Citation Nr: 1323048 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-07 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for low back disability, to include as secondary to service-connected residuals of right knee strain. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a September 2010 decision, the Board determined that new and material evidence had been received to reopen the claim for service connection for a low back disability. In September 2010, May 2011 and December 2012, the Board remanded the claim for further development. As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) Subsequent to the most recent supplemental statement of the case, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his Virtual VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. In his January 2013 statement and June 2013 informal hearing presentation, the Veteran and his representative raised the issues of entitlement to 1) service connection for depression, 2) a higher rating for service-connected right knee disabilities, and 3) individual unemployability due to service-connected disabilities. These claims have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence shows the Veteran's low back disability manifested many years after his discharge from service, and is not otherwise shown to be related to service or to an incident of service origin, including to his service-connected right knee disability. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service; nor was it proximately caused or aggravated by service-connected right knee disability. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify under the VCAA. A December 2007 letter provided notice, before the initial unfavorable decision in May 2008, regarding what information and evidence is needed to substantiate his claim for service connection, including on the basis of secondary service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), private medical records, Social Security Administration records, and VA treatment records have been obtained and considered. Pursuant to the December 2012 remand directives, current VA treatment records were associated with the claims file. Also pursuant to the 2012 Board remand, a letter was sent to the Veteran in January 2013 requesting the necessary authorization to obtain private treatment records from orthopedic surgeon Dr. A. dated from April 2010 to the present. The Veteran submitted an incomplete authorization form, stating that he had an unidentified orthopedic doctor but selected the option not to authorize the release of his records. He has not identified any additional outstanding records that VA should seek to obtain on his behalf. The Veteran was afforded VA spine examinations in November 2008 and November 2010, as well as an addendum opinion in August 2011. The Board found each of these insufficient for various reasons and remanded for addendum or new opinions. Pursuant to the December 2012 remand, the Veteran was provided with a VA medical opinion in January 2013. The Board finds that this medical opinion is adequate for evaluation purposes because the examiner conducted a thorough review of the Veteran's medical history and records, and the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. Thus, the record now contains a sound medical opinion upon which a decision may be based. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. D'Aries. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis In documents of record, the Veteran contends that his low back disability began in 2000, and was caused or aggravated by his service-connected right knee disability. Therefore, the Veteran asserts that service connection is warranted for his low back disability. 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). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Further, the United States Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). As this claim was filed after October 10, 2006, the amended regulation applies. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. 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, 581 F.3d at 1316; 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. 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, 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 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, 21 Vet. App. at 38; Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez, supra. 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, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran has a current low back disability. Private treatment records from Dr. A. show the first diagnosis of lumbar strain in April 2003 and describe an original injury in 2000. Over the course of treatment from 2003 through 2007, Dr. A. also diagnosed acute lumbar strain and chronic lumbar strain at various times. Based on x-rays and full physical examinations, both the November 2008 and November 2010 VA examiners diagnosed degenerative arthritis of the lumbar spine. The Board finds that the Veteran has a current low back disability. In order to grant direct service connection, there must be an in-service incurrence or aggravation of a disease or injury. There is no objective evidence of injury or disease of the low back during service. The STRs show normal spine and musculoskeletal evaluation at induction and separation. There is no mention of back injury, pain, complaint, or treatment in any of the STRs. The Veteran does not actually contend that his low back disability originated in service. He reported an onset of back pain in 2000, nearly 30 years after service. Finally, the 2013 VA examiner stated that it was difficult to associate the Veteran's current low back condition with his military service. As there is no evidence of an in-service incurrence or aggravation of a disease or injury to the low back, service connection cannot be granted on a direct basis. The Veteran contends that his low back disability was caused or aggravated by his service-connected right knee disability. The earliest mention of a low back disability in the claims file is a private treatment record from Dr. A. showing the first diagnosis of lumbar strain in April 2003. That record describes an original injury sustained in November 2000 while sorting and turning mail in the Veteran's occupation as a letter carrier. He had some improvement but it was exacerbated in April 2002 and September 2002. A May 2003 treatment note stated that the Veteran had low back symptoms as a result of repetitive lifting and twisting as a postman. In June 2003 Dr. A noted that the Veteran had sustained three low back injuries at work for the post office, the last being in September 2002. He had been placed on light duty status. In July 2003 Dr. A changed the diagnosis to chronic lumbar sprain/strain. Work restrictions were continued. The Veteran saw Dr. A monthly through November 2003. He returned in February 2004 after being assaulted at work and slammed against a wall, which resulted in several injuries, including multiple contusions and abrasions to the low back, and hyperreactive tenderness and limitations of the cervical and lumbar spine. In the Veteran's original claim for service connection dated August 2004, he reported that in January 2004 he was assaulted in his job as a letter carrier, resulting in back injury. Following the assault, he was treated intermittently for the lumbar strain by Dr. A. through October 2005, when he had severe back pain while lifting a plastic tray of mail. He had acute distress, was evaluated in the emergency room, and Dr. A diagnosed acute lumbar strain with extreme restriction of the lumbar spine in all planes. By November 2005 the diagnosis returned to contusion-strain of the lumbar spine. His treatment with Dr. A for that diagnosis continued through January 2007. In October 2007 the Veteran was struck by a car while crossing the street. He sustained multiple injuries and Dr. A diagnosed multiple contusions and a fracture in the left leg. Dr. A continued to treat him for these injuries through November 2007. No complaints or treatment of back pain was noted in any of the treatment notes relevant to the car accident. The Board notes that Dr. A was also the Veteran's orthopedic surgeon and primary treating physician for all of his knee symptoms. However, at no time in any of his treatment notes did Dr. A indicate or address a relationship between the Veteran's low back disability and his right knee disability. Beginning in September 2009 and continuing to the present, VA treatment records show notation of chronic low back pain and that the Veteran was being followed for this complaint by Dr. A. He was occasionally prescribed pain medication for back pain by VA primary care physicians. VA treatment records do not address a relationship between the Veteran's low back disability and his right knee disability. The record contains several medical opinions addressing secondary service connection. However, as set forth in the Board's prior decisions, the Board found that the November 2008, November 2010, and August 2011 opinions were insufficient; thus, they will not be discussed. The January 2013 VA medical opinion is based on a thorough record review. The examiner summarized the treatment records of Dr. A and noted that both the original 2004 claim and the treatment notes consistently show onset of back pain in November 2000. He highlighted the documented injuries in 2000 and 2004: "the available records indicate the onset of low back pain in 2000 from an injury...performing his duties as a postal worker. [It] was further exacerbated from an assault injury..., again, while he performed his duties as a postal worker." The VA examiner noted that Dr. A, the Veteran's orthopedic surgeon, made no reference to altered gait or knee symptoms in his clinical notes of low back treatment from April 2003 to February 2004. While he notes that both knees were then injured in the assault, the examiner explained that although "altered gait from lower extremity symptoms could contribute to low back symptoms, it would appear in this case that the back condition is related to specific documented injuries to the back during the Veteran's employment as a postal worker. It is difficult to associate the Veteran's current low back condition to his service-connected knee injury." Thus, the examiner opined that the Veteran's low back disability is less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. The Board finds that the examiner's opinion is based on adequate examination and provides a clear conclusion supported by specific data in the record, with a reasoned medical explanation connecting the two. Stefl; Nieves-Rodriguez. The Board finds that it is probative, as it was predicated upon a thorough, accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes that the Veteran has contended on his own behalf that his low back disability is related to his service-connected right knee disability. Lay evidence may be competent to establish medical etiology or nexus. Davidson. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran is competent to describe the subjective symptom of low back pain. Layno. In his lay statements he contends that his knee problem caused and affected his back pain. In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's low back pain and service-connected right knee disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, he does not possess the medical knowledge to attribute his low back pain to his service-connected right knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the etiological relationship between lumbar strain/degenerative arthritis and residuals of right knee strain fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Here, while the Veteran is competent to describe his low back symptoms, the Board accords his statements regarding the etiology of the claimed disorder little probative value as he is not competent to opine on such a complex medical question. In contrast, the 2013 VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's history, current medical condition, treatment records, and other causes for his symptomatology. Therefore, the Board accords greater probative weight to the 2013 VA examiner's opinion. Based on the foregoing, there is no probative evidence that the Veteran's service-connected right knee disability caused or aggravated his current low back disability. Accordingly, he is not entitled to service connection on a secondary basis. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for cervical spine disability. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for low back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs