Citation Nr: 1322532 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 05-16 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to December 1953. This matter on appeal before the Board of Veterans' Appeals (Board) arises from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before a Decision Review Officer (DRO) in October 2004 and at a hearing before the Board in July 2006. In March 2007 and July 2009, the Board remanded the appeal to the RO via the Appeals Management Center for further development. In an October 2010 decision, the Board denied the Veteran's claim for service connection for a low back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In an April 2012 order, the Court granted an April 2012 Joint Motion to vacate the Board's decision and remanded the matter to the Board for actions consistent with the terms of the Joint Motion. In October 2012, the Board remanded the matter for further development. A review of the record shows that there has been substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A low back disability did not have its onset during active service or within one year thereafter and it is not causally related to such service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in an August 2002 letter of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence. The letter predated the initial adjudication by the RO in June 2003. In a May 2006 letter, he was notified of how VA determines disability ratings and effective dates. The claim was thereafter readjudicated in June 2009. Thus, any timing deficiency has been cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. That duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but finds that there is no outstanding evidence relevant to the claim. In an April 2005 letter, R. Russell, M.D., a private physician, indicated that, after reviewing the Veteran's prior records and history, it was highly probable that his low back pain was connected to a prior injury related to his military service. In May 2005, VA sent Dr. Russell a letter asking him to clarify his opinion, to include identifying the records that were reviewed. Dr. Russell did not reply. In April 2013, VA again sent Dr. Russell a letter asking him to clarify his opinion and identify the records relied upon in rendering his opinion. In a separate April 2013 letter, VA advised the Veteran of the above action. Dr. Russell again did not reply. In a subsequent April 2013 statement, the Veteran expressed his belief that Dr. Russell did not have any more information relevant to the appeal and requested that VA proceed with the adjudication of the appeal. Thus, the Board finds that there is no further duty to obtain clarification from Dr. Russell. The Veteran's service medical records are not available in this case. The claims file shows that the Veteran's service medical records could not be located and were potentially destroyed in a fire at the National Personnel Records Center (NPRC). In a June 2003 letter, the Veteran was informed that his service medical records were not located. The Veteran was also informed that the records were unavailable in a June 2003 rating decision and a May 2005 statement of the case. The Veteran had an opportunity to submit any records in his possession. Where records are unavailable, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully whether reasonable doubt exists to resolve in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Because those records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). VA provided the Veteran with an examination in May 2009 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (2012). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In July 2009, the Board found the examiner's opinion incomplete and requested another examination. In August 2009, a supplemental opinion from the examiner who conducted the initial examination was obtained. In October 2012, the Board again found the examiner's opinion incomplete and requested another examination. In December 2012, VA provided the Veteran with another examination. The Board finds that examination report to be thorough and adequate upon which to base a decision on the claim. The examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information needed to decide the claim. The Board finds the opinion to be adequate, as it was based on a full reading of the records in the claims file as well as the Veteran's own statements. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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) (2012). In this case, the disability at issue, arthritis, is a chronic disease listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Where a veteran served for 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year from the date of separation from service, the disease shall be presumed to have been incurred in service, even though there is no evidence of the disease in service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran claims that he sustained an injury to his back in service and continues to have back problems. Associated with the claims file are hospital admission cards from the Office of the Surgeon General, Department of the Army, which indicate that the Veteran was admitted for between fifteen and nineteen days in Japan for what was termed diseases of the muscle tendon and fascia and posterior muscles of the abdominal wall in March 1953. Private treatment reports from Jackson Bone and Joint Clinic show that the Veteran reported a slip and fall injury in March 1955 which resulted in some low back pain. He also reported a lifting injury at work in July 1956 that resulted in low back pain. X-rays were taken but there is no record of findings. In April 1957, he had low back pain following a fall. X-rays were negative other than a slight irregularity of the anterior superior edge of the body of the third lumbar vertebra that was deemed to be old in nature and not associated with recent injury. In February 1969, he was found to have a herniated disc at L4 which the examiner concluded was due to an electrical shock in August 1968. The Veteran underwent disc surgery in February 1969 which revealed a protruded disc at L4. Private treatment reports from Baptist Medical Center indicate that the Veteran was seen for back pain in February 1969. He was assessed with a herniated disc at L4. The Veteran underwent a removal of the right disc at L4-5 later that month. Private treatment reports from River Oaks Hospital show diagnoses of degenerative lumbar disc disease, degenerative spondylosis, and chronic back pain. The Veteran underwent a lumbar fusion with internal fixation in October 1993. In December 2004, he underwent an exploration of the lumbar fusion and six pedical screws and two deep plates were removed from his spine. The final diagnosis was a healed fusion at L4-S1. A November 2003 medical statement from Dr. Russell indicates that the Veteran's current diagnoses included degenerative joint disease of the spine. Dr. Russell also submitted a statement dated in December 2004 in which he indicated that it was possible the Veteran's back pain was related to his military service because the type of pain was similar and the location of the pain was in a similar location. In an April 2005 letter, Dr. Russell indicated that after reviewing the Veteran's records and history it was highly probable that his low back pain was connected to a prior injury related to his military service. Dr. Russell stated that the rationale for the opinion was that the Veteran's current back pain was very similar to the pain that he had in service in regard to its location, quality, and the fact that the Veteran did not have an injury prior to the injury in service. VA outpatient treatment reports dated from October 2001 to August 2005 show treatment for chronic low back pain. A May 2005 magnetic resonance imaging (MRI) of the lumbar spine revealed multiple levels of chronic disc changes from L1-5, a significant amount of posterior osteophytes and bulging discs at L1-2, L2-3, and L3-4 with hypertrophy of the facet joints and ligamentum flavum causing a mild degree of spinal canal stenosis. The Veteran testified at a hearing before a DRO in October 2004. He indicated that he injured his back building pontoon bridges in service. He testified that he went to sick call several times and was diagnosed with a muscle strain. He indicated that he was hospitalized in service in Japan in 1953. The Veteran's current diagnosis was noted to be spondylolysis. The Veteran testified that he sought treatment for his back after service and underwent a spinal fusion in 1993. At the October 2004 hearing, the Veteran's representative submitted information indicating that spondylolysis is a stress fracture involving the pars interarticularis of the vertebral bones of the spine. The Veteran testified at a hearing before the Board in July 2006. The Veteran testified that he injured his back several times in service. He stated that the first injury occurred in 1951 and that he injured his back again a few years later in Japan. He indicated that he sought treatment for his back after service in 1955 at a civilian hospital. The Veteran testified that his back continued to worsen as he aged. He stated that he did not get injured on the job after service and his injuries occurred in service. He reported that he sustained an electric shock at home and not at work and he never sought Workers' Compensation. Private treatment reports from the Pain Clinic at Mae Physicians Surgery Center dated in October and November 2006 show a diagnosis of failed back syndrome for which the Veteran was treated with lumbar epidural steroid injections. The Veteran reported a history of injury to his back in service in 1951. In a June 2009 letter, the Veteran's wife stated that she met the Veteran in October 1953 two months prior to his discharge from service and recalled the Veteran telling her about hurting his back while building a pontoon bridge during basic training and continuing to have back pain while in Japan, where he was hospitalized for about two weeks. She also related her memory of the Veteran coming home from work and complaining of back pain beginning sometime after they were married in May 1955. Lastly, she stated that the Veteran had always complained of back problems. In another June 2009 letter, [redacted] indicated that he served with the Veteran and the Veteran injured his back in July 1951 while building a pontoon bridge and was placed on light duty for three weeks. Mr. [redacted] further indicated that the Veteran was placed on light duty several more times through April 1952. At a May 2009 VA examination, the Veteran reported a history of low back pain secondary to lifting heavy equipment while in service with recurrences of low back pain throughout his enlistment. He indicated that he had recurrences of low back pain while working after his discharge from service. Following a physical examination which included review of X-rays of the lumbar spine and a computed tomography scan from December 2008, the examiner diagnosed the Veteran with multilevel lumbar spondylosis and degenerative joint disease, status post L4-5 and L5-S1 fusion. The examiner indicated that an extensive review of the claims file and that the available service records did not document any treatment for injuries to the Veteran's low back. The examiner noted that the Veteran sustained a slip and fall injury in March 1955 and a lifting injury at work in July 1955. The examiner reported that the records included multiple entries for chronic low back pain and an entry noting electrical shock as a possible cause for herniation of a preexisting degenerative disc. The examiner also noted operative reports from 1969 and 1993. The examiner opined that it was less likely than not that the Veteran's current back condition was related to any back problems he had in service. The examiner could find no evidence in the medical record that the Veteran's current back condition was the direct and proximate result of any incident or occurrence in service. The examiner concluded that the Veteran's present back condition had no relation to any "unspecified disease of the bone, muscle, tendon, and fascia located in the posterior muscles of the abdominal wall." In August 2009, a supplemental medical opinion was requested from the VA examiner to further clarify the opinion regarding the etiology of the Veteran's back disability. The examiner noted that the Veteran reported an injury to his back while building bridges in service in July 1951 and was diagnosed with a lumbosacral strain and an additional injury to his back in Japan in 1953. The examiner reviewed the hospital admission cards from the Office of the Surgeon General and indicated that the only logical conclusion would be that the Veteran sustained a strain type injury as there was no indication that the Veteran sustained a herniated disc, nor were any degenerative disc or arthritis problems identified. The examiner opined that it was less likely than not that the Veteran's present back condition was related to, caused by, or aggravated by any incident or occurrence in service including the claimed 1951 lumbosacral strain and 1953 hospitalization. The examiner explained that the injuries in service were both lumbosacral strain type injuries, the Veteran was nineteen years old at the time of his hospitalization in 1953, and it was unlikely that he would have had any significant degenerative changes at such a young age. The examiner confirmed the prior diagnosis of multilevel lumbar spondylosis and degenerative joint disease and related the degenerative changes to the aging process. The examiner noted that the Veteran's treating physician related his low back pain to service because the pain was described as similar in nature and location. The examiner stated that there was no indication that the treating physician had the advantage of having access to the Veteran's entire medical record from over the years and respectfully disagreed with the treating physician's conclusion. The examiner noted that it appeared that the treating physician's opinion was based upon history provided by the Veteran. The Board found the examiner's opinion incomplete as it was based in part on the erroneous belief that Dr. Russell's opinion was based solely on the history reported by the Veteran. Thus, in October 2012, the Board requested another examination. At a December 2012 VA examination, the Veteran reported a history similar to that provided during the earlier examination. Following an examination and review of the claims file, the examiner indicated that the Veteran's low back disability was less likely than not incurred in or caused by service. The examiner stated that there was no radiographic evidence of arthritis within one year of service discharge, noting the normal 1956 X-rays. With respect to the records from the Office of the Surgeon General, the examiner stated that based on the Veteran's history it appeared that he had been treated for back pain during service but there was no evidence of any clear bone disease at that time, again noting the normal X-rays in 1956. The examiner indicated that Dr. Russell had only the Veteran's description of symptoms from the in-service injury made decades after the injury while the prior examiner had access to the actual records from the Office of the Surgeon General. The examiner noted that the Veteran's wife did not even know him during his time in service when he injured his back and the wife's statements were all second-hand from the Veteran. The examiner acknowledged Mr. [redacted]'s statements but observed that he was not a physician who had treated the Veteran. The examiner noted that an in-service back injury is documented but a strain or spasm does not automatically lead to the disc disease or herniation that the Veteran currently had. The examiner then noted the Veteran's numerous post-service injuries, the first one in March 1955, more than one year after discharge from service. The examiner reiterated that the Veteran's current low back disability was not related to service. In considering the evidence of record and the applicable laws and regulations, the Board concludes that service connection for a low back disability is not warranted. The available service records from the Office of the Surgeon General show an admission for diseases of the muscle tendon and fascia and posterior muscles of the abdominal wall in March 1953. The Veteran indicated that hospital stay related to a back injury and he injured his back two years earlier while building bridges in service. Both VA examiners determined that the in-service hospital admission related to a lumbar strain type of injury and noted that the earlier 1951 injury was, as reported by the Veteran, diagnosed as a lumbosacral strain. After service, private treatment reports show that the Veteran injured his back in March 1955 when he slipped and fell. He did not report a history of prior injury or back pain at that time. He again injured his back in July 1956 while lifting at work. Although X-rays were taken, their findings are not of record. He injured his back yet again in April 1957 when he fell. X-rays were negative other than a slight irregularity of the third lumbar vertebra. Then, in February 1969, he was found to have a herniated disc at L4 that was attributed to an electrical shock he sustained in August 1968. The Board finds that the record does not show that the Veteran's current low back disability is due to any injury in service. The record suggests, and the examiners found intercurrent causes, namely, several post-service injuries. Additionally, the evidence of record does not show that arthritis was diagnosed within one year of the Veteran's separation from service to warrant service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). Accordingly, the Board finds that the Veteran's low back disability did not have its onset during active service or within one year thereafter. The remaining question is whether it is otherwise causally related to such service. Although a private physician opined that the Veteran's low back disability is related to injuries sustained in service, two VA examiners opined that it is not. The Board finds the opinions of the two VA examiners, particularly the one who conducted the December 2012 examination, to be more probative and persuasive than that of the private physician as they reviewed the Veteran's entire medical history, including the private physician's opinion. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). The December 2012 examiner discounted the private physician's opinion as it relied only on the Veteran's current report of symptoms of an in-service injury that occurred decades earlier as opposed to the objective records from the Office of the Surgeon General and the report of X-rays taken several years after service, both of which are contained in the claims file but not made available to the private physician. The examiner also acknowledged the Veteran's in-service strain injuries but explained that such injuries do not automatically lead to the disc disease or herniation that the Veteran has. The Board finds that the Veteran's current low back disability is not causally related to active service, to include the reported 1951 injury and the documented 1953 injury. Consequently, service connection is not warranted as the weight of the probative medical evidence of record does not establish that any current low back disability is etiologically linked to the Veteran's active service. Although the Board is not questioning the competence of Dr. Russell, the Board finds that his opinion is not entitled to more weight merely because he treated the Veteran. VA's benefits statutes and regulations do not provide any basis for according any greater weight to a treating physician. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). The Board acknowledges the Veteran's assertions that he has had problems with his back since active service. The Board notes that the Veteran is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran is claiming to have experienced continuous pain in his back since active service due to an in-service injury, he is not found credible. The Board initially notes that the Veteran incurred several post-service injuries. At the time of his first post-service injury, he did not report a prior history of back injury or pain. There is no indication that he has had back pain since his in-service injuries until Dr. Russell's December 2004 statement. If he had experienced back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in July 2002. The Board finds that the statements alleging or implying continuity of symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the weight of the probative medical evidence of record does not relate the current back disability to active service and the Board finds that evidence is more persuasive than the lay contentions of relationship to service. The Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs