Citation Nr: 1325546 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-21 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for left lower extremity radiculopathy as secondary to a low back disability. 3. Entitlement to service connection for a left hip disability as secondary to a low back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Portland, Oregon. In March 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Portland, Oregon. A transcript of the proceeding has been associated with the claims file. In April 2013, the Board requested a Veterans Health Administration (VHA) medical opinion. Subsequently, a June 2013 VHA medical opinion was obtained, the Veteran was provided with a copy, and he submitted additional argument in July 2013. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that Veteran's low back condition is casually or etiologically related to a disease, injury, or incident in service. 2. The preponderance of the evidence is against a finding that Veteran has left lower extremity radiculopathy that was caused or aggravated by service-connected disability. 3. The preponderance of the evidence is against a finding that Veteran has a left hip disability that was caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for left lower extremity radiculopathy is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 3. Service connection for a left hip disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to all of the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a January 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The January 2009 letter informed the Veteran of what information or evidence was needed to support his claims, including claims for secondary service connection, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The January 2009 notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. Therefore, the Board finds that the record contains sufficient evidence to make a decision on the Veteran's claim. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's claims for service connection for a low back disability, left lower extremity radiculopathy, and a left hip disability, the Veteran was provided with a VA examination relating to his claims in April 2009. The Board also obtained a June 2013 VHA medical opinion. The Board finds that the April 2009 VA examination report and June 2013 VHA medical opinion to be sufficient upon which to base a decision with regard to the Veteran's claims. The Veteran was interviewed and thoroughly examined in April 2009, both examiners reviewed the claims file, and their opinions and rationales taken together are sufficient upon which to base a decision with regard to the Veteran's claim. 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), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran served on active duty from June 1979 to June 1983 as a diesel hydraulic technician. He claims that he has a low back disability due to his active service. He also claims that he has left lower extremity radiculopathy secondary to his low back condition, as well as a left hip disability as secondary to his low back disability. See Board Hearing Transcript at 5. The Veteran testified at the Board hearing that he injured his back in service when he backed a forklift into an aircraft wing, but that he did not seek treatment at that time and just forged ahead. See Transcript at 3. He also testified that he operated a tow tractor in service, and that on several instances, he strained his back lifting armor plating or tow bars from a pile. See Transcript at 4. Post-service, he testified that he briefly worked at a cannery where his "back gave." See Transcript at 6. Also, he testified that sometime between 2004 and 2006, he jumped out of a dump truck while working and the next day was unable to walk. See Transcript at 6. The Veteran asserts that the work incident at most only aggravated an already existing back condition that he incurred in service. He testified at the Board hearing that pain "radiates from my lower back through the hip all the way down to my toes." See Transcript at 5. The Veteran's service treatment records reflect that in January 1981, he was seen for pain in the intrascapular region after lifting a 70 pound sheet metal plate. He was tender along the paraspinous processes, "about level of T-6, T-7." The impression was myofascitis. He was put on light duty for one week. Also, a December 1981 treatment record reflects that he was seen after he scraped his back on the right scapular area while walking under a F-14 aircraft. Post-service, a July 2006 private treatment record reflects that the Veteran complained of back pain since an incident in April 2006 in which he injured his back falling off a dump truck. An August 2006 private operative report reflects that the Veteran underwent a left L5-S1 discectomy. The Veteran was provided with a VA examination in April 2009. The April 2009 VA examiner noted that the Veteran's in service history of being seen regarding his back, and also of having scraped his back in service. The examiner also noted that the Veteran reported experiencing sporadic back pain ever since service. The examiner noted that post-service, the Veteran went into tow truck driving and one day jumped off the truck and landed funny in 2006 (the Board acknowledges that other records note the incident as involving a dump truck) and underwent surgical treatment. The Veteran also reported experiencing left leg radiculopathy, albeit it is not entirely clear whether his report related only to after the 2006 incident or since service. The Veteran reported currently experiencing stiffness and soreness in his back. He also reported "hip pain," which the examiner explained was actually a report of pain going down the posterior aspect of his back and into his left leg, and down into his heel and across his big toe. He also reported experiencing occasional weakness and numbness radiating down the leg. Physical examination of the Veteran's back revealed limitation of motion, including forward flexion of the thoracolumbar spine to 50 degrees. "Very mild" tenderness to palpation was also noted. Physical examination of the Veteran's left hip revealed 120 degrees of flexion with no objective evidence of pain. Forty degrees of abduction was also noted. Hip strength with flexion and extension was noted as 5/5. No tenderness in the trochanteric area was noted. With regard to the Veteran's left lower extremity, positive straight leg and positive crossover for left leg pain was noted. Also, 5/5 strength for left ankle dorsiflexion, plantar flexion, and inversion/eversion, as well as for knee flexion and extension. Decreased sensation was noted in the entire L5 distribution only on the left side. Cf. VA EMG Report, May 2009. The examiner recorded diagnoses of a normal left hip, and reiterated that "I find no abnormalities in the left hip." He also recorded a diagnosis of lumbar strain status post lumbar L4/L5 laminectomy with discectomy with scarring. The examiner opined that the Veteran's 2006 surgery had gone on to the progression of scarring, and is what is termed failed back surgery syndrome with left leg radicular symptoms. The examiner opined that it is not at least as likely as not that the Veteran's back condition and left leg radicular symptoms are related to his service. The examiner reasoned that his conditions were consistent with him jumping out of a truck. In April 2013, the Board requested a VHA opinion to address the documented January 1981 treatment in service for diagnosed myofascitis (for pain in the intrascapular region after lifting a 70 pound sheet metal plate), as well as his contention that his back condition was merely aggravated by the 2006 incident. A June 2013 VHA opinion from Dr. M.H., an orthopedic surgeon, reflects that he opined that it is more likely than not that the "well documented specific back injury event in 2006" was the actual cause of the Veteran's symptoms. The examiner explained in his letter that the treatment for myofascial pain in service and for the scrape near the scapula involved the upper back area of T6 and T7, which he noted was anatomically very remote to the L5 and S1 level, and that it was extremely unlikely that an injury in the area of T6 and T7 would develop into a problem at L5-S1, where he underwent a laminectomy with removal of a herniated disc after the 2006 injury. With regard to the Veteran's claimed low back disability, in light of the above opinions of the April 2009 and June 2013 VA examiners, the Board finds that the preponderance of the evidence is against a finding that the Veteran has low back disability that is related to service. As explained above, both VA examiners attribute the Veteran's low back disability to his post-service 2006 back injury. The Board further finds very poignant the explanation by the June 2013 VHA examiner that the injuries in service were to the T6 and T7 area, which is anatomically remote to the low back, L5 and S1 area. The Board notes that there is no medical opinion of record that contradicts the opinions of the VA examiners, and there is otherwise no medical evidence of record tending to indicate that the Veteran's low back condition may be related to service. Rather, even the VA treatment records note that the Veteran's chronic back pain is due to his 2006 work injury. See, e.g., VA March 2009; February 2010 (problem list - "herniated disc and left sciatica after work injury in March 2006"). The Board acknowledges that certain private treatment records reflect the Veteran's reported history of injuring his back in service. See, e.g., Multnomah County Health Department, December 2011. The Board also acknowledges that certain VA infectious disease treatment records (relating to treatment for an unrelated disease) include a list of active conditions, including chronic low back pain, and that he injured his back in the Navy and that it was exacerbated in a workman's compensation (2006) injury. See, e.g., March 2009, October 2009, February 2010. The Board notes, however, that the mere transcription of lay history by a medical professional does not transform it into competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995). The Board emphasizes that it is clear that the VA infectious disease record notations were based on a history by the Veteran because the treatment rendered was wholly unrelated to his claimed back disability, and no objective findings or other rationale were noted. The Board also acknowledges that the Veteran has reported, at times, experiencing back pain since service. The Board finds, however, that these reports are not credible in light of the Veteran's contrary report to a treating physician, Dr. S.G., in July 2006. The July 2006 record reflects that the Veteran admitted that "he saw a doctor in the Navy for low back pain in 1979 or 1980 at the latest and has not had problems since," but that he had been experiencing back pain and left leg pain since April after jumping off a dump truck of his employer. The Board notes that, generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992). With regard to the Veteran's claimed left lower extremity radiculopathy, as explained above, service connection for the Veteran's claimed back condition is denied herein. Therefore, there can be no service connection for any left lower extremity radiculopathy as secondary to (as caused or aggravated by) any low back condition. The Board further adds that the Veteran has not alleged direct service connection in this case, and the Board is not required to address every possible theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) Therefore, the Board finds that a preponderance of the evidence is against the claim for service connection for left lower extremity radiculopathy. With regard to the Veteran's claimed hip disability, the Board acknowledges that the April 2009 VA examiner opined that the Veteran had a normal left hip. At the same time, the Board acknowledges that a more recent private radiological record dated in November 2011 from the Oregon Health and Science University reflects an impression of mild degenerative changes in both hips. The Board also acknowledges the Veteran's complaints of left hip pain. See, e.g., Private Treatment record, Dr. S.G., September 2006. Even if the Board were to concede some diagnosed left hip disability, because service connection for the Veteran's claimed low back condition is denied herein, there can be no service connection for any left hip disability as secondary to (as caused or aggravated by) any low back condition. In summary, the Board concludes that the preponderance of the evidence is against granting service connection for a low back disability, left lower extremity radiculopathy as secondary to a low back disability, and for a left hip disability. The benefit-of-the-doubt rule is not for application, as there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for left lower extremity radiculopathy as secondary to a low back disability is denied. Entitlement to service connection for a left hip disability as secondary to a low back disability is denied. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs