Citation Nr: 1322232 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-25 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which declined to reopen the Veteran's previously denied claim of entitlement to service connection for a back disability. In a September 2012 Board decision, the claim was reopened and remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in a December 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. VA treatment records were associated with the claims file while appellate action was pending before the Board. Pursuant to 38 C.F.R. § 20.1304(c), a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims file must be referred back to the RO for consideration. However, section 20.1304(c) requires that such evidence must be 'pertinent' to the claim. In this case, the Board finds that the newly added VA treatment records are redundant of evidence already of record and are therefore not "pertinent." As will be explained below, it is undisputed that a current back disability exists and that the Veteran claimed service connection for a back disability as early as 1970. Thus, the Board has determined that the evidence does not require referral to the RO, nor does it require a waiver signed by the Veteran. FINDING OF FACT The Veteran's currently diagnosed back disability, to include degenerative disc disease (DDD) of the thoracolumbar spine, is not shown to have been manifested in service and is not otherwise attributable to his active military service. CONCLUSION OF LAW The criteria for an award of service connection for a back disability, to include DDD of the thoracolumbar spine, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the claim on appeal, a pre-decisional notice letter dated in January 2007 complied with VA's duty to notify the Veteran with regard to this issue. The letter also informed the Veteran of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon this issue. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained identified service treatment records (STRs), Social Security Administration (SSA) records, and VA treatment records of the Veteran. Pursuant to the September 2012 Board Remand, the AMC sent the Veteran a letter dated in October 2012, which requested that he complete and return a new VA Form 21-4142, Authorization and Consent to Release Information, for each private health care provider with whom he claimed to have sought treatment for his back disability. Critically, however, the Veteran did not reply to the October 2012 letter and did not return the requisite VA Form 21-4142s. To the extent that such medical evidence exists, it is the Veteran's responsibility either to furnish it directly to VA or to identify it with reasonable specificity so that VA can obtain it. In this case, the Veteran has done neither. Accordingly, there is no indication that any additional action is required to comply with the duty to assist. The Veteran was afforded VA examinations in February 2012 and October 2012 as to his service connection claim. The medical opinions expressed therein reflect that the VA examiners thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered opinions which appear to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the February 2012 and October 2012 VA examination reports are adequate for evaluation purposes with respect to the Veteran's claim of entitlement to service connection for a back disability. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue decided on appeal. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau, 492 F.3d at 1377. Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran has asserted entitlement to service connection for a back disability, which he contends is due to his military service. Specifically, he contends that he slipped and fell in 1969 while in service and injured his back. See, e.g., lay statement dated September 2007; VA examination dated January 2009. He claims that he was subsequently hospitalized for two weeks. For the reasons set forth below, the Board concludes that service connection is not warranted for a back disability. The Veteran STRs show treatment for complaints of low back pain and myalgia in June 1969. A July 1969 STR indicated that he had a backache. Crucially, there is no record of in-service hospitalization for a back injury. Moreover, the March 1970 service separation examination is pertinently absent any indication of in-service hospitalization for treatment of a back injury. Moreover, he expressly denied recurrent back pain in the accompanying report of medical history. In May 1970, the Veteran filed an initial claim of entitlement to service connection for a "back injury - 1969." He also filed an application for outpatient VA treatment alleging the same injury in June 1970. His claim was denied in a July 1976 RO decision. VA treatment records dated in April 2000 and February 2001 document complaints of low back pain. Magnetic resonance imaging (MRI) of the lumbar spine conducted in October 2003 revealed "narrowing of the intervertebral disc spaces with what appears to be osteophyte formation at T12-L1, L3-L4, L4-L5, and L5-S1 levels, probably suggesting DDD..." A VA treatment record dated November 2006 documented a history of chronic low back pain with lumbar DDD/DJD." A March 2007 VA treatment record noted a continuing diagnosis of "L4-L5, L5-S1 disc herniation with facet degenerative osteoarthritis." The Veteran was afforded a VA examination in January 2009. The examiner noted the reported of in-service injury and history of continuing back symptomatology. The examiner also indicated that following his military discharge, the Veteran worked at various jobs, including as a pipefitter in a refinery and as a municipal sanitation department worker. The examiner diagnosed the Veteran with DJD of the lumbosacral spine with disc protrusions at multiple levels. With respect to medical nexus, the January 2009 examiner opined, "[w]hether his back problem[s] now are related to his service back injury is hard to tell. It is my opinion that his current problems of back pain is at least as likely as not (50/50 probability) related to his back injury in service, if his hospitalizations for two weeks following back injury is true. (No records in file)." The Veteran was afforded another VA examination in February 2012, at which time the examiner confirmed a diagnosis of DDD of the thoracolumbar spine, facet joint arthritis of the lumbar spine, and DJD of the right sacroiliac joint. After examination of the Veteran and review of the claims file, the examiner determined that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that "[a]s noted in medical records, the Veteran was seen for back and shoulder myalgia on June 27, 1969. The Veteran was again seen on July 28, 1969 with backache and headache when bending over. This indicates that this is more of a tension type headache." The examiner continued, "[o]n March 23, 1979, nine months after the initial onset of his back pain, the Veteran was qualified for separation. At that time, there was no history of chronic or ongoing back problems. Also, after 1970 there are no medical records to show until 2000 that the Veteran had a chronic back condition that stemmed from his injury or his backache in 1969." The examiner further noted that the Veteran's April 2000 treatment was for fever and urinary tract infection and although his medical history noted chronic low back pain, there was no indication as to what had caused the pain. The examiner concluded, "[t]herefore, based on medical records reviewed, it is less likely than not that his backache from 1969 has caused chronic back problems which has led to degenerative changes of the thoracolumbar spine and sacroiliac joint by the fact that there is no evidence of medical records showing that the Veteran had continued back problems after being discharged from the military." Following the September 2012 Board Remand, the Veteran was afforded another VA examination in October 2012 at which time the examiner noted the 2008 MRI demonstrating multilevel degenerative and discogenic disease with associated neural foraminal narrowing as well as Grade 1 anterolisthesis of L5 on S1 secondary to facet arthropathy. With respect to medical nexus, the October 2012 VA examiner concluded that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." He explained that the Veteran did have proximate medical treatment in 1971; however, "[t]here was not continuous interceding treatment. There is a thirty year hiatus in treatment. This allows for common work and recreational injuries and normal aging." The examiner continued, "[t]he treatment after 2001 is extensive. If the Veteran had the severity of symptoms he had in 2001 prior to 2001, he would have been expected to have sought medical treatment which he did not. The evidence based medical guidelines do not support causality with the level of injury and the length of time without treatment." The examiner further stated, "[t]here is not sufficient material information to establish nexus between the active duty injury in 1971 and low back condition in 2001 and current low back condition." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "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." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). In this matter, the medical evidence of record shows that the currently diagnosed chronic thoracolumbar spine disability is not due to the Veteran's military service. Specifically, the Board finds the February 2012 and October 2012 VA medical examination reports probative as to the question of etiology, as they appear to have been based upon a thorough review of the record and thoughtful analyses of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Crucially, the February 2012 and October 2012 VA examiners concluded that the Veteran's diagnosed back disability, to include DDD of the thoracolumbar spine, is not etiologically related to his in-service back symptomatology. The rationale was substantial, thorough, and based on the overall record. The Veteran has not produced a medical opinion to refute the conclusions set forth in the February 2012 and October 2012 VA examination reports concerning the issue of medical nexus. As was explained in the VCAA section above, he has been afforded ample opportunity to present competent medical evidence in support of his back disability claim. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). To this end, the Board recognizes that the January 2009 VA examiner provided a positive medical nexus opinion with respect to the claimed back disability. Critically, however, the January 2009 VA examiner's opinion was admittedly speculative and was based upon the Veteran's unconfirmed contentions of in-service hospitalization for a back injury. Accordingly, the medical nexus opinion provided by the January 2009 VA examiner is of little probative value. See Nieves-Rodriguez, 22 Vet. App. at 295; Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence); see also Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, the February 2012 and October 2012 VA examination reports stand unchallenged as competent medical evidence on the crucial question of medical nexus. As indicated above, the Veteran has submitted his own statements to support his claim of service connection. As a lay person, he is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to his military service. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that he is now claiming that his back disability is the result of his military service, he is not competent to comment as to the etiology of the claimed disorder here as the relationship goes beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board further observes that the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed chronic back disability, are contradicted by the findings of the February 2012 and October 2012 VA examiners who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. The Board recognizes that the Veteran filed a claim for VA compensation in May 1970 and applied for VA treatment of his back in June 1970. However, there is no indication that he was diagnosed with a degenerative disease of the back during his military service or for decades thereafter. Moreover, the Veteran's assertions of in-service hospitalization for a back injury are not supported by the record, which documents no more than acute back symptomatology during his military service. See the STRs dated June 1969 and July 1969; and the March 1970 service separation examination. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Additionally, the Board recognizes that as with 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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). Crucially, however, there is no evidence that the Veteran was diagnosed with DDD of the thoracolumbar spine during his military service or for decades thereafter. C.f., Walker, 708 F.3d at 1331. Moreover, his separation examination was normal and he denied back problems at that time. Accordingly, the Board finds that the reported history of continued symptoms dating from the period of active service to present is not credible. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the uncontradicted VA medical opinions, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the contentions that the Veteran's current back disability is related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for back disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs