within one year of discharge from active duty. Therefore, the only remaining question is whether there is a nexus between the Veteran's service, including the lumbar strain, and his current low back disability. See 38 C.F.R. § 3.303(d). In this case, the Board acknowledges that there are conflicting medical opinions regarding the etiology of the Veteran's herniated disc and current low back disability. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds the most persuasive competent evidence preponderates against the claim of entitlement to service connection. In this regard, the December 2001, June 2010, and August 2010 VA examiners all opined that the Veteran's current low back disability was not related to the lumbar strain that he had in service. The December 2001 and June 2010 VA examiner specifically attributed the Veteran's low back disability to the injury he sustained at work in 1997. The August 2010 VA examiner was slightly more equivocal in her opinion. She noted that the Veteran was engaged in strenuous activity before, during, and after military service and that since a MRI was not done prior to February 1997, it was impossible to say exactly when the disc herniation occurred. Nevertheless, she opined that the available evidence did not suggest that the disc herniation occurred in 1993 and that it was less likely than not that the Veteran's current low back disability was related to service, including the lumbar strain therein. Each examiner reviewed the claims file, including the Veteran's service treatment records, and provided a rationale for his or her opinion. For these reasons, the Board finds the VA examiners' opinions especially probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). On the other hand, the testimony of Dr. Brown is much more equivocal. Although at one point he seemed to opine that the injury in the Navy was as likely an etiology for the herniated disc as the injury in 1997, when repeatedly questioned he indicated that the in-service injury "could" have been the etiology or that it was reasonably "possible." The Veteran's attorney at the time even objected to the vague medical terminology, noting that the wrong standard was being used. In the present case, the Veteran and his attorney argue that Dr. Brown testified that the Veteran's lumbar herniation was caused by service; however, this is a gross mischaracterization of the physician's actual testimony. Dr. Brown was merely bringing into question whether the herniated disc was caused by the work-related injury by noting other possible etiologies, including playing sports in high school. Furthermore, while Dr. Brown testified that he reviewed the medical records, it is unclear whether this included the Veteran's service treatment records. During questioning, Dr. Brown was asked to assume that the Veteran injured his back in service during rigorous training, which is inconsistent with the underlying record. For these reasons, the Board does not find Dr. Brown's testimony as persuasive as the other evidence of record. The Board has also considered the Veteran's lay contentions that his current low back disability is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of his low back disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the Veteran's lay assertions regarding etiology were competent, the Board finds the VA examiners' opinions discussed in detail above are much more probative. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability. The benefit of the doubt doctrine is not for application, and the claim is denied. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ STEPHANIE L. CAUCUTT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs