Citation Nr: 1326543 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-45 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of a lumbar spine injury. WITNESSES AT HEARING ON APPEAL The Veteran and D.S. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). This matter arises to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that determined that new and material evidence had not been submitted and declined to reopen a prior service connection claim that had been denied by the Board in December 2008. The Board remanded the claim for development in August 2012. In May 2013, the Board reopened the claim and remanded it for development. In August 2013, the Veteran asked that the issue be characterized as one of service connection for residuals of a back injury, rather than service connection for degenerative joint disease. He reasoned that his back is disabled by injury, not by disease. The Board will honor the Veteran's request and has recharacterized the issue, as shown on page one. FINDINGS OF FACT 1. The Veteran's Service Treatment Reports (STRs) reflect a low back strain in 1954. 2. The medical evidence for and against service connection for residuals of a low back injury remains in relative equipoise. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist or compliance with remand instructions does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. The STRs reflect that the spine was sound at entry in July 1951 and at exit in July 1955; however, the STRs do reflect treatment for a low back strain in August 1954, after lifting a heavy bag. The Veteran's treatment regimen included heat, medication, bed boards, and a profile from further heavy lifting. A week later, a follow-up report mentions "Doing well," but offers no specific information. The STRs also reflect that the Veteran injured his right shoulder, but those treatment reports do not mention the low back. He underwent entrance and exit physical examinations in June 1958 and July 1959 for a subsequent period of active service. Those reports reflect that the spine was normal. The Veteran submitted his original claim for benefits in April 1998. He reported that he had hurt his back playing football in September 1958 and that he received treatment at Columbus Air Force Base Hospital, Georgia, in September 1958. He reported more recent treatment from 1995 to the present at the Memphis, Tennessee, VA Medical Center. The RO obtained VA treatment reports that include a May 1995 VA emergency room report of low back pain for two weeks. The paraspinal muscles were tender, but X-rays were negative. The impression was lumbosacral strain. Another VA out-patient treatment report notes treatment for low back pain in August 1997. That report mentions worsening arthritic pain. A May 1998 VA orthopedic compensation examination report reflects a diagnosis of severe lumbar spine degenerative joint disease, but offers no etiology. In September 2002, the Veteran reported that his back condition began during active service and was re-injured after active service. A September 2003 VA neurosurgery report and magnetic resonance imaging (MRI) study mentions bilateral pars defect at L5 with approximately 25 percent subluxation of L5 on S1, and mild stenosis at L4-5. No etiology was supplied. A January 2005 MRI study from The Imagining Center showed extensive lumbar spine degenerative disc disease and chronic spondylolisthesis. In March 2006, the Veteran submitted several medical articles addressing the cause of spinal disorders. One article notes that repetitive lifting injuries typically can lead to lumbar spine damage. Another article notes that osteoarthritis can be caused by age, hereditary conditions, joint injuries, obesity, and other disease processes. Significantly, the article notes that osteoarthritis begins slowly and often the pain fades and then returns over time. Furthermore, not everyone with osteoarthritis has pain, according to the article. In March 2006, the Veteran submitted written statements from five individuals who, over the years, heard the Veteran attribute his low back pain to active service. In May 2006, A. Kerby, M.D., had this to say: [The Veteran] is a 73 yr. old...male whom I have come to know over the years. I have reviewed this man's imaging studies...as well as some older records...from VA as well as some much older records from his days in the service...There is [a] basis in his medical record of previous back pain noted at L2, L3 with a positive exam while in the United States Air Force in August 1954 for which he was duly treated...I believe this man does have worsened lumbar spondylosis and degenerative disc disease because of previous traumas in the service...I hope this letter has been somewhat helpful, please give [the Veteran] any due consideration in his case and application. A July 2006 VA compensation examination report reflects that the Veteran reported that the initial lumbar spine injury occurred in the Air Force in 1954. He reported a later injury in a motor vehicle accident in the 1980s. The impression was L5-S1 degenerative spondylolisthesis with spinal stenosis. The physician found it unlikely that the disorder is related to a single episode or lumbar strain in 1954. The rationale is that the Veteran made no claim at exit from active service and there is no history of a residual spine difficulty. However, the physician also penned a somewhat contradictory statement. The physician reported, "In addition to this, he does have a motor vehicle accident, which may have aggravated his injury, noted in the late 1980s." In October 2008, M. Schnapp, M.D., reported, "This gentleman has had problems with his low back for many years. He was injured in the Army. Since then, he has had severe pain, which is all the way across his back and radiates into the hips and to the buttocks." In May 2012, the Veteran testified before the undersigned Veterans Law Judge that he hurt his back in service lifting a 50-pound bag. He felt pain at that time. Since then, "...All thru the years, I-I worked through the pain." In June 2012, the Veteran submitted a statement from J. Martin Sr., D.C. Dr. Martin reported, "I treated [the Veteran] in 1963 for lower back pain, Sciatica, and pain to the foot and toes. To my knowledge, he has had the problem since the service in 1954. He lifted something and injured his back, and he has been bothered with it since." In February 2013, a VA physician examined the Veteran and offered a nexus opinion. The physician found it unlikely that lumbar degenerative joint disease is related to active service. The rationale is that degenerative joint disease can be the result of trauma, but there was no evidence of "traumatic fracture or ligamentous instability that, left untreated, would have resulted in his current complaints of back pain." In April 2013, C. Currie, M.D., a radiologist of The Imaging Center, reviewed pertinent medical records and obtained fresh MRI images. Dr. Currie then noted that an earlier MRI study showed bilateral pars interarticularis defects at the L5 level. Dr. Currie then explained: ...The pars intra-articularis defects are a chronic process and usually occur in adolescence or teenage years or early adulthood but would predispose to chronic low back pain and would contribute to the patient's moderate spinal stenosis at L5-S1 and at L4-5. All of the other changes in this patient are chronic degenerative disc disease and are due to the patient's age and his mild scoliosis of about 15 degrees convex to the left at the L3-4 level. In May 2013, the Board considered the April 2013 report from The Imaging Center, found it to be new and material evidence, and reopened the service connection claim. The Board remanded the case, noting that the Veteran had not waived his right to initial RO review of the MRI report. The Board requested that the February 2013 VA examining physician review the recent evidence and again address service connection for the lumbar spine. In July 2013, the February 2013 examining VA physician reviewed the medical history and offered a negative nexus opinion. The VA physician did not mention the April 2013 private MRI report, nor did the physician address whether the showing of a pars interarticularis defect would change the ultimate opinion. In August 2013, VA's Appeals Management Center (hereinafter: AMC) issued a supplemental statement of the case (SSOC) addressing service connection for degenerative joint disease of the lumbar spine. This SSOC is inadequate, as it does not mention, discuss, or otherwise consider the private April 2013 MRI study. Inadequacy of an SSOC normally requires another remand. 38 C.F.R. § 19.31 (b) (1), (2), and (3). In this case, however, the Board will proceed with adjudication, as it does not result in unfair prejudice to the Veteran, because it is favorable. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); also see VAOPGCPREC 6-92. 57 Fed. Reg. 49744 (1992). Concerning the etiology of lumbar spine degenerative disc disease, the medical evidence set forth above is clearly in controversy. The Board's role is to assess the credibility and weight to be given to this evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The favorable medical evidence includes the medical articles mentioned above. The Court has stressed that the Board is free to cite recognized medical treatises in its decisions that clearly support its ultimate conclusions. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The medical article that traces the medical progress of osteoarthritis notes that osteoarthritis begins slowly, may fade, but then returns. This could account for years of no symptoms following a lower back injury. Dr. Kerby's May 2006 nexus opinion is quite favorable and it is persuasive, as it is based on accurate facts and is supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Dr. Schnapp's opinion of October 2008 is favorable, but has little persuasive value because no rationale was provided. Dr. Martin's June 2012 opinion is favorable, is based on correct facts, and contains supporting rationale. Thus, it will be accorded weight in the matter. The lay evidence must also be accorded weight in the matter. The Veteran's testimony of symptoms dating back to active service is competent, credible, and is supported, ultimately, by his private treating physicians. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Likewise, the statements of the five competent, credible lay witnesses must also be accorded a measure of weight in the matter. Turning to the negative medical evidence, the persuasive value of the July 2006 VA medical opinion is lowered because the physician appears to concede that a post-service back injury may have aggravated an earlier injury. The physician failed to address why this aggravation would not warrant service connection. The February 2013 VA medical opinion is negative; however, the rationale is weak. The physician explained that there are only two possible etiologies for degenerative joint disease: that of traumatic fracture, or ligamentous instability. Other medical evidence of record calls this opinion into question, as several possible causes for degenerative joint disease are discussed elsewhere in the claims files. The July 2013 VA medical opinion is supported by a plausible rationale. The physician found that it would have required multiple injuries in service to produce the current degenerative joint disease. Although the physician did not address what, if any, effect pars interarticularis would have in this case, the opinion is based on correct facts and is otherwise supported by rationale. It must therefore be accorded weight in the matter. One medical opinion is essentially neutral. Dr. Currie's April 2013 opinion attributes degenerative disc disease to aging and mild scoliosis, but also raises the question of whether a congenital condition (pars interarticularis) existed prior to entry into active service that would pre-dispose the Veteran to injury during active service. That portion of the opinion could be viewed as favorable. Because the favorable and unfavorable etiology opinions cancel each other, the opinion can be accorded no probative weight in the matter. Because there is an approximate balance of positive and negative evidence in this case, after considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. Service connection for degenerative joint disease of the lumbar spine will therefore be granted. ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine is granted. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs