Citation Nr: 1323982 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-43 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to January 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Waco, Texas, Regional Office (RO), of the Department of Veterans Affairs (VA), which denied the Veteran's claim for service connection for a low back disability. The Board notes that, in addition to the low back disability claim, the appeal originally encompassed claims for service connection for disabilities of the left hip, right knee, and pseudofolliculitis. In July 2012, the RO granted service connection for chondromalacia of the right knee, left hip tendonitis, and pseudofolliculitis barbae. This represents a full grant of benefits sought on appeal as to those issues. The low back claim is thus the only remaining issue on appeal. The Veteran testified before the undersigned in May 2012. A transcript of that proceeding has been associated with the claims file. The Board also notes that the Veteran submitted additional evidence in May 2013 consisting of private treatment without a waiver of RO consideration. However, as the Board is granting his claim in full, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. FINDING OF FACT Resolving all doubt in the Veteran's favor, a low back disability, diagnosed as lumbar spondylosis with mild degenerative arthritic changes of the lumbar spine, is etiologically related to documented in-service low back symptomatology. CONCLUSION OF LAW Service connection for a low back disability, diagnosed as lumbar spondylosis with mild degenerative arthritic changes of the lumbar spine, is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002) 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claim for service connection, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, lumbar spondylosis (i.e., degenerative osteoarthritis of the joints between the spinal vertebrae) with arthritis is a "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as spinal stenosis and arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection - Factual Background and Analysis In this case, the Veteran contends that his current low back condition had its onset during active duty service. During his May 2013 Board hearing, the Veteran testified that he has experienced intermittent low back strain/pain/spasms since completing a weighted, twelve mile ruck march in 1994 (i.e., a back "injury"). See Hearing Testimony Transcript, generally. He reported that he had flare-ups of very intense pain every 5 to 6 months thereafter and that he was treated with muscle relaxers in-service. The Veteran additionally testified that he frequently carried heavy equipment in association with his duties/military occupational specialty (MOS). Since his discharge from service in 2000, he stated that he has been treated in the emergency room for similar episodes of back pain/spasms and that he self-medicates with over-the-counter medications. Initially, the Board finds that the Veteran has met the threshold requirements of Hickson by showing that he has a current diagnosis of lumbar spondylosis with mild degenerative arthritic changes of the lumbar spine. See VA Spine Examinations, November 2011, and February 2012 (see also November 2011 VA lumbosacral spine X-ray documenting mild degenerative changes of the lumbar spine with spurring). Turning to the second prong of Hickson (i.e., in-service incurrence), service treatment records (STRs) reflect that the Veteran was treated for complaints of back pain and moderate muscle spasms in August and September 1993; he was given Flexeril and placed on physical profile at that time (no heavy lifting and no physical training). A November 1995 STR shows complaints of back pain, and objective findings of marked muscle spasms and pain with flexion. The diagnostic assessment was musculoskeletal back pain. A December 1995 STR reflects complaints of back pain, but no diagnosis. An August 1997 STR shows complaints of low back pain with objective findings of tenderness in the paraspinal lumbosacral region; the diagnostic assessment was low back strain. On a January 1998 Report of Medical History, the Veteran checked "yes" as to having recurrent back pain and swollen or painful joints. A separation examination is not of record. In addition to the above in-service findings of back pain/spasms/strain, the Veteran has competently testified that he started to experience tightening of the back muscles and back spasms after performing a 12 mile road march in full field gear and a 30 pound ruck sack. See Hearing Testimony, May 2013. The Veteran further stated that he was almost certain that he sustained some type of injury to his low back during that particular weighted march/run. The Veteran is competent to report that he experienced back pain/spasms after completing the weighed run in-service. See Layno, supra. Moreover, the Board can find no reason to doubt the credibility of such statements, especially in light of the contemporaneous STRs showing intermittent treatment for back symptoms. Accordingly, based upon the in-service findings of back pain, spasms, and strain, as well as the Veteran's competent and credible statements regarding in-service injury to the low back during a ruck march, the Board finds that the second element of Hickson has been met in this case. Therefore, the remaining question before the Board is whether a direct link has been established between Veteran's lumbar spondylosis with mild arthritic changes of the lumbar spine and his active service, either through a positive nexus opinion or continuity of symptomatology. See Hickson, supra; 38 C.F.R. § 3.303(b). The record contains two VA nexus opinions - one dated in November 2011, and an addendum opinion, provided by the November 2011 VA examiner, dated in February 2012. In November 2011, the VA examiner provided a diagnosis of lumbar spondylosis and opined that such disorder was at least as likely as not incurred in or caused by service. The examiner reasoned that the Veteran's STRs documented treatment and evaluation of intermittent low back pain. In December 2011, the RO sought an addendum opinion to clarify whether the Veteran had intervertebral disc disease (IVDS) since the November 2011 examiner had indicated that IVDS was present but contemporaneous x-rays showed no evidence of such disability. In February 2012, the same VA examiner who conducted the November 2011 examination opined that lumbar spondylosis was less likely than not incurred in or caused by service. (Emphasis added). He reasoned that there was only a single note documenting evaluation and treatment of a single incidence of acute lumbar sprain, and that the Veteran's current lumbar spine condition was more likely than not related to chronic degenerative changes associated with aging. The examiner also confirmed that the appropriate diagnosis was lumbar spondylosis (a synonym for osteoarthritis or degenerative arthritis of the lumbar spine) and that x-rays did not show IVDS. The February 2012 VA opinion is of no probative value because it is based on an inaccurate factual predicate. Contrary to the examiner's most recent findings, as discussed above, the Veteran was seen on multiple occasions during service for back complaints and even complained of the same on separation from service. When the examiner was cognizant that the Veteran was seen in service on multiple occasions for back pain, he was of the opinion that the Veteran's current back disorder was linked to the in-service episodes. The factual predicate in this case is that the Veteran was seen in service on multiple occasions for back pain. The Board is also guided by the Veteran's own account of continuous low back symptoms, which have persisted since his active duty service. Just as the Veteran is capable of reporting his low back injury while running a weighted ruck march in-service, he is competent to describe the recurrent presence of low back pain and related symptoms, which are capable of lay observation. See Davidson, 581 F.3d at 1318. Moreover, the Board considers the Veteran's assertions to be consistent and credible, especially in the absence of probative evidence to the contrary. See Caluza, 7 Vet. App. at 511 (1995). In this regard, although the record lacks medical documentation of continuous back treatment since service (that is, until 2010), the Veteran has credibly stated that he has treated his back pain conservatively and self-medicates with Ibuprofen. See VA November 2011 VA Examination Report Medical History, and Hearing Testimony. Having thus determined that the Veteran's account of recurrent back problems since service is both competent and credible, the Board finds the Veteran's account, in tandem with the earlier positive opinion and in-service treatment for back spasms/sprain/pain is sufficient to resolve reasonable doubt in favor of the Veteran. Accordingly, serivce connection is warranted. ORDER Entitlement to service connection for lumbar spondylosis with mild degenerative arthritic changes of the lumbar spine is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs