Citation Nr: 1325497 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-12 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to service-connected left lower extremity edema. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1969 through September 1971. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of the hearing has been associated with the claims file. The Veteran's claim for service connection for an acquired psychiatric condition, to include depression, was granted by the RO in a May 2013 rating decision. Therefore this matter has been fully granted and is no longer on appeal before the Board. This issue was previously before the Board in August 2012 and remanded for further development. Specifically the Board requested all private records related to his back disorder, as well as any records from the Social Security Administration (SSA) be obtained and associated with the claims file. Additionally, an addendum opinion was requested from the VA examiner regarding whether the Veteran's back disorder was aggravated by his service-connected lower extremity edema. The Board finds the requested development was completed and appellate review may continue. Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's current back condition either began during, or was otherwise caused by, his military service, to include as secondary to his service-connected left lower extremity edema. CONCLUSION OF LAW Criteria for service connection for a back condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a back condition. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection may also be granted on a secondary basis when the Veteran has a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Service treatment records have been reviewed and reveal that while the Veteran received extensive treatment for his knees and left leg condition during service, he did not make any complaint of or seek any treatment for any back condition during his military service. His spine was noted to be at normal condition at his separation physical in July 1971. Moreover, the Veteran himself has not asserted that his back condition began during his military service. As such, the Board finds the evidence of record fails to establish the Veteran developed a chronic back condition during his military service. Post-service treatment records reflect that in July 1975 the Veteran was diagnosed with lumbar strain. The private medical provider opined his back was improving though flexion was still limited. In October 1976 the Veteran sought treatment at a VA facility for pain in his back. The Veteran reported he slipped in the bathtub a few days earlier and something on his side 'popped' and has been painful since. The physician noted the Veteran was young and obese with acute tenderness on the right side of his back. The doctor performed spinal manipulation and correction. In February 1980 the Veteran sought additional treatment for history of intermittent pain in his neck and low back he attributed to falling in the bath tub. Therefore, the record reflects that after separating from military service the Veteran injured his back in the bathtub in the late 1970s and this injury continued to cause him pain throughout 1980. The record also reflects the Veteran had various other post-service injuries to his back. In July 1985 the Veteran reported to his physician he threw his back out while waxing his car. In May 1986 the Veteran sought treatment from the ER for pain in his back following an injury at work. In May 1989 the Veteran again complained of low back pain he related to an old work injury. Therefore, the record establishes that throughout the 1980s the Veteran suffered additional injuries on his back after his military service which caused ongoing pain. The Veteran was also consistently noted to be overweight throughout this period. Although all post-military service treatment records are not available, the record reflects the Veteran also had two surgeries on his back, one in 1995 and a second to correct a residual from the first surgery in 1998. Therefore, the Board finds the evidence of record reflects the Veteran had numerous injuries to his back after his separation from military service. In contemporaneous statements the Veteran himself attributed his ongoing back pain to these post-service injuries. As such, the Board finds the evidence of record does not establish the Veteran developed a back condition during military service that continued consistently until the period on appeal. In a December 2005 letter the Veteran's private physician, Dr. G.G., stated the Veteran had spondylosis in his neck and lumbar spine. The physician opined the Veteran's left ankle condition had caused his gait to change which led to his back pain and exacerbated his neck pain. In a subsequent letter in April 2006 the same physician opined the Veteran had weight loss problems and associated neck and back osteoarthritis. He recommended the Veteran attend a weight loss program. In December 2006 the Veteran filed the current claim, asserting his chronic back pain was secondary to his left ankle condition. The Board notes that throughout the period on appeal the Veteran has consistently asserted that his current back condition is due to frequent falls caused by his service-connected left leg edema. As a lay person the Veteran is competent to report what comes to him through his senses, such as experiencing back pain and frequent falls. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise required to provide an opinion as to whether those frequent falls were caused by his service-connected edema or by one of his other, non-service-connected medical conditions. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Board will look to the medical evidence to determine if his current back condition was caused or aggravated by his service-connected left leg edema, or chronic venous insufficiency. In an October 2006 letter Dr. G.G. stated the Veteran had multiple osteoarthritic problems, mostly in his lumbar spine, due at least in part to his inability to ambulate effectively because of his left ankle injury. The doctor explained that because of the Veteran's limp his walking was limited and he therefore gained weight, which in turn led to the back issues. In a January 2007 letter Dr. G.G. wrote the Veteran had gained weight since his ankle injury which caused him to develop multiple conditions, although the doctor did not include the Veteran's back condition on this list. The Board acknowledges the opinion of Dr. G.G. suggests the Veteran's current back condition was due at least in part to his service-connected left ankle condition. However, Dr. G.G. did not discuss the Veteran's previous history of numerous injuries to his back after military service. Moreover, from the physician's letter it is unclear if he was familiar with the Veteran's history of numerous injuries to his back. Finally, Dr. G.G.'s opinion refers to the Veteran's chronic left ankle injury. However, this private physician does make clear the Veteran is service connected for left leg edema, not any specific injury to the left ankle. Therefore, the private physician failed to explain his reasoning and appears to base his opinion on an inaccurate understanding of the Veteran's service-connected condition. As such, the Board finds this opinion is of limited probative value. In July 2007 the Veteran was provided with a VA examination. The Veteran told the examiner he had back pain due to falls secondary to his ankle. The Veteran reported daily lower back pain with radicular symptoms in the past. He also described chronic morning stiffness, pain upon getting out of bed, and occasionally being awoken by pain at night. The examiner noted the Veteran's history of back conditions, including two previous lumbar laminectomies and denervations. Diagnostic testing revealed reduced range of motion and increased pain upon repetitive use. The examiner also noted the Veteran was obese. The examiner noted tenderness in the lumbar region as well as a well-healed surgical scar. The examiner opined the Veteran had degenerative disc disease in his lumbar spine status post lumbar lamniectomy. The examiner opined that no scientific evidence supported the Veteran's assertion that his back condition was related to his post phlebitis syndrome (inflammation of the vein) in the left leg. Therefore, the examiner opined it would be mere speculation, that is less likely than not, that the Veteran's current back pain was due to his service-connected post phlebitis syndrome. The Board finds this examiner was familiar with the medical history of the Veteran's back. The examiner also provided a clear opinion based on scientific evidence. As such, the Board finds this opinion provides probative evidence the Veteran's current back condition was not caused by his service-connected left leg edema. In January 2008 the Veteran filed a notice of disagreement asserting his treating physician, Dr. G.G., had spent more time with him and therefore his opinion should be afforded more weight than the opinion of the VA examiner. However, it is important for the Veteran to note that the Court of Appeals for Veterans Claims (Court) has expressly rejected a rule that opinions of private treating physicians are entitled to presumptively greater weight in evaluating veterans' claims. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). As such, the Board cannot give more weight to Dr. G.G. based solely on his longer treatment history of the Veteran, but will continue to weigh the probative value of each medical opinion included in the record. In November 2009 the Veteran was evaluated by a private physician, Dr. D.S. The doctor noted the Veteran had a history of constant achy pain in his cervicothroacic and lumbar spine, more in the neck, for over twenty-five years. His pain is worse by bending, stairs, lifting, driving, stress, sitting, and standing. His pain was improved by bath, lying down, medication, physical therapy, relaxation, and walking. The Veteran reported his cervical surgery was "botched" by Dr. L. The Veteran reported he previously lost eighty pounds, but experienced more pain in his back during that time. He has since gained about 50 pounds back. The physician diagnosed the Veteran with back pain. Imaging studies from February 2009 and September 2009 were reviewed and revealed degenerative disc changes in the lumbar spine as well as bulging at L4-5. Progressive degenerative spondylosis was noted in the cervical spine. The physician opined the Veteran's residual pain could be traced to poor posture, morbid obesity, and deactivation and deconditioning. The physician opined the Veteran had poor pacing and general lack of self-care. In June 2010 the Veteran was provided with a VA examination regarding his left leg edema condition. This examiner opined that the Veteran's leg periodically giving out was not secondary to his edema. However the examiner opined his edema could lead to decreased mobility. In June 2010 a private physician, Dr. W.G., opined the Veteran had cervical spondylosis with some impairment before and after surgery. He noted the Veteran may have chronic pain from this and myetopathy. In July 2010 the Veteran's physician, Dr. G.G., opined the Veteran's chronic back issues were debilitating. In September 2010 the Veteran was seen for back pain following a fall. The treating PA opined the Veteran had thoracic and lumbar back pain related to this fall and stability. In March 2013 the Veteran was provided with an additional VA examination. The examiner reviewed the Veteran's claims folder as well as personally interviewed and examined the Veteran. The examiner noted the Veteran's prior history of chronic low back pain with underlying degenerative disc disease, including two previous lumbar surgeries in 1995 and 1998. The examiner provided a detailed medical history of the Veteran's back condition, including no service treatment records regarding back condition during military service, but noted private treatment records from the 1980's reflected back symptoms. The Veteran reported his back problems were due to multiple falls attributed to his left ankle weakness. The examiner noted the Veteran was not service connected for ankle instability, but for left leg edema. Moreover she noted there was no record of care for ankle instability. The examiner opined that the Veteran's service connected edema was not a known cause of falls. Range of motion testing was conducted and revealed the Veteran had some limitation of motion in his back along with pain upon motion. Muscle strength was good; reflexes in the knee and ankle were hypoactive. The Veteran regularly used a cane to aid in ambulation for approximately the last five years in order to prevent falls. The examiner noted arthritis was indicated on imaging studies. The examiner opined the Veteran's back condition was less likely than not proximately due to or the result of the Veteran's service connected left leg edema. She explained there was no medical or physiologic connection between the lower extremity venous insufficiency and back conditions. The examiner opined venous insufficiency was not the cause of gait instability or falls. The Board has thoroughly reviewed and pondered the evidence of the record, but for the following reasons, it is simply not persuaded that it is at least as likely as not (50 percent or greater) that the Veteran's current back condition either began during or was otherwise caused by his military service, to include as secondary to his service-connected left leg edema. Service treatment records are negative for any complaints of or treatment for any back condition during military service. Post-service treatment records reflect the Veteran separately injured his back on several occasions in the two decades following his military separation which resulted in lingering pain. Therefore, the record does not establish the Veteran's current back condition began during and has continued since his military service. As such, the weight of the evidence is against service connection on a direct basis. The Veteran has consistently asserted that his back condition was caused by several falls secondary to his service-connected left ankle condition. However, the weight of the medical evidence of record establishes that the Veteran's service connected left leg edema, or chronic venous insufficiency, has not caused any instability or subsequent falls. The Board acknowledges that Dr G.G. did provide an opinion that the Veteran's current back condition was due to his left ankle condition. However, as discussed above, this opinion appears to be based on a misunderstanding of the Veteran's service connected condition and is not clearly based on a full understanding of the Veteran's medical history. Dr. G.G.'s opinion is therefore of limited probative value. Instead all three VA examiners of record specifically and unequivocally opined the Veteran's service connected left leg edema, or chronic venous insufficiency, does not cause instability or frequent falls. The March 2013 examiner continued to explain that there is no known connection between edema and a resultant back condition. All three of the VA examiners reviewed the Veteran's complete medical history, as well as personally interviewed the Veteran, and provided a clear rationale for their opinions. As such, all three of these opinions provide highly probative evidence against the Veteran's claim. Therefore the Board finds the weight of the medical evidence establishes it is less likely than not that the Veteran's service connected left leg edema, or chronic venous insufficiency, caused or aggravated his current back condition. Based on all of the foregoing the weight of the evidence is against the claim for service connection for his current back condition on a direct basis or secondary to his service-connected left leg edema. Therefore his claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, post service VA records, private treatment records, and records from the Social Security Administration have all been obtained and associated with the claims file. The Veteran was provided with a hearing with the undersigned Veterans Law Judge (VLJ) in March 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Oregon Department of Veterans' Affairs, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed back condition, specifically regarding any relation to his service-connected left leg edema. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. No additional pertinent evidence was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. In his January 2008 Notice of Disagreement the Veteran objected to the thoroughness of his July 2007 VA examination, as well as a failure to provide a reasonable rationale. The Board finds this examination was thorough; the examiner elicited a medical history from the Veteran as well as performed a physical examination and conducted diagnostic testing. As discussed above, the Board does not read the examiner's statement "Therefore I cannot say without resort to mere speculation as to the fact that the patient has back pain due to his service-connected post phlebitis syndrome" as a failure to provide an opinion. Instead, the examiner was stating that it would be mere speculation, that is less likely than not, that the Veteran's service-connection condition caused his current back pain. Therefore, despite the Veteran's objections, the Board finds this July 2007 examination was adequate. The Veteran was also provided with a subsequent examination in March 2013 and neither the Veteran nor his representative has voiced any issue with the adequacy of the more recent examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for service connection for a back condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs