Citation Nr: 1322644 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 08-19 630A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder to include degenerative disc disease and low back injury residuals. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from April 1978 to November 1978 and from November 1979 to April 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the St. Petersburg, Florida, Regional Office which denied service connection for lumbar spine degenerative disc disease. In August 2011, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting in San Antonio, Texas. A hearing transcript was prepared and incorporated into the record. In October 2011, the Board remanded the Veteran's appeal to the Houston, Texas Regional Office (RO) for additional action. In April 2012, the Board again remanded the Veteran's appeal to the RO for additional action. That action requested by the April 2012 Board remand was accomplished and the case subsequently returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In January 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert. In January 2013, the requested VHA opinion was incorporated into the record. In March 2013, the Board determined that the VHA opinion was insufficient and requested that the VHA opinion be clarified. In March 2013, an amended VHA opinion was incorporated into the record. In April 2013, the Veteran was provided with a copy of the VHA opinion and the addendum thereto. He did not subsequently submit any additional evidence or argument. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issue of service connection for a low back disability as entitlement to service connection for a lumbar spine disorder to include degenerative disc disease and low back injury residuals in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In its April 2012 Remand, the Board referred the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a low back disorder for appropriate action. The record does not reflect that action has been undertaken as to that issue. Therefore, the issue is again referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection is currently in effect for left knee chondromalacia, hearing loss, and tinnitus. 2. A lumbar spine disorder was not manifested during active service or for many years thereafter. 3. The Veteran's lumbar spine degenerative disc disease has not been shown to have originated during active service. 4. The Veteran's lumbar spine degenerative disc disease has not been shown to be etiologically related to his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for service connection for a lumbar spine disorder to include degenerative disc disease and low back injury residuals are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3. 310(a), 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), 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 the Department of Veterans Affairs (VA) will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. VA has issued several VCAA notices to the Veteran including a January 2007 notice which informed him of the evidence generally needed to support a claim of entitlement to service connection and assignment of an initial evaluation and effective date for such an award; what actions he needed to undertake; and how VA would assist him in developing his claim. The January 2007 VCAA notice was issued to the Veteran prior to the May 2007 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the June 2008 statement of the case (SOC) and the supplemental statements of the case (SSOC) issued to the Veteran. VA has secured or attempted to secure all relevant documentation to the extent possible. The Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting in San Antonio, Texas. A hearing transcript was prepared and incorporated into the record. The Board has twice remanded the Veteran's appeal to the RO for additional action including affording the Veteran VA examinations to ascertain the nature and etiology of his lumbar spine disability. The Veteran was afforded December 2011 and May 2012 VA examinations. The examination reports are of record. The Board subsequently requested an opinion from a VHA medical expert. In January 2013, the requested VHA opinion was incorporated into the record. In March 2013, the Board determined that the VHA opinion was insufficient and requested that the VHA opinion be clarified. In March 2013, the requested amended VHA opinion was incorporated into the record and provided to the Veteran. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination reports and VHA opinion reflect that all relevant testing was performed. The examiners noted reviewing the record and provided the requested opinions. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103(2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). (CONTINUED ON NEXT PAGE) II. Service Connection The Veteran asserts that service connection for a lumbar spine disorder is warranted as the claimed disability was incurred as the result of inservice low back trauma and/or secondary to his service-connected left knee chondromalacia. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131; 38 C.F.R § 3.303(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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The diagnosed degenerative disc disease is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the January 2007 VA examiner noted MRI findings of mild age acquired arthritic changes, the assessment was degenerative disc disease and not arthritis. The Board finds that the diagnosed lumbar spine disability does not involve arthritis and the presumptive provisions of 3.309(a) are applicable. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for left knee chondromalacia, hearing loss, and tinnitus. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Veteran's service treatment records reflect that he was seen for low back complaints. An April 1978 treatment entry states that the Veteran complained of thoracic back pain "from back pack." He was observed to have a "mild bruise" over his shoulder." No diagnosis was advanced. Clinical documentation dated in December 1979 states that the Veteran complained of back pain after "lifting logs last P.M." Impressions of muscle strain, thoracic-lumbar strain, and lumbar paraspinal muscle strain were advanced. At his March 1980 physical examination for service separation, the Veteran denied experiencing "recurrent back pain" and was reported to exhibit a normal spine. At a January 2007 VA examination for compensation purposes, the Veteran reported that he had been treated for a back disorder since approximately 2005. The Veteran was noted to have been seen for back pain after lifting logs during active service. Contemporaneous X-ray studies of the lumbosacral spine revealed findings consistent with mild lumbar spine degenerative changes. An assessment of "age-acquired degenerative disc disease of the spine" was advanced. The examiner opined that: In respect of physical examination, the Veteran spent a very short time in the military service and had only one complaint of a back problem. He had all negative findings while he was in the military service. He did not seek any medical care for his back from 1979 when he was discharged from military until approximately two years ago. This is over 20 years. My opinion is that the military service did not contribute to any current condition concerning his back. My opinion is that he did not sustain any injury in the military service that would contribute to current medical problem concerning his lumbar spine. Also as noted above his MRI shows only mild age acquired arthritic changes. A March 2007 VA treatment record states that the Veteran complained of radiating "low back pain for many years." Impressions of "axial low back pain appears associated to lumbar facet syndrome" and "myofascial pain involving the lumbar paraspinals" were advanced. In an August 2007 written statement, the Veteran asserted that he injured his back while in the Army. In his July 2008 Appeal to the Board (VA Form 9), the Veteran clarified that: he had no orthopedic problems prior to service; injured his back while in the Army; did not subsequently reinjure his back; and his disability "escalated in '06 and'07." A June 2009 VA treatment record states that the Veteran presented a history of "low back pain since '79 while in the service with worsening of pain over the last 2-3 years." At the August 2011 hearing before the undersigned Veterans Law Judge, the Veteran testified that: he had injured his back lifting large logs during active service; was told by treating military medical personnel that he sustained a mild back strain; his back continued to be symptomatic during the remainder of active service and until the present time; and he was first treated for low back complaints after service in 2006. He stated that he had been told by a treating VA physician that his lumbar spine disorder may be related to his service-connected left knee chondromalacia. The Veteran clarified that he had not sought post-service treatment for his lumbar spine disorder due to financial concerns. The Veteran's spouse testified that she had married the Veteran in 1985. She stated the Veteran had experienced low back complaints for the last "five or six years." At a December 2011 VA examination for compensation purposes, the Veteran was diagnosed with lumbar spine degenerative disc disease. The examiner determined that the Veteran's lumbar spine degenerative disc disease was "less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition." The VA physician commented that: Review of medical literature failed to reveal studies that relate knee pathology causing back pathology. It is medical knowledge that severe gait abnormalities can produce back pain and pathology, however[,] that does not apply to this veteran. This veteran's gait[,] while assisted by crutches[,] is not severe enough to induce the claimed condition. Records review also indicate that the Veteran has previously claimed a back condition associated with lifting logs that was apparently denied. During the examination, the Veteran confirmed that problems did not start until after a spinal injection of some type. At a May 2012 VA examination for compensation purposes, the examiner determined that "the 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 physician opined that: Review of history regarding his back[,] it was claimed that his back problems originated from the spinal injection received for a knee procedure. He denied any prior back problems till the injection to his back. It is my opinion that this veteran's supposed knee condition did not aggravate or cause his present back complaints. The March 2013 amended VHA opinion noted that the record had been reviewed. The physician opined that: After conducting my review, I conclude (with probability of 50% or more) that the Veteran's chronic lumbar spine disability including degenerative disc disease did not originate during active service; is not related to his in-service back complaints; and is not related to or increased in severity beyond its natural progression due to the Veteran's left knee chondromalacia and other service-connected disabilities. *** Chronic back pain is a multi factorial problem with many contributing components. Gait abnormalities may play a role, but a large component is also likely to be the natural history of lumbar spine degenerative disease, which the Veteran is noted to have on [magnetic resonance imaging] scan. Additionally, substance abuse and mental health disorders often can greatly exacerbate chronic pain of all types, particularly low back pain. In summary, in review of the materials available to me, I can find no reason to alter or contradict the conclusions already drawn by multiple examiners. I cannot conclude that the Veteran's back pain is more than 50% likely to related to his military service or his other service-connected conditions. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. The Veteran sustained back injuries associated with carrying a backpack and lifting logs during active service. The report of the Veteran's March 1980 physical examination for service separation states that he denied experiencing recurrent back pain and was found to exhibit a normal spine on contemporaneous physical evaluation. The record does not reflect that a lumbar spine disorder was diagnosed or otherwise manifested for many years after service separation. The Veteran's current lumbar spine degenerative disc disease was first objectively manifested in 2005, some 25 years after service separation. No competent medical professional has attributed the onset of the Veteran's lumbar spine degenerative disc disease to either active service or his left knee chondromalacia and other service-connected disorders. Indeed, the VA examination reports and the VHA opinion expressly negate such relationships. The Veteran asserts that his lumbar spine disorder is related to his in-service back trauma associated with lifting a backpack and heavy logs and/or his service-connected left knee disorder. The Veteran's testimony and written statements as to having sustained back trauma after carrying a backpack and lifting heavy logs during active service are competent, credible, and supported by the service treatment records. However, the Board finds that the Veteran's lay statements that his lumbar spine disorder was precipitated by such trauma and/or his service-connected left knee chondromalacia do not constitute competent evidence as to etiology of his lumbar spine degenerative disc disease and its relationship to active service. The appellant is not competent to offer an opinion concerning either the etiology of his lumbar spine degenerative disc disease or its relationship to active service and his service-connected disabilities. The Veteran is not a physician and has not offered any form of medical qualification. The question of the etiology of such a disability is not amenable to observation alone and is too complex to be addressed by a layperson. Such a relationship is the subject of extensive training and research by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's lumbar spine degenerative disc disease has not been shown to be related to his in- service back trauma; to have other otherwise originated during active service; or to be related to his service-connected disorders. VA physicians have expressly concluded that the claimed disorder was not related to either active service or a service-connected disability. A preponderance of the evidence is against the Veteran's claim. Therefore, the Board concludes that service connection for a lumbar disorder to include degenerative disc disease and low back injury residuals is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a lumbar spine disorder to include degenerative disc disease and low back injury residuals is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs