Citation Nr: 1324972 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-13 277 ) 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: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from March 1973 to December 1974. This matter arises to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board denied service connection for a low back disability in May 2010. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (hereinafter: the Court). In a November 2011memorandum decision, the Court vacated and remanded that portion of the Board decision that had denied service connection for the low back disorder. Subsequently, in July 2012 and again in March 2013, the Board remanded the case to VA's Appeals Management Center for development. The Veteran testified before an RO hearing officer in June 2008. As noted in the now-vacated May 2010 Board decision, the Veteran failed to appear for a hearing before a Veteran's law judge and later withdrew his request for such hearing. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran has provided competent, credible lay testimony of continuity of symptomatology of low back pain dating from the present back to a documented in-service back injury in October 1974. 2. The negative medical opinions offered in this case are based on an inaccurate factual premise and therefore cannot be afforded any weight in this matter. 3. The evidence in this case is at least in relative equipoise. CONCLUSION OF LAW Lumbar spine degenerative disc disease was incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. As noted in the now-vacated May 2010 Board decision, the Veteran sustained a low back injury during active service in October 1974. His Service Treatment Reports (STRs) reflect that he was sound at entry, except for being overweight. The STRs document a low back injury in October 1974. An October 1974 X-ray report notes, "No Fx." An October 1974 clinical examination report reflects mentions pain in the low and mid-back and mid-scapula area with trouble breathing and no numbness or tingling in the extremities. The diagnosis was a muscle strain. In December 1974, the Veteran underwent an unsuitability discharge examination, apparently because of obesity. The report reflects that all systems were normal; however, there is no accompanying medical history questionnaire on which the Veteran might have reported a continuing spine-related symptom. In April 2003, the Veteran submitted a January 2003 private magnetic resonance imaging (MRI) study of the spine. The MRI showed disc bulges throughout the lumbosacral spine and at T12-L1. The MRI also showed posterior facet hypertrophy and congenital shortening of the pedicles. The Veteran reported a history of chronic low back pain and offered a history of a post-service (1976) motor vehicle accident. The RO later obtained VA out-patient treatment reports that note more extensive VA low back treatment during March 2003. In October 2005, the Veteran requested service connection for his lower back disability. He stated that his lower back injury occurred while on active duty. A February 2006 VA spine compensation examination report reflects a diagnosis of lumbar spine degenerative disc disease with chronic back pain. The Veteran reported an in-service back injury that resulted in a physical profile and additional pain developing after a motor vehicle accident in 1976 or 1977. He sought treatment after the motor vehicle accident and they told him that he had damaged his lower back. He also reported that more recently he had strained his lower back. The examiner concluded that it is unlikely that the current low back disability is related to active service. The basis of that opinion is that no chronic low back condition was established prior to discharge from active service. The RO denied service connection for the lumbar spine in April 2006. In a May 2006 notice of disagreement, the Veteran alleged that he had injured his neck during active service while wrestling a much heavier soldier. He stated that he had back problems ever since. In June 2008, the Veteran testified before an RO hearing officer that during active service a larger soldier fell on top of him and he felt every bone in his back pop. He was transported to the hospital at Twenty Nine Palms Marine Corps Base. He testified that later, in a car accident in 1976, he crushed two vertebrae, "But my back has always hurt." He explained that the auto accident aggravated a condition that began when he was in active service. In a November 2011 memorandum decision, the Court noted competent and credible lay evidence of continuity of back pain symptoms ever since active service. The Court then cited its holding in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) ("credible evidence of continuity of symptomatology such as pain or other symptom capable of lay observation" may indicate that a current disability "may be associated" with military service). The Court further noted: On remand, if the Board is without sufficient information on which to make such a determination, the Board must obtain a medical opinion. That opinion must be based on the Board's favorable determination as to the competency and credibility of [the Veteran's] assertion that he suffered back pain since service-consequently, before a 1976 motor vehicle accident. The Board remanded the case in July 2012 for an examination and medical opinion taking into account the Veteran's credible and competent testimony of continuity of symptomatology since active service and prior to the 1976 injury. In August 2012, a VA examiner offered a medical opinion that dissociates the lumbar spine degenerative disc disease from an active service injury. The basis was the fact that no chronic lower back condition was established while on active duty and also on the basis of no evidence of treatment prior to the 1976 injury. The examiner also expressed concern that the more-recent back strains might argue against a finding that the in-service back injury has continued to the present. In March 2013, the Board again remanded the case. The Board noted that the offeror of the August 2012 medical opinion had not followed the previous remand instruction. The examiner had not considered or addressed the Veteran's competent, credible lay testimony of continuity of symptomatology dating back to active service. In its March 2013 remand, the Board stressed that the Board and the Court had previously established that the Veteran's testimony was competent and credible. The Board requested that a different examiner be used. The examiner was to examine the Veteran, elicit his full medical history, and then choose between three alternatives: (1) whether the 1976 injury constituted a superseding injury that cancelled the effect of the in-service back injury; (2) whether the 1976 injury constitutes an exacerbation of the in-service back injury [this is essentially a question of aggravation]; or, (3) whether an opinion cannot be provided without resort to speculation. In June 2013, a VA family-nurse-practitioner examined the Veteran and addressed the questions posed in the remand instruction. This examiner found it "more likely than not" that the in-service back strain resolved. The rationale for that conclusion is, "90% of lumbosacral strains resolve within 6 weeks of injury" and, "SMRs do not show chronic/repetitive treatment for injury in question during active duty." The examiner stated, "It is this examiner's opinion that the chronic back pain is attributed to the >20 years of compiled injuries to the back." The examiner then stated that the Veteran denied having injured his back during active service and added the following: Per Veteran's own history, his back was injured on the job while working for the RR, not during active duty, his back was injured in a MVA, not during active duty. Again, per Veteran's history and documented medical records, he slipped and fell on the ice and injured his back, not during active duty, his back was injured while painting a house, not during active duty. Veteran's medical records show a history of increased BMI, with the highest being 38 and the lowest a 29, all of which confirm obesity. It is more likely that [sic] not that the back condition in question is attributable to long standing history of obesity and multiple back injuries over the last 20-25 years. Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The first question for Board resolution is whether the June 2013 VA examiner has complied with the remand instructions. The answer to this question is "no." The examiner was to choose between three alternatives: (1) whether the 1976 injury constituted a superseding injury that cancelled the effect of the in-service back injury; (2) whether the 1976 injury constitutes an exacerbation of the in-service back injury; or, (3) whether an opinion cannot be provided without resort to speculation. Because the examiner failed to do this, a Stegall violation has occurred. Stegall v. West, 11 Vet. App. 268, 271 (1998) (when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance). While a Stegall violation would normally trigger another remand for correction of the error, in this case, two remands have failed to gain compliance with those instructions. The Board will therefore adjudicate the issue based on the evidence of record, including recent evidence provided by the June 2013 examiner. Because the VA examiners have discounted, or overlooked, the Veteran's lay history of continuity of symptomatology, the medical opinions offered are based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Thus, the negative VA medical opinions supplied in this case cannot be accorded weight. The June 2013 medical opinion, while lacking consideration of continuity of symptomatology, offers favorable evidence nevertheless. First, while noting that 90 percent of lumbosacral strains resolve within six weeks, the examiner has informed us that 10 percent of these do not resolve. The explanation as to why this case should not be included in that 10 percent is unsatisfactory, as the examiner failed to consider continuity of symptomatology, even though the Board had explicitly directed the examiner to consider these symptoms. Moreover, the examiner's statement that during the examination the Veteran denied having injured the back during active service is utterly incredible, as the STRs clearly document a back injury during active service and the Veteran has spent over seven years appealing for service connection for that injury. Second, the examiner attributed the current back disability to "greater than 20 years of compiled injuries to the back." Taking this opinion at face-value, this medical history would include the clearly-documented initial in-service injury. Thus, a link to active service is tacitly admitted here. Third, the examiner found it more likely that the back condition is attributable, in part, to obesity. This is mildly favorable, as a history of obesity is clearly noted in-service. In fact, the Veteran was discharged from active service in December 1974 because of obesity. An argument for service connection can be made here: the Veteran's pre-existing obesity put his lower back at greater risk for injury during active service. Thus, another link between the low back disability and active service exists. Continuing with the adjudication of this case, we must address the lay evidence and testimony of continuity of symptomatology dating back to active service. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In Rowell v Principi, 4 Vet. App. 9, 19 (1993), the Court stressed, "Here, the Board must do more than simply point to an absence of medical evidence; it must offer some basis for finding the lay evidence insufficient to establish entitlement to benefits." See Cartright v. Derwinski, 2 Vet. App. 24 (1991) (lay evidence alone may be sufficient to place the evidence in equipoise and thus, under 38 U.S.C. § 5107(b), establish entitlement to benefits). See also Ashmore v. Derwinski, 1 Vet. App. 580, 583-84 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991). The Federal Circuit cautioned that "...the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms." See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As noted earlier, the Court and the Board have already provided an expectation in this case that the Veteran's lay evidence of continuity of symptomatology is competent and credible. The Board now finds that it is favorable to the claim. Because the lay evidence of continuity of symptomatology tends to link the current back disability with an injury during active service and because the negative medical opinions lack probative or persuasive value, after considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 54. Service connection for lumbar spine degenerative disc disease must be granted. ORDER Service connection for lumbar spine degenerative disc disease is granted. ____________________________________________ M. G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs