Citation Nr: 1325998 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 06-18 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to service-connected fibromyalgia with irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Air Force, with active service from August 1993 to December 2000 and subsequent periods of INACDUTRA. This case comes before the Board of Veterans 'Appeals (the Board) on appeal from an August 2004 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Columbia South Carolina. In that rating decision, the RO declined to reopen a previously denied claim for entitlement to service connection for low back disorder. Jurisdiction now resides with the RO in Nashville, Tennessee (RO). The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Nashville RO in July 2010. The Veteran was provided an opportunity to set forth her contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In December 2010, the Board found that new and material evidence had been received to reopen the previously denied claim and then remanded the underlying matter. The Board again remanded the matter on appeal in November 2012. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran's spina bifida occulta at T10 to T12 is a congenital defect and the evidence does not show additional disability from a superimposed disorder in service. 2. The preponderance of the competent evidence of record is against a finding that the Veteran's current low back disorder (currently identified as spondylosis) had an onset in service or within the first year after service, or that it is related to her in-service complaints of low back pain. 3. The probative medical evidence of record does not indicate that the Veteran's current low back disorder is proximately caused or aggravated by her service-connected fibromyalgia with IBS. CONCLUSION OF LAW The criteria for service connection for low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, and 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Concerns As noted in the Introduction, the Board remanded the Veteran's low back disorder claim in December 2010, and again in November 2012 for additional evidentiary development. In particular, the Board instructed the RO (via the AMC) in December 2010 to schedule the Veteran for a VA examination so that the nature and etiology of any diagnosed low back disorder could be addressed. The Board also instructed that RO obtain outstanding records of identified in-service treatment, in particular, records regarding a spinal tap procedure at Eglin Air Force Base and identified private treatment records from Vanderbilt University Medical Center. Notably, the identified private treatment records were obtained with the Veteran's assistance and associated with the claims folder. Attempts were made to obtain outstanding service treatment records from Eglin Air Force Base but were unsuccessful. A June 2012 memorandum to the claims folder details the actions taken in attempt to obtain the outstanding service treatment records. The Veteran was notified of the unavailability of the service treatment records from Eglin Air Force Based, and she submitted her own copies of treatment for a spinal tap performed in March 1996. The Veteran was provided with a VA examination in January 2011. In that examination report, the examiner found that there was no evidence of a current disability. However, the examiner failed to discuss the previous diagnosis of spina bifida identified during a previous VA examination. As such, the Board remanded the Veteran's claim again in November 2012 so that the Veteran could be afforded another VA spine examination to determine the nature and etiology of her claimed low back disorder, to include identifying her previous diagnosis of spina bifida. In January 2013, the Veteran underwent another VA spine examination. In that examination report, the examiner identified the nature and etiology of the Veteran's current low back disorder. The examiner also specifically determined that the Veteran's spina bifida was a congenital defect. The examiner provided comprehensive medical statements in support of the medical conclusions. The AMC then readjudicated the Veteran's cervical spine condition claim in a March 2013 supplemental statement of the case (SSOC). Thus, the Board's prior remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). VA sent a letter to the Veteran in December 2008 that addressed the notice elements concerning her claims. The letters informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to her and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to her claims, VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, and the Veteran's own statements. The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged. Moreover, the Veteran has been afforded appropriate VA spine examinations in June 2004, January 2011, and January 2013. While both the 2004 and 2011 VA examination reports contain some deficiencies that detracts from the adequacy of those reports, the report of the January 2013 VA examination demonstrates that the medical examiner reviewed the evidence of record and rendered an appropriate opinion based on the question presented by the Board. This opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. The Board finds that this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. However, VA's General Counsel has held there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for a low back disorder. She reports that she first experienced low back problems during her period of service, and she believes that her current low back problems are related to those in-service complaints. In the alternative, she asserts that her current low back disorder is proximately due to her service-connected fibromyalgia with IBS. A review of the Veteran's service treatment records shows that she complained of low back pain twice during her period of service and she underwent a lumbar spinal tap for diagnostic purposes. A January 1994 service treatment note shows that the Veteran present with complaints of low back pain and occasional low abdominal pain for the past two to three weeks. Her menstrual history was noted and findings from clinical evaluation revealed no low back abnormalities. The Veteran was treated with Motrin. In March 1996, the Veteran underwent a lumbar spinal puncture, in which a small needle is inserted into the fluid in the spinal cord and a sample is taken. A July 1998 service treatment note shows that the Veteran complained of back pain for two days. Subsequent service treatment records do not show any complaints, treatment or diagnosis for low back problems. On the October 2000 report of medical history at the time of separation, the Veteran denied any history of recurrent back pain. Just prior to her separation from service, the Veteran was afforded a VA general medical examination in November 2000. The examination report shows that the Veteran reported that she experienced low back pain during her period of service and she was treated with Motrin. X-ray of the lumbar spine revealed no abnormalities. Based on the findings from clinical evaluation, the Veteran was assessed with chronic back strain. In June 2004, the Veteran was afforded a VA spine examination. In the examination report, the examiner noted a review of the claims folders. The Veteran complained of recurrent low back pain. Physical examination revealed decreased range of motion in the lumbar spine with findings of slight painful motion. There was no evidence of tenderness. X-ray film of the lumbar spine showed findings of spina bifida occulta at T10-T12, but otherwise, no abnormalities in the lumbar spine. The Veteran was diagnosed with lumbar strain. The VA examiner opined that it was less likely than not that the Veteran's low back complaints are secondary to her service-connected IBS. The examiner did not discuss the issue of direct service connection. Subsequent VA and private treatment records show that the Veteran continue to complain of recurrent low back pain, however, x-ray films continued to reveal no abnormalities. See October 2005 VA lumbar spine x-ray report (normal); see also August 2010 private lumbar spine x-ray report (normal). In January 2011, the Veteran was afforded another VA spine examination. This examination report shows findings of tenderness, painful motion and reduced range of motion in the lumbar spine. After examination of the Veteran and consideration of her medical history, the VA examiner diagnosed the Veteran with "fibromyalgia with neck and back involvement." He thereafter concluded that it is more likely than not that the Veteran's current neck and low back conditions are a manifestation of her current fibromyalgia. The examiner's rationale for his conclusion was based on his review of medical literature and his finding that fibromyalgia is understood to involve neck and low back muscles. However, the examiner did not address whether the Veteran's previous diagnosed spina bifida is a congenital disease or defect. The findings from a subsequent January 2011 VA x-ray lumbar spine film revealed lumbar spondylosis. Pursuant to the Board's November 2012 remand directives, the Veteran was provided with another VA spine examination in January 2013. That examination report shows a diagnosis of lumbar spondylosis. The examiner noted that the Veteran reported that she sought treatment for low back pain during her period of service. Based on a review of the claims folder, the Veteran's reported history and the findings from clinical examination, the VA examiner opined that it was less likely than not that the Veteran's low back disorder was incurred in or caused by her period of service, to include her in-service low back complaints. The VA examiner supported this medical conclusion by noting that a review of the service treatment records did not show any evidence of a back injury and the in-service complaints of low back pain likely stemmed from menstrual and abdominal problems. The VA examiner further opined that the Veteran's low back disorder was less likely than not proximately due to or the result of her service-connected fibromyalgia with IBS. The VA examiner noted that there is no medical connection between lumbar spondylosis and fibromyalgia and IBS. With regard to the diagnosis of spina bifida, the VA examiner noted that the Veteran's spina bifida clearly and unmistakably existed prior to her period of service, and it was clearly and unmistakably not aggravated beyond its natural progression of the disease by an in-service injury, disease or illness. The examiner noted that spina bifida is a congenital defect and not a congenital disease. The examiner further noted there was no documentation in the service treatment records of an incident or injury that would have aggravated her congenital spina bifida. Here, the Veteran claims entitlement to service connection for low back condition, to include as secondary to service-connected fibromyalgia with IBS. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. With respect to element (1), current disability, the Board initially notes that the evidence of record reflects a diagnosis of spina bifida occult at T10 to T12 based on the June 2004 x-ray film. Crucially however, the January 2013 VA examiner explained that the Veteran's spina bifida was a congenital defect. As noted above, relevant regulations state that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Therefore, service connection may not be established for spina bifida occulta. In spite of the above, service connection for a congenital disability may be awarded if the disability is aggravated by superimposed disability during active service. VAOPGCPREC 82-90. In this case, there is no evidence of aggravation of the congenital spina bifida by way of superimposed injury. Although the Veteran reported that she experienced low back pain during service, and she underwent a spinal lumbar tap in 1996, the February 2013 VA examiner opined that her spina bifida was clearly and unmistakably not aggravated beyond the natural progress of the disease by any incident or injury inservice. This medical opinion was based on a review of the claims folder, the Veteran's reported history, and findings from clinical examination, and supported by rational statement. Moreover, the Veteran denied any recurrent back problems on her October 2000 report of medical history. The competent evidence of record does not demonstrate aggravation of the congenital spina bifida by way of superimposed injury. See 38 C.F.R. § 3.306. Thus, service-connection must be denied for spina bifida. The medical evidence of record also reflects diagnoses of chronic lumbar strain, lumbar spondylosis, as well as chronic low back pain during the period under appeal. See VA treatment records, as well as the reports of the June 2004 and February 2013 VA examination report. It is clear that element (1), current disability, is satisfied on this basis. With respect to Hickson element (2), the Board will separately address in-service disease and injury. Concerning in-service disease, the service treatment records are silent with regard to complaints, treatment, or diagnosis of a chronic low back disorder. While the November 2000 VA general medical examination shows a diagnosis of chronic lumbar strain, the x-ray films revealed no abnormities at that time. Notably, the November 2000 X-ray studies do not contain a finding of arthritis or any other degenerative changes of the lumbar spine. Moreover, the medical evidence does not show manifestations of spondylosis until 2011, which comes a decade after the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. Thus, as service connection for arthritis of the low back is not shown within one year of the Veteran's separation from service, service connection on a presumptive basis is not warranted. That being said, the Board cannot ignore the Veteran's in-service complaints of low back pain or the diagnosis of chronic lumbar strain during in the November 2000 medical examination which was conducted while the Veteran was on active duty. Moreover, the record does show that the Veteran has been awarded service-connection for fibromyalgia with IBS, and the Veteran contends that her current low back disorder is secondary to her service-connected disability. Therefore, the second Hickson element has arguably been met with respect to in-service injury. With respect to element (3), nexus or relationship, the record lacks any medical evidence that links the Veteran's current low back disorder and her period of service. Indeed, the January 2013VA examiner provided medical opinions that heavily weigh against the Veteran's claim that her currently diagnosed low back disorders are related to service. The VA examiner opined that it was less likely than not that the Veteran's current lumbar spondylosis is related to her period of service, to include her in-service complaints, because the service treatment records did not show any evidence of a back injury and her in-service complaints of low back pain likely stemmed from menstrual and abdominal problems. There is no medical opinion to the contrary of record. With respect to the Veteran's alternative claim that her low back disorder was caused or aggravated by her service-connected fibromyalgia with IBS, in order to prevail satisfy element (3), there must be evidence of nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin, 11 Vet. App. at 512. There is no medical opinion of record that links the Veteran's low back disorder to her service-connected fibromyalgia with IBS. On the contrary, the January 2013 VA examiners stated that based on a review of the medical evidence of record, including the Veteran's reported history, that the Veteran's low back disorder was less likely as not caused by or aggravated by her fibromyalgia with IBS. The examiner supported the medical conclusion by noting that lumbar spondylosis was not caused by fibromyalgia and IBS. The Board finds the January 2013 examination report to be highly probative as it was based on a thorough review of the Veteran's medical history and cited to the relevant evidence of record. The Veteran's assertions and statements are the only evidence relating her low back disorder to her period of service, to include as secondary to her service-connected fibromyalgia with IBS. The Board has considered these statements. Lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the Veteran is not competent to render a diagnosis or to opine as to the etiology of her low back disorder. The Veteran is not a medical professional, and therefore, her beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (under certain circumstances, lay person is competent to identify a simple medical condition). While the Veteran is not competent to provide a medical opinion indicating that her current problems are related to service, the Veteran is competent to report her experience and symptoms since service. The Board also acknowledges the competence of the Veteran's statements that she has had low back problem since her period of service. These are competent recitations of facts as she recalls them, but they are not competent medical opinions linking the current underlying low back pathologies to service. While her statements are of some probative value, the Board ultimately places far more probative weight on the conclusions of the competent health care specialist as to the etiologies of her underlying low back disorder. Lastly, as noted above in the legal criteria above, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service-connection element for certain chronic diseases, including arthritis, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Savage, 10 Vet. App. at 495-97. Indeed, the Veteran has asserted at times during the appeal period that her current back disability began in service and has continued since her separation from service. However, as discussed above, while the Veteran is competent to report her own observable symptomatology such as back pain and the onset as to those observable symptoms, she is not competent to attribute that symptomatology to a diagnosis of spondylosis. Such findings of diagnosis and etiology require medical expertise that extends beyond the Veteran's competency. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's low back disorder had their onset in service or are otherwise related to her period of service, to include as proximately due to her service-connected fibromyalgia with IBS. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER Entitlement to service connection for low back disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs