Citation Nr: 1322173 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-28 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for postoperative diskectomy L5-S1 of the lumbar spine (low back disability). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which denied service connection for a low back disability. In November 2011, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine had its onset in service. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for degenerative disc disease of the lumbar spine. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). The Veteran's service treatment records reflect significant care for complaints and treatment for low back pain, including inpatient care in October 1992. The records show continued reports of low back pain and radiculopathy and a March 1994 profile indicates that he had he had history of recurrent back pain since 1992. Post-service private treatment records dated May 2001 indicate that the Veteran had degenerative changes present at the L4-L5 and L5-S1. A private treatment report reflects that the Veteran underwent surgery for an anterior diskectomy and interumented interbody fusion at the L4-L5 and L5-S1 in August 2001, following an injury at work. In March 2002, upon examination by a private physician, Dr. Schoedinger, the Veteran's lumbar flexion range of motion was 41 degrees. The Veteran's lumbar extension was 13 degrees and the lumbar lateral flexion was 19 degrees for the left side and 17 degrees for the right side. Private treatment records dated August 2003 show that the Veteran suffered from weakness in the lower extremities, specifically the left leg. The report indicated L5-S1 radiculopathy. The Veteran submitted his Social Security Administration (SSA) Notice of Decision letter, dated February 2005, which indicated that the he was receiving SSA benefits for his low back disability. The Veteran was afforded a VA examination in April 2009. The Veteran reported that he had suffered from a strain to the lumbar spine while in service. He stated that he had reinjured his back in 2001 while working as a locomotive engineer. The Veteran noted flare-ups with lifting, sitting and standing. He reported that the pain would radiate to his hips and noted left thigh and knee pain. Upon examination, the Veteran's range of motion for forward flexion was 40 degrees. Posterior flexion was 10 degrees and lateral flexion was 20 degrees bilaterally. Rotary flexion was 25 degrees bilaterally and pain was experienced at extreme range of motions for all flexion tests. The examiner diagnosed the Veteran with postop diskectomy L5-S1 of the lumbar spine. The examiner, however, opined that the Veteran's back condition was not related to the isolated strains experienced during service. The examiner stated that the Veteran's back pain resolved itself in service and that the record was quite for any back-related complaints following service until the Veteran's injury in 2001. At the March 2011 Board hearing, the Veteran stated that he injured his back while in service and suffered from pain and limited mobility in his low back. The Veteran indicated that after his in-service physical therapy was completed, that he self medicated by using a Transcutaneous electrical nerve stimulation (TENS) unit, along with ibuprofen and Motrin and "laying flat." He stated that he suffered from pain going down his legs since his injury in service. His spouse reported that she has known the since before the Veteran entered service and testified that after he injured his back in service, she would have to help him tie his shoes and help him into his truck. She also stated that she observed the Veteran experience pain in his low back and through his legs. She noted that he would sometimes fall because his leg "would go out." She stated that the Veteran would use the TENS unit and heating pads for the pain and corroborated the Veteran's account that he had had back problems since service, i.e., recurrent back problems prior to the post-service 2001 back injury. After a review of the entire record, the Board finds that service connection for degenerative disc disease of the lumbar spine is warranted. The Veteran is currently diagnosed with a low back disability and treatment records show that he was treated for lumbar back pain while in service. Further, the Board finds both competent and credible the lay report offered in statements and sworn testimony from the Veteran and his spouse as to the Veteran's recurrent low back strain since service, to include using the TENS unit, Ibuprofen and needing assistance are found to be competent and credible. In addition, the Veteran's lay statements describing his recurrent low back symptoms support the diagnosis of postop diskectomy of the L5-S1. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although a VA examiner has opined that the Veteran's current low back disability is not related to the in-service incident, his opinion is inadequate because it is based on an inaccurate factual predicate Based on his competent and credible report of having back problems since service, which was corroborated by his spouse, the Board finds that the back disability had its onset in service. In his opinion, however, the examiner focused on treatment records which did not reflect treatment for his low back disability until 2001. The examiner's conclusion considered the lack of medical evidence documenting the Veteran's low back treatment rather than the Veteran's competent, credible and probative statements regarding recurrent low back symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the foregoing, and resolving all reasonable doubt in his favor, the Board finds that service connection for degenerative disc disease of the low back is warranted. See 38 C.F.R. § 3.303(a); Jandreau. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs