Citation Nr: 1321429 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-00 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to service-connected sarcoidosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978, followed by service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2008, the Veteran testified before the undersigned at a hearing that was held at the RO. A transcript of that hearing is of record. In May 2010 and November 2011, the Board remanded the claim on appeal to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. In January 2013, the Veteran's case was referred to a medical expert for an opinion regarding the issue on appeal. The opinion was associated with the claims file in March 2013, and the claim is again before the Board for appellate review. FINDING OF FACT The Veteran has not been shown to have a back disorder that is causally or etiologically related to his military service or to a service-connected disorder. CONCLUSION OF LAW A back disorder was not incurred in service and is not proximately due to, the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with notice in May 2004, prior to the initial decision on the claim in August 2005. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. Subsequent to the initial decision, in August 2006 correspondence, the RO provided the Veteran with general notice regarding VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. The timing of this later notice, however, is not prejudicial to the Veteran. Since that time, the Veteran's claim has been readjudicated multiple times, most recently in April 2012. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim.). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. While the Board notes that only partial service treatment records were obtained by VA, exhaustive attempts were made to locate the remaining treatment records that were missing. In August 2005, a formal finding of unavailability of service records was associated with the claims file. The Veteran was notified in correspondence dated in July 2005 of the attempts to locate his missing service treatment records. The Veteran was also provided the opportunity to testify at a hearing before the Board. The Veteran and his representative have not identified any outstanding evidence that is relevant to the claim on appeal. In addition, the Veteran was afforded a VA examination in June 2010 and December 2011, as well as an expert VA opinion in March 2013, in connection with his claim for service connection for a back disorder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examinations and medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, including the contentions of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board also notes that the case was remanded most recently in November 2011 to obtain VA and Social Security Administration records, as well as provide the Veteran with an examination with an opinion as to the etiology of his claimed disorder. On remand, the AOJ obtained the relevant records. As noted above, the Veteran was also afforded a VA examination in December 2012 and an expert opinion in March 2013. Accordingly, the Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there is no further notice or development needed in this case. The duties to notify and assist have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection for Back Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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). The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, VA medical records (including those contained in Virtual VA), private treatment records, Social Security Administration records, and VA examination and opinion reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran claims that he developed a back disorder, as a result of a fall during his active military service. While he has asserted that he was seen for back pain during his Reserve service, he has not asserted that his back disorder was incurred or aggravated during such service. As such, only the Veteran's period of active duty service will be addressed below. The evidence of record clearly establishes that the Veteran has a diagnosis of degenerative arthritis of the thoracolumbar spine, as well as multi-level degenerative disc disease with mild bilateral lumbar radiculopathy. See, e.g., December 2011 and June 2010 VA examination reports, respectively. However, the record simply fails to establish that either of the Veteran's back disorders is related to service. Regarding an in-service injury, the Veteran has alleged that he fell during active duty service and injured his back. The Veteran's service treatment records reflect that in May 1978, the Veteran was seen for complaints of lower back pain after he fell. He was diagnosed with a bruise due to a fall. Two days later he was seen for continued pain on both sides of his lower back, extending to his abdomen. He was diagnosed with pulled muscles with probably bruised bones. No further notations were made concerning his back prior to separation from active duty. Despite an in-service injury to the back, the Veteran's claim of entitlement to service connection for a back disorder cannot be granted because the evidence weighs against a finding that the Veteran's in-service injury and current diagnoses are related. Significantly, the only competent medical opinions directly addressing whether his current back disorders are related to service weigh against the claim. In this regard, in June 2010, a VA examiner opined that the Veteran's in-service injury appeared to be consistent with a thoracic etiology, and there was no indication that the fall he sustained was related to his current symptoms of multi-level degenerative disc disease of the lumbar spine. He further noted that while traumatic events may contribute to the degeneration of the back, isolated injury to the thoracic spine is unlikely to cause accelerated or denotable lumbar injury. Further, in December 2012, a VA examiner similarly found that it was less likely than not that the Veteran's current spine disorders are related to his period of active duty service. He noted that while the Veteran's service treatment records contained an entry of the Veteran having a fall backwards, he did not believe this was a significant injury and did not appear to be any significant ongoing problems related to it. In a March 2013 opinion, a VA neurosurgeon reviewed the record and provided an opinion stating that the Veteran's degenerative disc disease and degenerative arthritis did not at least as likely as not have their onset in service or are otherwise related to service. As rationale regarding degenerative disc disease, the neurosurgeon explained that this condition has been associated with repetitive or continuous axial overloading and with a significant component of genetic or hereditary predisposition. He further explained that isolated traumatic events are unlikely to produce chronic degenerative disc disease unless associated with obvious structural abnormalities resulting from the trauma, such as compression fractures, spondylolisthesis, or deformity, which could create a chronic condition of physical loading abnormality sufficient to promote the damage of the disc. Specific to the Veteran's case, he noted that the Veteran suffered a fall in May 1978 and records from June 1979 reveal reports of back pain. Available X-ray and MRI examination reports described multiple level of degenerative disc disease with degenerative stenosis at L4, L5, and S1 with no evidence of fracture, dislocation, or deformity, and with evidence of normal alignment. Traumatic conditions that would have predisposed the Veteran to the development of degenerative disc disease were not visualized in these studies. He noted that conditions such as fractures, spondylolisthesis, or deformity would be evident in imaging examination even years after their occurrence. As such, and even under the assumption that the Veteran has suffered from back pain since service, the neurosurgeon opined that the degenerative disc disease did not at least as likely as not have its onset in service or was otherwise related to service. Regarding the Veteran's diagnosis of degenerative lumbar arthritis, he noted that this condition is generally associated with the disc degeneration as the increased stress of the facet joints due to the degeneration of discs results in arthrosis and osteophytosis. Primary facet arthrosis can be inducted by traumatic conditions. He noted, however, that a single traumatic event was unlikely to generate arthritis of the lumbar spine, unless associated with facet joint, pedicle or vertebral fractures, spondylolisthesis, or deformity. In the absence of evidence for any of those traumatic conditions in the imaging reports, and even under the assumption that the Veteran had back pain since service, it was his opinion that the Veteran's degenerative lumbar arthritis of the lumbar spine is not at least as likely as not to have its onset in service or be related to service. The Board accepts these VA medical opinions as probative and dispositive evidence on the medical nexus question, as they were upon examinations of the Veteran and/or full consideration of the records, including the Veteran's assertions, and supported by a rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gbrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Neither the Veteran nor his representative has presented or identified a contrary medical opinion that supports the claim. In this regard, the Board notes that the Veteran submitted an April 2004 opinion from his private physician. The opinion noted that the Veteran had a history of low back pain with some radiation down the left leg, which "may be related to an injury he sustained while in active duty." This opinion, however, is speculative in nature and is therefore not probative. The United States Court of Appeals for Veterans Claims has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet. App. 237, 241 (1993). The key word here is "may," which is merely suggestive and insufficient to establish a nexus. See generally Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus). The physician's statement that "[the history of low back pain with radiation] may be related to an injury [that the Veteran] sustained while in active duty" is speculative on its face, and therefore, constitutes "non-evidence." As such, this opinion does not support the Veteran's claim for service connection. The record has also raised a claim of entitlement to service connection for a back disorder on a secondary basis. During a VA rheumatology consult in October 2009, a physician mentioned that if the Veteran had sarcoidosis causing arthritis, he would need to be seen in rheumatology. This suggests that the Veteran's service-connected sarcoidosis may be related to his back disorder(s). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The Veteran's claim of entitlement to service connection for a back disorder cannot be granted on a secondary basis because the evidence weighs against a finding that the Veteran's service-connected sarcoidosis and current diagnoses are related. Significantly, the only competent medical opinions directly addressing whether his current back disorders are related to service-connected sarcoidosis weigh against the claim. In this regard, in December 2012, a VA examiner found that it was less likely than not that the Veteran's current spine disorders are related to his service-connected sarcoidosis. As rationale, the examiner noted that the Veteran's degenerative spine condition is most likely related to the aging process. In March 2012 addendum opinion, the examiner further clarified that sarcoidosis is a non-caseating granulomatous disease of unknown cause, and it is known to have bone involvement in chronic cases. He noted that a December 2009 report of an MRI of the lumbar spine was interpreted as showing degenerative disc disease at multiple levels, worse at L4-5, and an annular bulge at L4-5, L5-S1, and degenerative stenosis at L4-5 and L5-S1. The examiner noted that there was no mention in that interpretation of the MRI of any involvement with sarcoidosis in the lumbar spine. While he could not rule out the possibility that the Veteran's degenerative arthritis was caused by sarcoidosis, he believed it was more probable that his arthritis is instead related to his aging process. He later clarified this statement as "the [V]eteran's spine condition is most likely degenerative in nature and less likely as not related to the diagnosis of sarcoidosis." This was based on the fact that there were two MRI reports of the spine, where the findings were described as degenerative in nature. There was no description of any lesions that the radiologist identified as sarcoidosis. As the December 2012 VA opinion did not address aggravation, the claims file was sent to a VA neurosurgeon for an expert opinion. In a March 2013 opinion, the neurosurgeon opined that neither the Veteran's degenerative disc disease nor his degenerative arthritis of the lumbar spine is at least as likely as not caused or permanently worsened by service-connected sarcoidosis. As rationale, he stated that sarcoidosis is an idiopathic, inflammatory condition that rarely affects the bones. The prevalence of skeletal involvement has been reported to be less than one percent. He noted that when skeletal structures are affected, the small bones of the hands and feet are most often involved, whereas spinal disease is extraordinarily uncommon. He explained that the radiographic appearance of spinal sarcoidosis includes lytic lesions with well-defined borders, some of which can be mixed lytic and sclerotic. MRI studies demonstrate multifocal, hyperintense signal abnormalities on T2-weighted images, which are hypointense to isointense on T1-weighted images. The posterior elements (including the facet joints) are usually spared, as are the intervertebral discs. Related to the Veteran's case, the neurosurgeon noted that the available imaging reports for X-rays and MRI do not describe any finding that would make sarcoidosis of the spine a likely diagnosis. The neurosurgeon explained that the degenerative and osteoarthritic changes reported for the Veteran are not recognized manifestations of sarcoidosis disease that very rarely would affect the spine. Again, the Board accepts these VA medical opinions as probative and dispositive evidence on the medical nexus question, as they were upon examinations of the Veteran and/or full consideration of the records, including the Veteran's assertions, and supported by a rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gbrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Neither the Veteran nor his representative has presented or identified a contrary medical opinion that supports the claim on a secondary basis. For the reasons discussed above, the Board finds that there is simply no probative medical evidence that the Veteran's back disorders are related to in-service injury or his service-connected sarcoidosis. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As for any direct assertions by the Veteran and/or his representative that there exists a medical nexus between the Veteran's back disorders and his military service or service-connected sarcoidosis, such evidence provides no basis for allowance of the claim. The matter on which this claim turns-a nexus opinion between the Veteran's service (or service-connected disability) and his current back disorders-is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are laypersons without the appropriate medical training and expertise, neither is competent to render a probative opinion on a medical matter, such as whether his back disorders were caused by in-service injury or service-connected sarcoidosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hence, the lay assertions in this regard have no probative value. The Board has also considered the Veteran's assertion of continuity of back pain since his in-service injury. In some cases, a Veteran may establish the nexus element through assertions of continuity of symptomatology, but only regarding conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is recognized as a chronic condition under 38 C.F.R. § 3.309(a). While the Board finds that the Veteran's statements of continuous pain since his in-service injury are competent and credible evidence in favor of his claim, they are outweighed by the March 2013 neurosurgeon's opinion. In this opinion, the neurosurgeon stated that even under the assumption that the Veteran suffered from back pain since service, he found that the Veteran's degenerative lumbar arthritis is not at least as likely as not to have its onset in service or be related to service. When weighed against the Veteran's statements of continuity of symptomatology, this opinion is afforded more probative weight because it was made by a medical professional who considered the fact that the Veteran has suffered from pain since his in-service injury. For all the foregoing reasons, the Board finds that the claim for service connection for a back disorder, to include as secondary to service-connected sarcoidosis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a back disorder, to include as secondary to service-connected sarcoidosis, is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs