Citation Nr: 1323460	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  04-37 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a low back (lumbar spine) disorder.

2.  Entitlement to service connection for a cervical spine disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from August 1967 to August 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in support of these claims during a hearing at the RO in November 2008 before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.

The Board since has remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC, on four occasions - initially in March 2009, but also in April 2010, October 2011 and November 2012.


FINDINGS OF FACT

1.  There is clear and unmistakable evidence indicating Veteran's low back disorder preexisted his service, and that it did not increase in severity during his service beyond its natural progression.

2.  To the extent his cervical spine disorder is an extension of his low back disorder, it clearly and unmistakably preexisted his service and did not increase in severity during his service beyond its natural progression.

3.  To the extent his cervical spine disorder is otherwise not an extension of his low back disorder, it nonetheless is unrelated to his service.



CONCLUSION OF LAW

The Veteran's low back disorder was not incurred in or aggravated by his service and may not be presumed to have been, nor was his cervical spine disorder and it is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

A.  Notice

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, this notice should be provided prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error in the provision of the notice can be "cured" by providing all necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO provided the Veteran VCAA notice on these claims by way of letters dated in September 2004, January 2005, March 2006, May 2009, October 2011 and November 2012.  Most of the letters were not sent in the preferred sequence, having been provided after, rather than before, the initial adjudication of these claims.  But the RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claims in a March 2013 SSOC.  Mayfield v. Nicholson, 499 F.3d at 1317.

These letters satisfy the content requirements noted above.  They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so.  They include all necessary information on disability ratings and effective dates in the event service connection is granted.  They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing.  They indicate that the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of this and any other pertinent evidence. 

VA provided the Veteran further notice in November 2008, during his hearing at the RO before the undersigned VLJ of the Board (Travel Board hearing).  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must satisfy two duties to comply this VA regulation, consisting of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, the presiding VLJ fully explained the issues on appeal, including the various ways the Veteran could establish his entitlement to the claimed benefits.  The VLJ discussed proving such entitlement on direct and aggravation bases and noted the law that applies in cases in which the claimed disability is congenital or developmental in nature.  The VLJ also identified shortcomings in the various evidence already of record, thereby suggesting to the Veteran that he still needed to submit certain evidence to substantiate his claims.  

In remands issued in March 2009, April 2010, October 2011 and November 2012, the Board elaborated on the type of evidence still needed to substantiate the claims by explicitly asking for it.  The Board explained on four occasions that the medical opinions of record were inadequate to allow for a proper legal analysis of the Veteran's claims.  It comprehensively discussed the bases for finding the opinions inadequate.


The Veteran resultantly has received all essential notice, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004).  Neither he nor his representative asserts that VA failed to comply with the VCAA's notice provisions or the requirements set forth in Bryant.

B.  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

The RO in this case satisfied its duty to assist the Veteran in the development of his claims by trying to secure and associate with the claims file all documents he identified as being pertinent to his claims, including his service and post-service treatment records.  Unfortunately with regard to records of his treatment by Dr. Ratcliff, the RO was unsuccessful.  

The RO also afforded the Veteran VA examinations, during which examiners discussed the etiology of the Veteran's low back and cervical spine disabilities.  There are other medical opinions of record, as well, offered in support of these claims.  The Board continued to remand the claims back to the RO until the admitted deficiencies in the opinions had been rectified.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance).  But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, neither the Veteran nor his representative asserts there are any other outstanding records needing to be obtained in support of these claims or that the most recent examination reports and opinions are inadequate. 

Given the development that has occurred, including as mentioned four remands, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).


In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he has submitted or which VA has obtained on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

The Veteran seeks service connection for low back and cervical spine disabilities on the basis that these disabilities, even though perhaps preexisting his service, nevertheless were aggravated during or as a result of his service.  According to written statements the Veteran and his representative submitted during the course of this appeal, including in April 2001, December 2002, March 2004, June 2005, August 2006, October 2009, September 2011, October 2012 and April 2013, and his November 2008 hearing testimony, the Veteran's spinal disease, which has progressed in severity and spread to most of the spine, including the cervical and lumbar areas, was noted on induction examination, but, after being asked to bend over and touch his toes, dismissed by the examining officer who said, "forget it, you're going to Vietnam like everybody else."

Allegedly, the Veteran's spinal problems date back to 1953 and his spinal treatment dates back to 1958 or 1959.  He reports that, just prior to treatment, he was playing the back court in tennis and went into the wire fence while swinging, hurting his back; a year later, while playing center fielder in baseball, he went down after throwing a ball to home plate.  The latter injury purportedly necessitated team members carrying him off the field.  Subsequently, his mother called a neighbor, a registered nurse (RN), who referred him to an orthopedic surgeon.  The Veteran asserts that, there, he had X-rays that showed a congenital weakness in his bone structure, which he later learned was spondylosis, that the doctor said would predispose him to back trouble.

The Veteran contends that, early on, doctors diagnosed him with L4-5 spondylolysis with associated spondylolisthesis and, thereafter, subsequent to 1958 and 1959, he experienced low back pain.  Such pain allegedly manifested more frequently in the 1960s, but not so intensely as to interfere with medical school.  He contends that, in 1967, upon completion of his internship, he was conscripted into service and then assigned to a medical battalion in a combat area despite having known spinal diagnoses.  

He claims that, while in Vietnam, he performed duties, including lifting and carrying bodies and supplies and sleeping in fortified, cramped underground bunkers on air mattresses, which caused back pain.  He asserts that he did not seek treatment for such pain as he was more concerned with caring for other soldiers serving in the war zone and, being a physician, knew, at that time, that he had a non-surgical problem.  This pain nonetheless progressively worsened during service and after discharge, when it began to affect his cervical spine.  

The Veteran contends that, during his subsequent stateside tour in Washington, he sought a position in the spinal orthopedics clinic so that he could learn more about his spinal conditions.  Allegedly, the Chief of the department advised the Veteran to avoid surgery.  The Veteran further contends that, after discharge in 1969, he went into private practice, where he suffered significantly worse back pain.  He further asserts that this pain demanded radiographic tracking beginning in 1976, but was not so bad as to make him a candidate for surgery.  The Veteran asserts that he began regularly seeing an orthopedist in the 1970s and a neurosurgeon in 1981 and underwent the first of eight spinal procedures in 1993.  He claims that multiple medical professionals have told him that he has had a continuum of spinal problems, all part of the same condition, which originated in his lumbar spine and then extended up to his thoracic and cervical regions. 

He points out that he has submitted favorable opinions in support of his claims from some of the best spinal physicians in the world, including internationally reknown Pasquale X. Montesano, M.D., who authored a textbook on spinal orthopedic surgery.  

According to the Veteran's representative, the Veteran, as a physician, has been and is in a position to self treat his back problems competently, receive informal treatment from his fellow physicians, and provide a competent and credible medical opinion overcoming any lack of documentation.  

The Veteran has submitted lay statements in support of his claim, including from 
A. N., his neighbor/retired RN, J. H., a sister of his high school best friend, D. N., a neighborhood friend, and J. M., a high school classmate.  These statements confirm that the Veteran sustained two back injuries in the manner and time frame alleged, after which he experienced pain, had to stop playing sports and had difficulty throwing a football, including through 1960 or 1961.  They indicate that, after the injuries, the Veteran or his mother told these individuals that, due to the injury, the Veteran would have long-term back problems.  They include these individuals' observations that the Veteran has since continued to suffer from serious and painful spinal problems and has undergone many surgeries.  According to A. N., the doctor who treated the Veteran during childhood is deceased.

Considering these lay statements, both written and oral, in conjunction with all other pertinent evidence in the claims file and applicable law and regulations, the Board finds that the preponderance of the evidence is against grants for service connection for low back and cervical spine disabilities.  Clear and unmistakable evidence demonstrates that the Veteran's low back disability preexisted active service and did not increase in severity therein.  The evidence conflicts as to whether the Veteran's cervical spine disability is an extension of his low back disability, which, if it is, as part of the low back disability, clearly and unmistakably preexisted service and did not increase therein.  If it is not, it is unrelated to the Veteran's active service.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

There is a distinction under the law between a congenital or developmental "disease" and a congenital or developmental "defect" for service connection purposes.  Congenital and developmental "defects" are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9 (2012).  However, service connection may be granted for "diseases" (but not "defects") of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)); 38 C.F.R. §§ 3.303(c), 3.306.  The mere fact that a condition is the result of a congenital cause does not necessarily mean that the condition, itself, manifested before service or that it was not aggravated by service.  The presumption of soundness applies if a Veteran's congenital condition is not noted at entry into service.  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing to Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) for the proposition that the only prerequisite for the application of the presumption of soundness is that the Veteran's entry examination is free and clear of any noted disease or disabilities).  It thus appears that service connection may be established for a congenital "disease" by finding that it was incurred in or aggravated by service.  

Although service connection cannot be granted for a congenital or developmental "defect", such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90.  But such disorders require more than an increase in severity during service in order to warrant a grant of service connection.  The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during service that resulted in increased disability.  Id. 

Thus, in these situations, to allow for proper legal analysis of a Veteran's claim as it pertains to an alleged disability, medical clarification may be necessary on the issue of whether the Veteran's condition is a congenital or developmental "disease" or "defect."  See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).  If the claimed disorder is a "disease", an opinion may be required as to whether it was as likely as not aggravated by his period of active service beyond its natural progression.  If instead the claimed disorder is a "defect", an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. 

In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

"Satisfactory evidence" is credible evidence.  Collette v. Brown, 82 F.3d 389, 392 (1996).  Such evidence may be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not however establish a presumption of service connection in combat cases but rather merely ease the combat Veteran's burden of demonstrating the occurrence of some relevant incident (event, injury or disease) in service to which a current disability may be connected.  Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995).  

The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the combat injury in service.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  But to establish entitlement to service connection, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).

Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a), (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though, as will be explained, not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).

When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. 

Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible).  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  

So in certain instances lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, 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 Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly 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 (meaning both competent and credible), 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 when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

A.  Low Back Disability

Post-service medical documents, including VA and private treatment records dated since the Veteran filed his claim, letters from private physicians, an opinion of a VA surgeon, and reports of VA examinations, all tend to establish the Veteran currently has a low back disability, variously diagnosed, most recently as degenerative disc disease of the lumbar spine, L4 spondylosis and pseudoarthrosis, status post decompression and fusion, L4-5 spondylolisthesis, spondylolysis, and lumbar radiculopathy.  These current low back disabilities are both non-congenital and congenital in nature.  According to a May 2010 VA examiner, the spondylolysis (defined by a January 2012 VA examiner as fracture of the pars portion of the vertebrae) and spondylolisthesis (defined by the same VA examiner as forward shifting of the vertebrae) are congenital defects.

So resolution of this appeal turns on whether a non-congenital low back disability, however diagnosed, is directly related or attributable to the Veteran's military service (initially manifested sometime between August 1967 to August 1969), or if not, whether it preexisted service and increased in severity therein, or whether, in the case of the congenital defects, during service, the defects were subject to a superimposed disease or injury that resulted in increased or additional disability, that is, apart from the congenital defect.

As the Veteran does not claim, and the evidence does not otherwise suggest, that he had arthritis in the lumbar segment of his spine within one year of his discharge from service or that his low back disability is the result of a service-connected disability, the Board need not consider whether the low back disability is presumptively related to his military service (meaning initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year), or secondarily related to his service (meaning caused or aggravated by) any or a combination of his service-connected disabilities.  

1.  Direct Basis

On pre-induction examination in August 1966, the Veteran reported that he had congenital weakness of the lumbar intervertebral disc, which had herniated in 1958.  The examiner recorded a normal clinical evaluation of the Veteran's spine and, in the summary section of his report, documented the Veteran had had a herniated vertebral disc in 1958 with occasional spasm and back pain since, but no disability.  Thereafter, but during the remainder of active service, the Veteran did not express any back complaints and no medical professional diagnosed a back disability.  On separation examination conducted in July 1969, he wrote that he had not had any swollen or painful joints or recurrent back pain.  The examiner again recorded a normal clinical evaluation of the Veteran's spine.

Following discharge in August 1969 through the 1970s, the Veteran sought treatment for certain medical conditions, but did not report any back problems.  

In 1973, while hospitalized for an unrelated surgery, he reported a medical history that included childhood problems affecting his heart and shoulders.  He did not mention his low back.

In January 1981, he sought neurological treatment for neck pain and, in the course of the neck evaluation, discussed his low back.  He reported that he had been playing sports over 20 years earlier when he had hurt his low back, had developed low back pain, and had learned he had L4-5 spondylolisthesis.  He indicated that, during the last 20 years, he had been playing tennis and other sports with persistent, dull, aching low back pain, which he had gradually learned to accept.  Testing confirmed L4-5 spondylolisthesis with L4 spondylolysis.  

In October 1983, the Veteran presented to a hospital with knee complaints.  He underwent a knee evaluation, during which he claimed excellent general health.  The examiner noted the Veteran was very athletic and quite active.  

In June 1984, the Veteran again saw his neurologist and elaborated on his previously reported history of low back pain.  He described three low back injuries that preexisted service, including the previously described tennis and baseball injuries.  He reported that, from 1959 to 1975, he was symptom free.  Allegedly, in 1975, he gave up tennis due to an aching low back and from that point in time until 1983, he experienced low back pain with certain positions.  He noted that in 1977, he worked for four weeks as a ship's surgeon on an Italian liner, at which time the ship's doctor injected his back with corticosteroid.  He reported that in, early 1984, his low back discomfort increased.

By the 1990s, the Veteran was receiving treatment for long-standing low back pain secondary to, in part, L4-5 spondylolisthesis with L4 spondylolysis.  In June 1993, his low back disability necessitated surgery, a posterior lumbar decompression, 
L4-5 by laminectomy, facetectomy, pediclectomy and discectomy, a L3-4 laminotomy, a medical facetectomy, and a distraction posterior lumbar interbody fusion, L4-5.  A history taken prior to surgery indicates that, in 1953 at age 12, the Veteran first experienced low back pain after jumping over a fence.  He later experienced low back pain as a college student in 1959, which caused him trouble throwing a football.  He then learned he had L4-5 spondylolisthesis and next experienced low back pain in 1985. 

The surgery was unsuccessful and within the year, the Veteran began experiencing radiating low back pain to the lower extremities and numbness in the left lower extremity.  In 1996, a physician noted that the Veteran had significant problems, including pain in his back, neck, legs and shoulders.  Since then, the Veteran has received regular treatment for his lumbar spine disability.  During treatment visits, however, no medical professional related the lumbar spine disability to the Veteran's active service, or indicated that it initially manifested during active service.   

During the course of this appeal, the Veteran provided insight as to the onset of his low back pain, but never asserted that it initially manifested during active service.  Rather, in written statements and during his hearing, he claimed that he had low back pain in service, for which he did not seek treatment, but that such pain initially manifested prior to service.  There is thus no evidence, including in the medical documents or per the Veteran, directly relating his low back disability to his active service.  

In June 2010, a VA examiner addressed this matter but his opinion in this regard is not probative.  He noted that, in addition to not being able to find a preexisting low back disability, given the lack of documentation of specific in-service injuries to the back and medical care sought or carried out for such injuries, the question of whether or not any disability now afflicting the Veteran's lumbosacral spine is attributable to military service cannot be resolved without resort to mere speculation.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or conclusive opinion, but a bald statement that it would be speculative to render an opinion on etiology or diagnosis is fraught with ambiguity).


In light of the foregoing findings, the Board concludes the Veteran's low back disability was not incurred during his active military service.

2.  Aggravation Basis

a.  Preexistence

A Veteran is presumed to have been in sound condition when examined, accepted and enrolled into service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).

According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports.  A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception.  38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). 

If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability on a direct-incurrence basis, only instead a claim of service-connected aggravation of the disability.  But in this circumstance the provisions of 38 C.F.R. § 1153 apply and he, not VA, has the burden of establishing aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (holding that VA, rather than the claimant, bears the burden of proving that a disability preexisted service and was not aggravated therein); 70 Fed. Reg. 23,027, 23,029 (May 4, 2005) (applies to claims pending on or filed after May 4, 2005).

As previously indicated, the Veteran had active service from August 1967 to August 1969.  On pre-induction examination conducted in August 1966, he reported that he had congenital weakness of the lumbar intervertebral disc, which herniated in 1958, a history the examiner confirmed.  The examiner did not, however, note any associated low back disability on examination.  The confirmed history, alone, is therefore insufficient to constitute a notation of a low back disability on induction.  

This notwithstanding, the probative evidence of record, including an August 2001 letter from Jennifer L. Osborn, M.D., an August 2001 letter from Stephen E. Cox, M.D., an April 2002 letter from Dr. Montesano (the Veteran's orthopedic spinal surgeon), a January 2003 letter from Elvert F. Nelson, M.D. (another of the Veteran's orthopedic spinal surgeon), a January 2003 letter from Joe T. Hartzog, M.D, a report of a VA examination conducted in January 2012, a March 2013 addendum opinion of that VA examiner, the medical histories the Veteran, a doctor, reported prior to filing his claims, and his written statements, clearly and unmistakably demonstrates that a low back disability initially manifested prior to, or preexisted, the Veteran's active service.  

According to Dr. Osborn's August 2001 letter, the Veteran had symptomatic L4-5 spondylolysis and spondylolisthesis prior to service, but was accepted into service despite this history.  According to Dr. Cox's August 2001 letter, the Veteran was conscripted into the military with known, symptomatic spinal disease involving spondylolysis of L4-5 and associated spondylolisthesis.  

According to Dr. Montesano's April 2002 letter, when inducted, the Veteran's service department knew he had low back problems dating back to 1953 and, during and after service, the Veteran experienced several superimposed exacerbations (trauma) of those problems.  

According to Dr. Nelson's January 2003 letter, the Veteran's spinal condition, noted as an L4-5 spondylolysis with spondylolisthesis, dates back to 1958 or 1959, has been an ongoing problem for him, and has manifested as pain and radiation on a continuum with extension from the lumbar to the thoracic and cervical areas.  

According to Dr. Hartzog's January 2003 letter, the Veteran has chronic pain syndrome as a consequence of a spinal axis disorder, which initially manifested in the 1950s, prior to his induction into the service.  

In January 2012, a VA examiner found that the Veteran's back disability preexisted service, but concluded that the pre-service back disorder was caused by trauma/injuries to the back, not any congenital defect or disease.  She explained that the causes of spondylolysis and spondylolisthesis are congenital, dysplastic, degenerative, traumatic and pathologic and that, even though an individual may be born with a hereditary thin vertebral bone that makes him vulnerable to these conditions, in the Veteran's case, there is no evidence to suggest that these congenital problems caused his pre-military back condition.  In an addendum opinion dated March 2013, the VA examiner reiterated her opinion that the Veteran's low back disability preexisted service. 

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  The Board may favor one over another provided each opinion includes adequate statements of reasons or bases.  Wray v. Brown, 7 Vet. App. 488 (1995).  

The Board finds the previously noted evidence probative because it is offered by individuals trained in medicine, all of whom except the VA examiner treated the Veteran for years, based on an accurate review of the clinical evidence of record, and supported by rationale.  Although this evidence conflicts as to whether, on induction, that Veteran's preexisting back disability was congenital in nature with superimposed trauma or non-congenital, the medical professionals unanimously agree that this case involves some sort of pre-existing low back disability.  Their opinions in this regard constitute clear and unmistakable evidence, unchallenged even by the Veteran, too a medical professional.

On the matter of preexistence, there is also unfavorable evidence of record, including a September 2002 opinion of a VA general surgeon and a report of VA examination conducted in May 2010.  However, the Board finds this evidence not probative.  The VA general surgeon indicates that history of a congenital defect without medical evidence, including physical or X-ray findings, confirming its presence is insufficient to establish a preexisting congenital defect.  This opinion, however, is not probative as it contemplates the service treatment records only.  It is not based on a review of the entire claims file, which includes multiple post-service treatment records, including physical findings and test results, confirming the presence of congenital abnormalities prior to service.  The VA examiner's opinion is not probative because, as the Board indicated in its October 2011 remand, based on time constraints, the examiner did not review the Veteran's extensive file and, despite promising to do so, did not provide an addendum opinion based on any subsequent review.  His opinion is admittedly based on an incomplete record (was not able to locate original induction physical examination), not on all relevant evidence in the claims file, and thus is neither based on the proper factual foundation and predicate, nor fully informed.  

b.  In-Service Worsening 

A preexisting disease will be considered to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 


Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b) (2012).  A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches.  Cotant v. Principi, 17 Vet. App. 116 (2003).  

Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  The presumption of aggravation applies only when pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).

As previously indicated, the Veteran in this case claims that his back pain became progressively worse during his service, but he admits to not actually seeking any treatment for it, owing to the fact that he was much more concerned with caring for other soldiers and their welfare and since he himself was a doctor and all but resigned to the fact that his back pain would persist, regardless, so no matter what he did to try and alleviate it.  Indeed, his STRs bear this out inasmuch as they include no mention of relevant back-related complaints or treatment that might tend to establish or corroborate an increase in severity of his back disability.

According to private post-service treatment records, after discharge, in the 1980s, the Veteran began complaining of low back pain and, as alleged, underwent his first spinal surgery in 1993 - a posterior lumbar decompression, L4-5 by laminectomy, facetectomy, pediclectomy, discectomy, L3-4 laminotomy, medial facetectomy, and distraction posterior lumbar interbody fusion, L4-5.  On post-surgical discharge examination, the surgeon noted a longstanding history of pain with myelographic and x-ray evidence of deformities, including spondylolisthesis at L4-5.  Since then, he has continued to receive extensive treatment for a low back disability. 

Multiple medical professionals have addressed the matter of in-service aggravation and their opinions shed light on the question of whether the untreated, reportedly worsening in-service back pain constitutes aggravation of a preexisting non-congenital back disability or an increase in disability of a congenital defect superimposed by injury.

In August 2001, Dr. Osborn submitted a statement indicating that there is no doubt that the Veteran's duty, including a combat tour in Vietnam from 1967 to 1968, aggravated his spinal condition.  She pointed out that the lifting of bodies, constant bending, sleeping in compact quarters and underground bunkers and crawling to these bunkers during repeated rocket/mortar attacks, which his position necessitated and his survival demanded, had a detrimental effect on his already diseased spine.  

In August 2001, Dr. Cox also submitted a statement reiterating much of what Dr. Osborn wrote.  He indicated that there is little doubt that the Veteran's military tour adversely affected his spine.  He based this opinion on findings that the Veteran was put through basic training procedures and sent to a combat zone where his symptoms worsened, that the symptoms continued to worsen during the remainder of his military career and post discharge, and that, initially after discharge, those symptoms, affecting both the lumbar and cervical areas, necessitated non-surgical treatment and subsequently, in 1993, 1995, 1997 and 1999, required five surgeries.  

In April 2002, Dr. Montesano wrote that the Veteran had several in-service and post-service superimposed exacerbations (trauma) of his spinal problems while practicing as a physician.  He further wrote that, the Veteran has "stated to me that he had a known history of an L4-5 spondylolysis and spondylolisthesis....[and] had continuous and progressive symptoms during his military tour." 


In September 2002, the VA general surgeon noted that, because there is no confirmation via physical or x-ray findings of a preexisting congenital service medical records and service medical records are negative for any medical complaints of back pain, there is no valid basis for service connection for a back disability by aggravation.

In January 2003, Dr. Hartzog found that the Veteran's low back pain began sometime in the late 1950s, persisted during active duty, including in Vietnam, and necessitated self-care until after discharge, when he finally sought back treatment.  According to Dr. Hartzog it required surgery in 1993.  Dr. Hartzog explained that the Veteran was interested in sharing this information with VA and that it was the Veteran's position that his back disability was aggravated during service.  Dr. Hartzog wrote that, apparently, the ongoing problems with the Veteran's low back worsened during service.

In January 2003, Dr. Nelson wrote that there is no doubt that the Veteran's preexisting spinal condition was exacerbated by his imprudent induction into the 
U. S. Army and deployment to Vietnam with a combat unit.  Dr. Nelson questions why the service department, which was aware of the Veteran's spinal condition on induction, would select the Veteran into the system.  He calls the service department's decision in this regard ill-advised and questionable.  He points out that, post-military, the Veteran's life has been greatly impacted by his spinal condition, a condition that has rendered him totally disabled since the 1990s.

In January 2012 and March 2013 written opinions, the VA examiner concluded that the preexisting low back disability was not aggravated beyond its natural progression by an in-service injury, event of illness.  She based this conclusion on the following findings:  (1) The Veteran had preexisting low back pain secondary to trauma/injury, not a congenital or developmental condition, when entering service; (2) There is no evidence of in-service back complaints; (3) The Veteran reported continuity of back pain after discharge, but there is no evidence of further evaluation, treatment for or follow-up of back problems for several years; (4) The first documented medical visit for back problems is in 1975, six years post discharge; and (5) There is documentation of record indicating that the Veteran was pain free until 1975, which is indicative of no real worsening of back pain.  

For the reasons noted in the previous section of this decision, the Board accords the VA general surgeon's opinion no evidentiary weight.  The Board also accords Dr. Hartzog's opinion less evidentiary weight as it is merely a reiteration of the Veteran's position on aggravation and couched somewhat in speculative language ("apparently").  There are precedent cases discussing the lesser probative value of opinions like this that are equivocal, in various contexts, which essentially state that it is possible that what posited is true.  See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); Winsett v. West, 11 Vet. App. 420, 424 (1998).  See, too, Bloom v. West, 13 Vet. App. 185, 18 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  Medical evidence that is speculative, general or inconclusive in nature usually cannot be used to support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993).  See also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); and Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  Indeed, saying something "may" be true is akin to just as well saying it "may not" be true and, therefore, insufficient reason to grant service connection.  See Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative).

But having said all of that, consider as well that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  That is to say, use of cautious language does not always express inconclusiveness in a doctor's opinion.  Rather, the opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words.  See Lee v. Brown, 10 Vet. App. 336, 338 (1997).


Here, the Board accords the opinions of Drs. Osborn, Cox, Montesano and Nelson some evidentiary weight as they are supported by rationale, including that, during service, the Veteran fulfilled certain physically demanding duties and experienced back pain as a result, and years of treatment of the Veteran.  There is no "treating physician rule", however, requiring the Board to give additional evidentiary weight to the opinion of a physician that has treated the Veteran.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993).

Still, given the circumstances, conditions and hardships the Veteran likely experienced in the combat zone, it seems reasonable to assume that, in his capacity as a medical officer in a combat zone, he lifted bodies, bent, crawled and slept in compact quarters and underground bunkers.  It also seems reasonable to assume that he experienced back pain as a result of these duties.  Unfortunately, however, given other evidence in the claims file, the Board finds his reports of in-service back pain not entirely credible.  As such, these opinions, which are based at least partly on his self-reported history of back problems in service, lack the proper factual foundation and predicate.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

More specifically, in November 1973 the Veteran sought treatment for hemorrhoids and reported a history of medical problems affecting various parts of his body, including his shoulder.  He refrained from mentioning his back.  In January 1981, he presented for a neurological consultation for neck pain.  During that consultation he discussed his neck but also reported a 20-year history (from approximately 1961, prior to service) of persistent low back pain when playing certain sports, pain that he had learned to live with.  In September 1985, when seeing the same neurologist, he elaborated on this history, noted that the back pain had begun in 1959, described his multiple pre-service back injuries, indicated that he was symptom free between 1959 and 1975, when his aching low back caused him to give up tennis, and also indicated that he continued to experience low back pain from 1975 to 1983, after which the pain peaked.  So he has given somewhat differing accounts of just how long and to what extent he has experienced back pain.

As a physician, he understands more than most - certainly more than a lay person - the importance of reporting a medical history accurately to obtain proper care.  Indeed, courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to in turn receive the best or most appropriate medical care.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

It is clear that, in September 1985, prior to filing a claim for compensation for a back disability, the Veteran took some time to offer a detailed account of his back pain.  Given that he did so to receive adequate care, the Board finds that reported history quite probative, more probative than his more recently reported medical history, provided in support of a claim for compensation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (Contemporaneous medical findings may be given more probative weight).

The Board accords the greatest evidentiary weight to the VA examiner's January 2012 and March 2013 opinions as they are based on a complete review of the claims file, a reference to critical medical records dated between the Veteran's discharge from service and his 1980s back treatment, and most importantly supported by explanatory rationale, which is where most of the probative value of an opinion is derived.  In Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two."  
Neives-Rodriguez, at 301.

According to the holdings in Neives-Rodriguez, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  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.  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.

A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation.  Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).


Based primarily on the January 2012 and March 2013 opinions, but also on the Veteran's September 1985 reported medical history and his conflicting more recently reported medical history, the absence of evidence of any in-service back findings or complaints, and the significant passage of time that occurred before he sought back treatment after service, the Board finds that his preexisting low back disability, whether diagnosed as a non-congenital condition or a congenital defect superimposed by injury, did not increase in severity during his service beyond its natural progression.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, then, for the reasons and bases discussed, the Board concludes that the Veteran's low back disability was not aggravated by his service.

B.  Cervical Spine Disability

The Veteran claims that his back disability began affecting his cervical area after discharge, a claim the medical record substantiates.  There is conflicting evidence of record, however, regarding whether his cervical symptoms represent an extension of his low back disability, discussed above, or whether they are attributable to a separate cervical spine disability.  Multiple doctors believe them to be part of a continuum of spinal pathology, which initially manifested prior to service as lumbar pain and eventually began affecting the Veteran's adjacent thoracic and cervical areas.  

This matter need not be pursued further because, in either case, the outcome is the same.  If the Veteran's cervical spine symptoms represent an extension of his low back disability, the previous analysis applies and the claim must be denied on the basis that a preexisting spinal disability was not aggravated in service.  If, on the other hand, his cervical spine symptoms are attributable to a separate cervical spine disability, the claim still must be denied.  As explained below, a preponderance of the evidence is against a grant of service connection for such a disability on a direct basis.  

Post-service medical documents, including VA and private treatment records dated since the Veteran filed his claim, letters from private physicians, an opinion of a VA surgeon, and reports of VA examinations, establish that the Veteran currently has a cervical spine disability, variously diagnosed, most recently as degenerative disc disease of the cervical spine, cervical L4 spondylosis, status post multiple laminectomies, discectomies and fusions, and cervical radiculopathy.  The question is whether this cervical spine disability is directly related or attributable to the Veteran's military service.  

Again, as the Veteran has not been diagnosed with arthritis of the cervical spine and does not contend that his cervical spine disability is related to, or aggravated by, a service-connected disability, the Board need not consider whether the cervical spine disability is presumptively related to the Veteran's military service or secondarily related to a service-connected disability.  

As previously indicated, prior to and during service, the Veteran did not mention his neck and no medical professional noted any cervical spine abnormalities.  On separation examination conducted in July 1969, the Veteran wrote that he had not had any swollen or painful joints or recurrent back pain.  The examiner recorded normal clinical evaluations of the Veteran's neck and spine.

According to post-service private treatment records, in August 1980, the Veteran began to experience neck pain.  This pain necessitated visits to a neurologist in January 1981 and August 1985.  Thereafter, until 1995, he remained asymptomatic with regard to his neck.  In 1995, however, testing revealed herniated discs with stenosis and multi-level disc disease.  

In May 1995, the Veteran underwent an anterior cervical discectomy at C3-4, C4-5, C5-6 and C6-7 with decompression at C4, C5, C6 and C7, and a cervical fusion at C4-5, C5-6 and C6-7 with allogenic bone.  He recovered and then, not long after the surgery, in 1996, the neck pain recurred and doctors confirmed that the Veteran had significant problems, including pain in his neck.  Initially, doctors administered a series of cervical epidural injections with minimal resolution of symptoms.  Thereafter, testing revealed suspected pseudoarthrosis at multiple levels.  

Since then, the Veteran has undergone additional surgeries, including two in 1999 for his cervical spine disability - an anterior cervical fusion, C3-4, with discectomy and foraminotomy, left iliac crest bone graft and an anterior instrumentation with anterior cervical spine locking plate, and received regular treatment for his cervical spine disability.  During treatment visits, however, no medical professional related the cervical spine disability to the Veteran's active service, or indicated that it initially manifested during active service.   

Multiple medical professionals discussed such a relationship.  In August 2001, Dr. Osborn noted that the Veteran's cervical spine symptoms appeared soon after his discharge in 1969 and progressed steadily thereafter, requiring multiple surgeries.  She considered his cervical spine symptoms as part of his overall spinal disability and did not independently relate the cervical spine disability to the Veteran's active service.  

Dr. Osborn, who is not a specialist in psychology or psychiatry, noted that the Veteran's combat-related PTSD had caused chronic neck/shoulder stress that undoubtedly had a negative impact on the Veteran's cervical discs.  Dr. Cox, also not specialized in psychology or psychiatry, noted cervical spine issues since 1993 and also opined that the Veteran's PTSD played a role years in stressing the Veteran's spine, especially his neck and shoulder areas.

This theory was discussed by a psychologist in November 2008.  Contrary to Drs. Osborn and Cox, he found that the Veteran's cervical spine surgeries produced a psychiatric disability (major depressive disorder), rather than the psychiatric disability causing the cervical spine disability.  Given that he is specialized in this field, the Board accords his opinion greater weight.

In September 2002, the VA surgeon ruled out a relationship between the Veteran's neck disability and his service on the basis that there was no valid basis for service connection by aggravation.  He too considered the cervical spine symptoms part of the overall spine disability.  Dr. Montesano did the same, noting cervical procedures beginning in 1993.  He indicated that, in 1999, the Veteran had further cervical procedures.  He expressed his belief that the Veteran's case is a classic demonstration of the negative impact of superimposing the traumas of military duty on an individual with known symptomatic spinal disorders.  He mentioned no cervical spine trauma prior to 1993.

A May 2010 VA examiner noted that there was no evidence that the Veteran sought care for his neck during service or for many years after service.  He further noted that lumbar and cervical spine degenerative disease often coexist in the same patient, but that in the Veteran's case, his low back problems did not cause his neck problems.  He wrote that, in addition to not being able to find a preexisting low back disability, given the lack of documentation of specific in-service injuries to the neck and medical care sought or carried out for such injuries, the question of whether or not any disability now afflicting the Veteran's cervical spine is attributable to military service cannot be resolved without resort to mere speculation.  Again, under Jones v. Shinseki, 23 Vet. App. at 390, this statement is not probative.

During the course of this appeal, the Veteran provided insight as to the onset of his cervical spine pain, but never asserted that it initially manifested during active service or is otherwise related thereto.  Rather, in written statements and during his hearing, he claimed that he his cervical spine symptoms are part of his overall spinal condition.  Accordingly, there is no evidence, medical or otherwise, independently relating the cervical spine disability to his active service.  In light of the foregoing finding, the Board concludes that the Veteran's cervical spine disability was not incurred in active service.

C.  Conclusion

A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA.  VA is responsible for considering all such evidence, lay and medical.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In this case, with regard to each claim, the evidence is not in relative equipoise so the benefit-of-the-doubt rule is inapplicable and the claims must be denied.



ORDER

Service connection for a low back disorder is denied.

Service connection for a cervical spine disorder also is denied.


____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs