Citation Nr: 1324091 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-05 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO. In May 2011, the Board denied the Veteran's claims for service connection for bilateral hearing loss, for tinnitus, and for hypertension as secondary to service-connected diabetes mellitus. It remanded the Veteran's claims for service connection for a low back disorder and for a cervical spine disorder to the Appeals Management Center (AMC) for additional development. Following the completion of the development requested, the AMC continued the denial of the Veteran's claims and issued a supplemental statement of the case (SSOC) in March 2012. In February 2013, the Board remanded the Veteran's claims for service connection for a low back disorder and for a cervical spine disorder for additional development. Following the completion of the development requested, the AMC continued the denial of the Veteran's claims and issued a supplemental statement of the case (SSOC) in April 2013. The Veteran's claims have since been returned to the Board for further appellate consideration. (The issue of entitlement to service connection for a cervical spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.) FINDING OF FACT A chronic low back disorder did not have its clinical onset in service and is not otherwise related to active duty; arthritis of the lumbosacral spine was not exhibited within the first post service year. CONCLUSION OF LAW A low back disorder was not incurred or aggravated in service, and arthritis of the lumbosacral spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, (West 2002); 38 C.F.R. § 3.159 (2012). In correspondence dated in February 2007, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his claim for service connection for a low back disorder, information and evidence that VA would seek to provide, and information and evidence that the Veteran was expected to provide. In addition, the February 2007 correspondence notified the Veteran of the process by which initial disability ratings and effective dates are established. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records (STRs), medical examination reports, as well as VA and private treatment records have been secured. The Veteran has been provided a VA examination and an etiology opinion has been proffered by a VA examiner following a review of the record. The Board finds the VA opinion obtained in this case to be adequate, as it is predicated on a full reading of the Veteran's claims folders and all of the pertinent evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate and fully articulated and is based on sound reasoning). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge outlined the issues on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty would be helpful in establishing the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Otherwise, the Veteran and his representative have submitted arguments in support of the Veteran's claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue of service connection for a low back disorder that has not been obtained. In particular, in a January 2010 statement, the Veteran's spouse reported that doctors had told the Veteran that his low back problem had occurred "a long time ago caused by a serious fall." The Veteran was advised in the above noted February 2007 notice letter to submit statements from doctors in support of his claim. The record on appeal does not reflect any favorable VA or private medical opinions from clinicians relating the Veteran's current low back disorder to his period of active service. The Board notes that the duty to assist is not always a one-way street. The Veteran has an obligation to assist in the adjudication of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (2004). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309. The Board has reviewed all evidence in the claims folders and in the Veteran's electronic case file (Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, the Board is not required to discuss, in detail, every piece of evidence of record. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. The Veteran contends that he injured his low back in service when he fell down a flight of stairs in November 1965 while in basic training. He contends that his current low back disorder is related to that fall. A review of the Veteran's STRs reflects a November 1965 treatment note in which it was reported that the Veteran had twisted his left ankle "when he tripped on the stairs 9 days ago." Subsequent treatment notes reflect treatment for a left ankle sprain. A February 1967 treatment record documents the Veteran's complaints of pain in his right lower quadrant after lifting a heavy trailer two days previously. Physical examination revealed no hernia but there was tenderness in the inguinal canal. Additional examination findings reflected the Veteran's report of "L4 pain [right] groin." The Veteran was noted to have lifted a heavy object. The clinician's impression was possible epididymitis. The treatment record does not otherwise provide an impression or assessment regarding the low back. Further review of the Veteran's STRs does not reveal complaints or treatment regarding low back pain or disability. Also, there is no finding or discussion of a low back problem in the report of medical examination at the time of separation from active service, or in the associated report of medical history. In the report of medical history, the Veteran indicated that he never had or had had recurrent back pain. Post-service medical records do not mention back problems until more than 25 years later when in June 1993, the Veteran complained of thoracic spine pain. In September 1994, the Veteran was seen by a chiropractor for acute mild left lumbosacral pain. Treatment from the chiropractor included a fifth lumbar adjustment. In a May 1, 1995 chiropractic record, the Veteran was noted to complain of lower back pain. The chiropractor noted, in particular, "[The Veteran] stated it has been bothering him for awhile and cannot think of anything to precipitate these symptoms other than his normal work and leisure activities." A record later that same month, dated March 30, 1995, noted that the Veteran was receiving chiropractic treatment for complaints of acute moderate lumbosacral pain. The Veteran was noted to report stated that over the weekend he had been installing a sink in his kitchen and bent over to put the sink down and heard a pop and knew he had injured his back. The diagnosis was acute lumbar sprain. Additionally, diagnostic studies revealed grade I spondylolisthesis at the L5-S1 level as well as disc space narrowing and neural foraminal narrowing. The Veteran has submitted statements from his current spouse and ex-spouse, a former neighbor, and two soldiers who were with him during basic training in support of his claim. These statements comment on the Veteran's fall down stairs in basic training and his complaints of back and neck pain following service. In particular, the Veteran's ex-spouse reported that she had been married to the Veteran beginning in December 1970 and that during their marriage the Veteran had been treated for back and neck problems. Likewise, his current spouse, who reported having been married to the Veteran for 30 years, also reported that the Veteran had been treated for back and neck problems. The statements from the two soldiers document the Veteran's fall down a flight of stairs during basic training and his treatment for an ankle problem. The Veteran's neighbor reported in his statement that he had known the Veteran for over 40 years and that when he asked the Veteran how he hurt his back he was told that the injury had occurred in service when the Veteran fell down the stairs. The Board has weighed the above lay evidence, to include the Veteran's own statements regarding continuity of symptoms of low back pain since service, with the other evidence of record. The Board finds the Veteran's STRs sufficiently document that he fell down stairs during basic training. Also, the Veteran is competent to report experiencing low back pain. In the present case, the Board finds persuasive the lack of any documented report of treatment for a back injury in service following the Veteran's fall or at any other time, as well as the Veteran's statement at separation that he did not have recurrent back pain. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (The Board may draw a reasonable inference from a lack of notation of a condition in a medical report, if the report would be expected to carry such information). Also, the Board recognizes that it is not the fault of the Veteran that he cannot procure treatment records from doctors who allegedly treated him for his low back in the 1970s and 1980s. Still, the fact remains that there is lack of objective evidence of any treatment for a low back problem prior to September 1994. This fact, combined with the lack of any diagnoses or treatment of the low back in service, tends to undermine the veracity of the Veteran's more recent statements, as well as those statements from the other noted individuals, that he has experienced pain symptoms continually since the in-service incident when he fell down the stairs. See e.g., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). The Board also finds the neighbor's statement that the Veteran had told him that he had had back problems ever since falling down the stairs in service to conflict with the May 1, 1995 chiropractic note in which the Veteran was noted to have reported that his neck and low back had been bothering him for awhile and he could not think of anything to precipitate these symptoms other than his normal work and leisure activities. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; 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). The Veteran himself denied that he had or had had recurrent back pain when examined at service discharge. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, and/or inconsistency with other evidence of record). When the Board reviews the Veteran's statements (as well as those of his spouse, ex-spouse, and neighbor) in asserting in service-injury and continuity of symptomatology since service, the statements are not entirely consistent with the overall evidence of record or convincing. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed low back disorder and his active duty service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran's low back disorder is related to service falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Notwithstanding the above, service connection may still be granted when the evidence establishes that arthritis/degenerative changes manifested within one year of the Veteran's separation from service, or if the evidence establishes a nexus between active duty service and the Veteran's current low back disorder. In this case, there is a lack of medical evidence reflecting a diagnosis of or treatment for degenerative changes of the low back within one year of the Veteran's separation from service. Thus, service connection for a low back disorder, on a presumptive basis, is not warranted. The Board also finds that the medical opinion evidence does not attribute the Veteran's low back disorder to active service. Here, in a report of September 2011 VA examination, the examiner attributed the Veteran's low back disability to the normal aging process and not otherwise to service. However, the examiner did not consider all the evidence then of record. In a subsequent March 2013 VA disability benefits questionnaire (DBQ), a VA examiner opined that it was less likely than not that the Veteran's lumbosacral degenerative arthrosis was incurred in or caused by service. The March 2013 VA DBQ reflects the examiner's reporting of the Veteran's medical history concerning his low back, including the reported in-service injury and post-service treatment. The examiner commented that there was no objective evidence relating the Veteran's current lumbar disability with any event in service. Here, the examiner has discussed the evidence, considered the Veteran's history, to include his STRs, and provided the basis for her opinion. The Board finds that the March 2013 VA DBQ and the associated opinion adequate for evaluation purposes. While it has been argued that the examiner did not explicitly discuss the Veteran's noted report of L4 pain in the right groin, the examiner implicitly reviewed the report per her review of the Veteran's STRs which she discussed in the DBQ. Her opinion took into consideration the Veteran's entire service medical history. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 ( 2012) (there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file). Therefore, the Board finds the VA examiner's opinion to be of probative value and persuasive. The record on appeal does not otherwise contain medical evidence suggesting that any current low back disorder can be attributed to the Veteran's active service. The argument has been raised that the March 2013 VA examiner also failed to consider the lay evidence, to include the Veteran's statements, in finding that the Veteran's low back disorder was not related to service. A medical examiner must consider lay statements regarding in-service occurrence of an injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006) The Board's review of the March 2013 VA DBQ does not reflect specific citation to all the lay evidence of record; however, there was specific reference to the Veteran's claimed low back injury in service, his history of back pain and post service treatment. Moreover, the Board has found that the Veteran's lay statements (and those of his spouse, ex-spouse, and neighbor) are inconsistent with other evidence of record and not convincing. As such, the lack of specific discussion by the examiner of all of the lay evidence does not adversely affect the probative value or persuasiveness of the opinion provided. See e.g. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Accordingly, based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder, diagnosed as degenerative arthrosis of the lumbosacral spine. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a low back disorder is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for a low back disorder is denied. REMAND In her March 2013 VA DBQ, the VA examiner provided a medical opinion with respect to the Veteran's claim for service connection for a cervical spine disorder. In particular, the VA examiner noted that the Veteran reported having experienced neck pain since 2004. Likewise, the examiner commented that the medical evidence of record did not reflect complaints or treatment for neck pain prior to 2004. While the Veteran misled the examiner by claiming neck pain only since 2004, a review of private chiropractic notes associated with the claims folders reflects complaints and treatment for neck (cervical) pain as early as June 1993. As review of the private chiropractic notes and the evidence they contain with respect to the Veteran's cervical spine could have a bearing on the examiner's opinion regarding the etiology of the Veteran's cervical spine disorder, the Board finds an additional addendum medical opinion is necessary before deciding the Veteran's claim on appeal. Accordingly, the issue is REMANDED for the following action: 1. The claims folders should be referred back to the VA examiner who examined the Veteran and completed the March 2013 cervical spine DBQ. The examiner should offer an addendum medical opinion based on a thorough review of the evidence of record, to include private chiropractic notes reflecting complaints and treatment for cervical pain as early as June 1993 (See Volume 2 of the claims folders). A copy of this remand must be made available to the examiner for review in connection with the requested addendum opinion. The examiner should again indicate whether it is at least as likely as not that the Veteran's degenerative arthrosis of the cervical spine had its clinical onset during service or is otherwise related to service. A complete explanation should be given for any opinion or conclusion expressed with reference to relevant evidence. If the March 2013 examiner is not available to provide an addendum opinion, make arrangements for the claims folders to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) 2. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue of service connection for a cervical spine disorder on appeal. If the benefit sought is denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs