Citation Nr: 1323490 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 11-22 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for bilateral leg radiculopathy, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to April 1956. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The issues of entitlement to service connection for a low back disorder and bilateral leg radiculopathy were remanded by the Board for further development in March 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A low back disorder was not manifest during service, was not manifest within one year of separation, and any current low back disorder, to include degenerative joint disease, is not attributable to service. 2. A disorder of the bilateral lower extremities, to include bilateral leg radiculopathy, was not manifest during service, was not manifest within one year of separation, and any current bilateral leg disorder is neither attributable to service nor to a service-connected disability. CONCLUSIONS OF LAW 1. A low back disorder, to include degenerative joint disease, was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A bilateral leg disorder, to include radiculopathy of the bilateral lower extremities, was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein; a bilateral leg disorder was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or 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 piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Further, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issues of entitlement to service connection for disorders of the low back and bilateral legs, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in April and August 2010 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in September 2010. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. Further, the Veteran's service treatment records and pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, following a March 2013 Board remand, a VA examination was provided in May 2013 to ascertain whether the Veteran's back disorder, and with that bilateral leg radiculopathy, was etiologically-related to service. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion obtained is adequate, as the examiner provided findings relevant to the issues at hand. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issues on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for disorders of the low back and bilateral lower extremities. He contends that his current back diagnosis is causally-related to his period of active service, and that his radicular pain is secondary to his back disorder. The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which does not include shin splints. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). At the outset, the Board notes that the Veteran has current diagnoses of severe lumbar spondylosis, severe degenerative joint disease of the lumbar spine, and associated lower extremity radiculopathy. Thus, element (1) of Hickson has been satisfied for his service connection claims. Turning to the Veteran's service treatment records, the Board notes that there were complaints of back pain on two occasions during his period of active duty. The first such report, in November 1954, indicated that the Veteran complained of back pain, however limited motion was not demonstrated. He was diagnosed with mild back strain. In July 1955, the Veteran complained of back pain for a duration of three days, which was non-tender upon palpation. He was again diagnosed with a strain. Six days thereafter, he reported that his back was better. On separation in March 1956, the Veteran's spine was normal, and he denied any significant medical history of an orthopedic nature. On his Report of Medical History, he indicated that he never wore a back brace or back support. Throughout his service treatment records, there were no complaints, treatment, or diagnosis of any leg disorder, right or left, nor was there a diagnosis of a chronic back disorder. Post service, the first evidence of record documenting low back pain was chronicled in July 1971 following an incident in which the Veteran was lifting a chair. An insurance form dated in October 1971 included the Veteran's report of "excellent health." Low back pain with radiation, which ultimately required a laminectomy, was noted in February 1981. This pain coincided with a work injury which, per a January 1980 report, occurred in December 1978. There were no additional reports of back problems until 1989, after the Veteran was involved in a motor vehicle accident. A private medical opinion, undated, noted that no x-ray examinations were available for review, and that no additional records were submitted. It is therefore unclear whether the examiner was able to review the Veteran's service treatment records, or whether he was able to review the Veteran's complete post-service medical history. Regardless, the provider noted that the Veteran's back disorder resulted in a mild to moderate disability, materially and substantially greater because of the in-service injury in 1966 or 1956. This date was denoted with a "?," leading the Board to believe that the Veteran's records were unavailable for review, and therefore that the provider relied on the Veteran's own history when making the determination that the "back disability" (no actual diagnosis was provided at that time) could be apportioned as 75% due to a prior back injury, and 25% to the 1989 motor vehicle accident. In conjunction with his claim, the Veteran was afforded a VA examination in May 2013 which resulted in diagnoses of severe spondylosis, degenerative joint disease of the lumbar spine, and associated radiculopathy. Following an exhaustive review of the claims file, to include a chronology of all records relevant to the Veteran's claims, the examiner determined that it was less likely than not that the Veteran's back disorder was related to his period of active service. In support of that opinion, the examiner pointed to the lack of chronicity of back treatment since the date of separation. That span of time was greater than 15 years. As to the Veteran's in-service complaints, the examiner found those instances of back pain to be brief and self-limiting. Regarding the conflicting medical opinions of record, the undated private opinion indicated that the Veteran's back disorder was mostly, 75% in fact, related to his in-service back complaints. The Board notes, however, that this opinion is wholly speculative in nature, and far from conclusive. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that use of the phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little probative value when a physician makes equivocal findings that a relationship between service and the claimed disorder "may" be presented). First, there is no indication that objective testing was performed in conjunction with the opinion. While the opinion indicates that the page of record is "page 4," the Board remanded the Veteran's claim, in part, to obtain the remainder of that medical record. To date, the Veteran has not replied with VA Form 21-4142, and thus VA has been unable to request the remainder of that opinion. Second, the opinion does not provide a current diagnosis for any chronic back disorder, or any disorder at all. Instead, it simply references the Veteran's "back disorder." Third, it does not appear that the provider reviewed all evidence currently of record, as indicated by the "?" following the entry as to the date(s) of the Veteran's in-service back complaints. Fourth, the examiner indicated that the Veteran's disability "could be" apportioned as 75% related to his period of active service, though this language is equivocal at best. Finally, there is absolutely no rationale to support this opinion contained on this single, undated page. Though it references a 1989 motor vehicle accident, the provider did not elaborate as to why an in-service complaint of back pain, and not the significantly-more-recent car crash, was responsible for the Veteran's back difficulty. In contrast, the VA examiner discussed each incident of documented back pain that the Veteran is known to have incurred in service, and discussed the Veteran's post-service medical history in detail, referencing each specific complaint of back pain, as well as the post-service injuries which preceded those instances, to include a work accident and a motor vehicle accident. The examiner concluded that the passage of time, greater than 15 years, between the Veteran's separation and his first documented post-service back pain did not establish the requisite chronicity to share a common etiology. As such, it was less likely than not that these incidents were related, and the Veteran's in-service back complaints were self-limiting and had resolved prior to separation. As to the separation examination, the Board notes again that the report was negative for any complaints or diagnoses of a chronic back condition. With regard to the Veteran's bilateral leg condition, diagnosed as radiculopathy, this disorder was manifested by decreased sensation to light touch and mild to moderate pain during the May 2013 VA examination. No other signs or symptoms of radiculopathy were present, and no other disorder of the bilateral legs has been diagnosed during the appellate period. It was indicated that this radicular pain was an offshoot of the Veteran's low back disorder, and no other etiological opinion was provided by this examiner, or any other provider of record. As noted above, a disorder affecting either leg was not diagnosed during the Veteran's period of active service. As to the Veteran's assertions that he currently suffers from disorders of the back and bilateral lower extremities that are etiologically-related to his period of active duty, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his back disorder began during service, and that his radiculopathy is the direct result of that condition. In that regard, he is deemed competent to report symptoms of a back and leg disorders, such as pain or other neurological complaints. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. Here, the Veteran has not demonstrated competence to provide an opinion as to the onset or cause of a complex medical diagnosis, and the claimed issues are not disorders whose causes are simple to identify, especially given the Veteran's complaints of neurological discomfort. See Jandreau. Based on the foregoing, in order to establish service connection, the record would have to contain competent medical evidence of record linking the Veteran's claimed disorders to his period of active service, or, in the case of his bilateral leg claim, to a service-connected disability. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Colvin. Despite the presence of current diagnoses throughout the appellate period, as well as a non-probative opinion with regard to the Veteran's back disorder, the preponderance of the medical evidence is against the finding of a relationship between the Veteran's currently-diagnosed disorders of the back and bilateral lower extremities, and service. In sum, the most probative evidence of record does not establish that the Veteran's back disorder, or related bilateral lower radiculopathy, is related to service, causally-related to a service-connected disability, or manifest within one year of separation. There are no contemporaneous records of any complaints, findings, treatment, or diagnosis of a chronic back disorder during service, as each instance of back pain was self-limiting and resolved prior to separation. Instead, the record establishes that, more than 15 years after separation, the Veteran reported with back complaints following a work accident. Following years of ongoing treatment, the record lacks a probative medical opinion linking either claimed disorder to either active duty, or to a service-connected disability. While the Board has taken the Veteran's statements regarding long-term back and leg symptomatology into account, he has not demonstrated the medical competency to provide an etiological link between these two disorders and his period of active service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claims for entitlement to service connection for a back disorder, to include radiating pain secondary to the Veteran's back diagnosis, and as such the claims must be denied. ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for bilateral leg radiculopathy, to include as secondary to a low back disorder, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs