Citation Nr: 1326197 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-02 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Appellant, stepson ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to September 1964. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Atlanta, Georgia. The Virtual VA claims file has been reviewed. In April 2011, the Board remanded the Veteran's claim for additional development. The Veteran was requested to submit additional information about a December 2007 back injury and was afforded a VA examination as to the etiology of the Veteran's back disorder; the RO was also directed to obtain the Veteran's Social Security Administration (SSA) records. SSA informed the RO that no records were available and the Veteran was provided a VA examination in June 2011. In August 2012, the Veteran's claim was remanded so that the Veteran could be afforded a hearing before a Veteran's Law Judge. The hearing was held in January 2013, and the Veteran and his stepson provided testimony. More recently, in April 2013, the Board remanded the Veteran's claim for additional development of the record. The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions; an addendum to the Veteran's VA examination was provided in light of the Veteran's testimony and a letter from the Veteran's treating provider. The report has been associated with the Veteran's claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998 FINDINGS OF FACT 1. A low back disorder was not manifest during service and arthritis was not manifest within one year of separation. 2. A low back disorder is not attributable to service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in June 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was afforded a VA examination, with multiple addendum opinions, responsive to the claim for service connection of a low back disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinions are adequate. Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claim, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Finally, during the January 2013 hearing before the undersigned, the Acting Veterans Law Judge clarified the issue on appeal and explained the existence of additional evidence that may have been overlooked. The actions of the Judge supplement VCAA and comply with 38 C.F.R. § 3.103. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, arthritis is presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As degenerative joint disease (i.e., arthritis) is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection At his January 2013 hearing, the Veteran testified that he injured his back in service when he fell off an Armored Personnel Carrier onto his back. He testified that he sought treatment at the time of the incident. Thereafter, he had intermittent back pain. He did not seek treatment for back pain in service because seeking medical treatment was discouraged by his supervisors. Service treatment records document a fall from an Armored Personnel Carrier in June 1963, but do not mention a back injury. The records document an injury to the Veteran's left hip at that time. The Veteran's separation examination report indicates that the Veteran's spine was normal; the contemporaneous Report of Medical History does not show any complaints related to the Veteran's back. He specifically denied arthritis, rheumatism, bone joint and other deformity. He denied lameness. VA treatment records dated October 2006 through December 2012 indicate that the Veteran was treated for chronic low back pain. In January 2008, the Veteran reported having a 20 year history of chronic, intermittent, low back pain. A February 2008 treatment record indicates that the Veteran reported that he had a little back pain prior to military service, but fell on his back through an unlocked hatch on a personnel carrier in military. He also reported that he fell in December 2007, while working as a building inspector; according to the Veteran, he fell approximately 15 feet through a floor into a basement. Radiology findings dated March 2007 were reviewed; the impression was markedly narrowed L5-S1 intervertebral disc syndrome with suggestion of partially sacralized L5 vertebral segment and multilevel chronic degenerative disc disease of the lower lumbar spine, with posterior disc bulging, spinal canal stenosis, and degenerative grade I anterolisthesis of L4, as well as bilateral neuroforamina stenosis and chronic facet arthropathy. The Veteran was initially afforded a VA examination in June 2011. The Veteran's VA clinical records were reviewed, but his service treatment records were unavailable. The Veteran reported pain in the middle of his back, radiating to the buttocks and legs, mostly on the left, since his military service. He reported self-treatment, with intermittent treatment by chiropractors and physicians, until he sought pain management through the VA in 2004. He reported that he injured his back during service, when he fell into a personnel carrier and landed on his back. Following physical examination and x-rays, the diagnosis was lumbar spine degenerative joint disease, with spinal stenosis and anterolisthesis. The VA examiner noted that the Veteran had considerable pain, but that it is less likely as not that the Veteran's current low back disorder had its onset during service or is in any way related to an in-service disease, event, or injury including the trauma to his back in the personnel carrier. The VA examiner noted that the Veteran's description of the injury is essentially a fall wherein he struck his back, which would produce contusions, but which would heal uneventfully. The VA examiner acknowledged that such a fall could cause a fracture, which could leave sequelae such as traumatic spondylosis, which could have in turn caused the Veteran's L4-S1 anterolisthesis, but pointed out that the Veteran could not have returned to duty so quickly with that sort of injury. The VA examiner also pointed out that an injury such as described by the Veteran would not produce such widespread degenerative joint disease of the entire spine. The Veteran submitted multiple letters from his treating doctor at VA. In a February 2011 letter, the Veteran's doctor opined that the Veteran had multiple injuries from the in-service fall, which caused an altered gait. According to the physician, the altered gait led to progressive degeneration of the Veteran's spine in his low back, which was exacerbated by his inability to exercise due to his injuries. The Veteran's doctor opined that it was more likely than not that the Veteran's in service fall contributed at least in part to his back problems. In a June 2012 letter, the same physician opined that the cause of the Veteran's back problems are multifactorial, but that the in service fall and hip injury more likely than not contributed to the Veteran's back problems. The doctor explained that this may have been due to prolonged alteration of the Veteran's walking mechanisms and inability to maintain good back hygiene. An August 2011 addendum was provided by the VA examiner upon review of the Veteran's service treatment records and a review of the February 2011 letter from the Veteran's treating provider at VA. According to the addendum report, the VA examiner noted that the Veteran's service treatment records merely showed an injury to the left hip and that the separation examination showed no back problems. The VA examiner noted that his conclusions from the June 2011 VA examination were unchanged, and that it is less likely than not that the Veteran's current low back disorder had its onset during active service, or is related to any disease, event, or injury during service, including the Veteran's asserted trauma during service. Following the Board's April 2013 remand, another VA examination addendum opinion was provided. The Veteran's records and claims file were reviewed. The VA examiner opined that there was no relationship or "continuity" between the Veteran's in-service left hip injury and the Veteran's current back disorder. The VA examiner further opined that the Veteran's current back disorder is not due to compensating for the Veteran's in-service left hip injury. The VA examiner noted the Veteran's August 2012 hip x-rays showed only mild degenerative joint disease, which was not the result of a trauma nearly 50 years earlier, which indicates that the Veteran's in-service left hip contusion was not relevant to the Veteran's current back disorder. The VA examiner also noted that the Veteran had no orthopedic complaints related to his back or hip at separation from service. The VA examiner further noted Veteran's December 2007 back injury, describing it as "significant." In this regard, the Board observes that the Veteran has claimed that his low back disorder, namely degenerative joint disease of the lumbar spine with spinal stenosis, is due to service. Specifically, the Veteran asserts that this disorder is due to or aggravated by a left hip contusion that the Veteran experienced in service. The Veteran's claim is limited neither by the theory that he advances nor the precise disability he identifies. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). In this case, the Veteran's claim must be denied because his low back disorder is neither caused nor aggravated by the left hip contusion or due to a disease or injury in service. Among the Veteran's diagnoses is another term for arthritis. Therefore, the provisions of 38 C.F.R. § 3.303(b) are potentially applicable. Here, no low back pathology was "noted" during service and there were no characteristic manifestations of the arthritic disease process identified during service. Therefore, section 3.303(b) does not assist the Veteran. The Board reiterates that low back pathology of the lumbar spine was not shown in service or within one year of separation. Rather, the Veteran's spine was normal upon examination at separation. We also note that the Veteran denied a history of pertinent pathology at separation. The Veteran's argument that he did not complain since that was discouraged is inconsistent with his report of other problems during service. Furthermore, his pleading is inconsistent with his sworn denial of pathology at separation. To the extent that he has reported that he had chronic low back pathology that started in service and continued, such pleading is not credible. Furthermore, there is every indication that there was a recent post-service accident that eventually led to a diagnosis in 2007. The Veteran is competent to report his experiences in service and to state that he experiences residual symptoms, including back pain, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the specific findings of the June 2011 VA examiner, and his addendum reports, indicating that the Veteran's low back disorder is not related to his service, including his in-service left hip contusion, are of greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions as etiology were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Here, there is positive and negative evidence. The Board is presented with the lay pleadings, his reports to examiners and the opinions of the examiners. Since at least one examiner has attributed the low back disorder to in-service events (to include a change in body mechanics), the Veteran's opinion is competent. However, we find the positive medical evidence to be of little probative value. In regard to altered mechanics due to the hip, we note that service connection has not been granted for a hip disorder. Therefore, section 3.310 is not applicable. Regardless the report of a change in mechanics since service is inconsistent with the lower extremity normal findings at separation. It is also inconsistent with the Veteran's denial of lameness at separation. To the extent that there are lay and medical opinions linking the remote onset of low back pathology to an in-service injury, we have found that the appellant is not a credible historian and that a medical opinion based upon an inaccurate factual predicate is equally inaccurate. The Veteran's opinion is less credible and probative than the negative medical evidence. The June 2011 VA examiner found that, as the Veteran's low back disorder did not develop until many years after service, it was not likely related to the Veteran's service; the VA examiner also found that the Veteran's degenerative joint disease was too severe to have been caused by a simple fall and contusion. The VA examiner also found that the Veteran's back disorder would not, in any way, be related to any compensation for discomfort caused by the Veteran's left hip contusion. This opinion is reasoned and consistent with the actual factual record. We find this opinion to be highly probative. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Although there are letters dated in 2011 and 2012 from the Veteran's treating provider at VA, stating that the Veteran's injuries due to the in-service fall caused an altered gait, which caused his degenerative joint disease of the lumbar spine, the Board is not bound to accept medical opinions that are based on a history based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Furthermore, the June 2011 VA examiner reviewed the claims file, examined the Veteran, and reviewed the pertinent medical literature prior to providing a clear medical opinion that the Veteran's pathology of the lumbar spine began many years after service and is unrelated to the left hip contusion and fall in service; the VA examiner found that there is simply no relationship between mild degenerative changes of the hips and the Veteran's more severe lumbar spine disorder. The VA examiner noted that the Veteran had a serious injury to his back in December 2007, related to the 15 foot fall, and that there is no relationship between the Veteran's left hip contusion in service and his current back disorder. As the June 2011 VA examiner explained the reasons for his opinion based on an accurate characterization of the evidence of record, this opinion is entitled to substantial probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). To the extent that the Veteran contends that his degenerative joint disease of the lumbar spine is related to his fall in service or anything else in service, the probative value of his general lay assertions is outweighed by the specific, reasoned opinion of the June 2011 VA examiner. The weight of the evidence therefore reflects that his low back disorder is unrelated to service. In sum, pathology of the lumbar spine was not manifest during service and arthritis was not manifest within one year of separation. Rather, there was a remote post-service onset. There is no reliable evidence linking the remote back disorder service or to a service-connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a low back disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a low back disorder is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs