Citation Nr: 1327031 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-02 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to June 1979 and August 1979 to August 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board notes that the Veteran filed a claim to reopen entitlement to service connection for flat feet in July 2009. The November 2009 rating decision failed to adjudicate the Veteran's claim for service connection for flat feet. In January 2010, the Veteran filed a Notice of Disagreement (NOD) with the November 2009 rating decision. The Board notes that the January 2010 NOD encompasses the Veteran's claim for service connection for flat feet and appellate review was initiated. See Isenbart v. Brown, 7 Vet. App. 537, 540. In March 2010, the RO issued a rating decision that denied reopening the Veteran's claim for service connection for flat feet. The issue of service connection for flat feet was included on the October 2010 Statement of the Case (SOC). On his December 2010 VA Form 9 the Veteran checked the option that he was only appealing the listed issues and only listed service connection for chronic degenerative disc disease and degenerative arthritis of the lumbar spine. Thus, the Board does not have jurisdiction over the issue of reopening the claim for service connection for flat feet. As such, only entitlement to service connection for degenerative disc disease of the lumbar spine with degenerative arthritis is presently on appeal. In March 2011, the Veteran and his wife testified at a local hearing before a Decision Review Officer (DRO). Due to electronic or user error a recording of the hearing is not available. A March 2011 Report of Contact shows that the Veteran and his representative were notified of the unavailability of the hearing recording and transcript. The Veteran and the Veteran's representative declined another DRO hearing and agreed that the testimony of the Veteran and his wife was adequately noted in the DRO's notes associated with the claims file. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran's low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis, is a result of an injury or disease associated with his active service. CONCLUSION OF LAW A low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis was not incurred in or aggravated by active service and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements were accomplished in a letter sent in July 2009 prior to the initial rating decision. This letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, post-service VA and private treatment records, and a March 2011 DRO hearing summary have been associated with the claims folder. The Veteran was provided with a VA examination in November 2009 and VA a corrective medical opinion in November 2011. The Board finds that these reports and medical opinions, when viewed as a collective whole and considered in the context of the existing evidence of record, provide sufficient facts for the Board to adequately decide the claim. In rendering the later medical opinion on the claim, the November 2011 VA examiner addressed the essential contentions of the claimant, was informed by a review of his claims file, and presented his opinion in the context of the Veteran's pertinent clinical history. The Board thus finds the November 2011 VA medical opinion to be adequate for purposes of adjudicating the claim for a low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Any deficits in the November 2009 medical opinion have been rectified by the subsequent corrective medical opinion obtained thereafter. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for arthritis may also be established by evidence showing chronicity and a continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The provisions of 38 C.F.R. § 3.303(b) provide that with chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity at some later date. 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." When a disease identity such as arthritis is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the disorder noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Background The Veteran's March 1975 enlistment examination was negative for any complaints or diagnosis of low back pain. An October 21, 1977 treatment record shows that the Veteran reported acute lower back pain after playing a basketball game three days prior. Physical examination revealed mild sclerosis and paravertebral muscle spasms. The Veteran was prescribed parafon forte, a muscle relaxant. An October 31, 1977 treatment record shows that the Veteran was again treated for muscle spasms. A March 14, 1978 treatment record shows that the Veteran reported low back pain related to the October 21, 1977 back pain. The Veteran was diagnosed with acute back pain. The Veteran was found not fit for duty and prescribed bed rest and parafon forte. A consultation request to rule out disc was also made. The March 14, 1978 consultation request shows that in the prior five months the Veteran had two episodes of acute lower back pain aggravated by sitting. The examiner noted that the Veteran had bilateral pain with leg raises. A March 17, 1978 emergency medical record shows that the Veteran was treated for back pain with no known trauma. The Veteran reported that he had the pain since October and was unable to straighten up. On physical examination the examiner noted that the Veteran was in obvious pain. The Veteran was tender in the left spine. The Veteran had 45 degrees right straight leg raise with pain and 60 degree left straight leg raise with pain. The Veteran was able to heel toe walk well. The examiner diagnosed low back pain with no evidence of acute herniation. The examiner prescribed bed rest and heat. A March 29, 1978 orthopedic consultation report shows that the Veteran reported low back pain all the way down to his knees. The Veteran reported that he was comfortable when sitting or laying down but he "hurt pretty bad" when he stood up or walked. The Veteran reported a five month history of the symptoms. The Veteran also reported that he did not recall any trauma. The Veteran also denied prior back trouble. On physical examination the examiner found right thoracic lumbar scoliosis. The Veteran had 50 degrees anterior flexion with pain, lateral flexion with pain, painful rotation both ways, and hyperextension with pain. The Veteran also had marked paralumbar spasms. X-rays revealed straightening of the lumbar lordosis. The examiner found the Veteran not fit for duty and prescribed home bed rest and the Veteran to return to clinic in two weeks. The Veteran was hospitalized from April 14, 1978 to April 28, 1978 for low back pain. The Veteran reported the symptoms began six months prior and he denied any trauma preceding his symptoms. The Veteran reported that he began to have pain in November 1977 while playing basketball. The Veteran reported that he had followed a bed rest regime at home with some slight benefit. On physical examination the Veteran's back was generally unremarkable. Back examination showed a normal curve, with no lordosis or scoliosis. On forward flexion the Veteran was able to touch his knees just distal to the patella. Lateral bends and hip tests were good, without pain. Chest and back x-rays showed no significant abnormalities. While in the hospital the Veteran was placed on bed rest with bathroom privileges for bowel movements only for ten days, and then ambulation was gradually increased. On discharge the examiner noted that the Veteran was fit for light duty and was to return to the orthopedic clinic in two weeks, however, it does not appear that the Veteran did so as there are no other references to the Veteran's low back during his first period of service. The Veterans January 1979 separation examination shows that the Veteran reported having swollen or painful joints and recurrent back pain. The Veteran also reported that he was unable to perform certain motions and assume certain positions. The Veteran explained that his back was very sore for two months and he was unable to stand up straight. The examiner noted that the Veteran was hospitalized for two weeks for a low back strain but the Veteran was asymptomatic at the time of the exam. On physical examination the Veteran's spine was found to be normal. The Veteran's August 1979 enlistment examination for the Veteran's second period of service shows that the Veteran reported he was in good health and on no medications at the time of the exam. The Veteran denied painful or swollen joints and recurrent back pain. The Veteran reported he was hospitalized for a lower back strain. The examiner noted that the Veteran was hospitalized for a lower back strain but was asymptomatic at the time of the exam. Service treatment records for the Veteran's second period of service show that the only complaint of back problems was on February 19, 1984. The Veteran reported that he had a shooting pain from his groin to his lower back. The opinion was deferred and no other reference was made to the Veteran's low back. Upon separation examination in August 1985, the Veteran reported he was on no medication at the time of the exam and was in fair health. The Veteran reported a history of recurrent back pain but denied swollen or painful joints. The Veteran reported that he was hospitalized for a back problem in 1978. The service department examiner elaborated (on the August 1985 report of medical history) that the Veteran had occasional back pain in the past but none recently. The August 1985 medical examination of the Veteran's spine yielded normal clinical findings, and the Veteran was found to be physically qualified for separation. Post-service treatment records dated February 1999 to December 2004 show that the Veteran was treated for low back pain. February 1999 and April 2000 treatment records show that the Veteran reported a past medical history of low back pain in 1977. On physical examination in April 2000, the Veteran's back was found to be mildly tender and the physician diagnosed myofascial low back pain. A post-service private treatment record dated July 2009 shows that the Veteran slipped and fell at work in March 2009. The Veteran reported that his back did not bother him at the time but two to three weeks later his back pain began to intensify and he had since had problems with his back being stiff and achy. The physician diagnosed lumbar strain status post fall in March 2009. An October 2009 private treatment record shows that an MRI revealed degenerative disc changes. The physician's assessment was lumbar disc disease and degenerative disc disease likely flared up by the Veteran's acute workman's compensation injury. The physician explained that prior to that the Veteran seemed to be doing quite well. The physician opined that the injury flared-up the Veteran's condition and that it was an acute chronic flare-up. The physician further opined that the Veteran had been compensating well before the time of the injury. The Veteran was afforded a VA examination in November 2009. The examiner diagnosed subacute flare-up of chronic degenerative disc disease and degenerative arthritis of the lumbar spine with radiculopathy of the left leg. The examiner opined that the present subacute episode of low back pain was most likely caused by or a result of the fall which occurred in March 2009. He stated that the episode of low back pain was less likely as not caused or a result of the low back pain that the Veteran experienced while he was in the military. The Veteran and his wife testified before a DRO in March 2011. As stated, a hearing transcript is unavailable but a summary of the testimony is associated with the claims file. It should be noted that the Veteran's wife is a nurse. During the hearing the Veteran and his wife testified that the claimed back condition existed prior to the intercurrent injury in 2009. They reported continuity of symptoms since his release from active duty in August 1979. They also indicated a history of treatment for back condition since discharge from active service. The Veteran noted that the consequences of the intercurrent injury were inconsistent with his current lower back disability. The Veteran also indicated that the in-service lower back problem played a significant role in the events in 2009 when he fell on the ice. In a September 2011 VA medical report, the examiner stated that the Veteran experienced an acute back strain in service which resolved after acute treatment. He stated that the nature of the episode, in the absence of trauma, was not likely to have lead to the eventual development of degenerative disc disease. The examiner opined that the Veteran's degenerative disc disease and arthritis of the lumbar spine was more likely the result of chronic wear and tear and the effects of aging. The examiner concluded that the disability was aggravated by the 2009 work injury and not a result of the back strain the Veteran experienced in service. Analysis As an initial matter, the Board finds that presumptive service connection does not apply since the record contains no evidence confirming that any arthritis of the low back was manifested to 10 percent or more within one year from the date of the Veteran's separation from such service. On a direct basis for service connection, the Board notes that at no time did any of the Veteran's treating providers relate the Veteran's in-service back strain to his current low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis. The Board acknowledges that the October 2009 private physician opined that the Veteran had been suffering from a chronic lower back condition before the March 2009 work injury. However, the private physician does not relate any chronic back condition to the Veteran's military service. Additionally, neither the November 2009 nor September 2011 VA examiners relate the Veteran's current condition to his military service. The September 2011 VA examiner acknowledged that the Veteran suffered from degenerative disc disease of the lumbar spine with degenerative arthritis before his March 2009 injury but attributed it to chronic wear and tear and aging. As such, the only opinions supporting the Veteran's claim consist of his own statements and those of his wife. The Board has considered the Veteran and his wife's contentions of continuity of symptoms since discharge from service in 1979 and treatment since service. While the Veteran and his wife are competent to report on issues of which they have firsthand knowledge, when considered with the other evidence of record, the Board finds the Veteran and his wife's statements are not credible. As stated, the Veteran's January 1979 separation examination shows that the Veteran was found to be asymptomatic for back pain. The Veteran's August 1979 enlistment examination also shows that the Veteran was asymptomatic for back pain. Service treatment records for the Veteran's second period of service from August 1979 to August 1985 are negative for complaints of low back pain with the exception of a complaint of groin pain shooting to the Veteran's back. The Veteran's August 1985 separation examination showed that the Veteran had a history of occasional back pain but had not suffered from it recently. Furthermore, post-service private medical records dated February 1999 to December 2004 show that the Veteran reported a medical history of back pain in 1977. The Board also notes that the Veteran was discharged from service in August 1985 and the evidence of record shows that the Veteran did not seek treatment for low back pain again until February 1999, almost 14 years after his separation from service. Thus, weighing the Veteran's earlier statements as reflected in his service treatment records against the Veteran's and wife's later contentions of continuing back pain since service, the Board can and does attach more credibility and probative value to the earlier service department documents because they reflect what the Veteran was experiencing at the time of his low back complaints and at service separation. The Veteran's separation examinations and questionnaires are particularly probative both as to the Veteran's subjective reports and their resulting findings, which reveal that the Veteran's symptoms of back pain in service were treated and resolved prior to each separation from service, as evidenced by the re-enlistment (1979) and separation (1979 and 1985) examination reports. As the evidence of record directly contradicts the Veteran and wife's assertions of continuity of symptoms and treatment after service these statements are afforded little probative weight. The Board has also considered the Veteran's assertion that his low back disorder is related to active service, the consequences of the intercurrent injury were inconsistent with his current lower back disability, and the Veteran's assertion that the in-service lower back problem played a significant role in the events in March 2009. While the Veteran is competent to report on the symptoms of his low back pain, it is now well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise, such as the diagnosis or etiology of musculoskeletal disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Furthermore, medical expertise is also required to determine whether the intercurrent injury was consistent with the Veteran's low back problems and whether the Veteran's in-service lower back problem played a significant role in the events in 2009. Thus, the Veteran's assertions regarding the onset and etiology of his current low back disorder are not competent medical evidence and are afforded little probative value. The Board has also considered the wife's assertion that the claimed back condition existed prior to the intercurrent injury in 2009. The Board acknowledges that the Veteran's wife is a nurse and has medical training and knowledge and is competent to report on medical issues. The Board does not dispute the wife's assertion that the Veteran's low back disorder existed prior to the March 2009 injury as the assertion is consistent with the medical evidence of record. However, to the extent that there may be a vague assertion that the low back disorder that existed prior to the March 2009 injury is related to the Veteran's service, the Board concludes that the wife's assertions are of less probative value than the September 2011 VA medical opinion. As discussed, the September 2011 VA examiner reviewed the Veteran's available military records as well as the Veteran's entire medical history. The examiner concluded that the Veteran experienced an acute back strain in service that was resolved with acute treatment. As stated, service treatment records show that the Veteran was diagnosed with back pain in 1977 and 1978 which was treated with hospitalization and bed rest. The Veteran was noted as asymptomatic at his January 1979 and August 1985 separation examinations. The examiner also concluded that the nature of the episode, in the absence of trauma, was not likely to have led to the eventual development of degenerative arthritis. The Board notes that the evidence of record shows that the Veteran denied trauma to his back in-service. The September 2011 VA examiner concluded that the Veteran's low back disorder existed prior to the March 2009 injury, which is supported by the medical evidence of record to include the October 2009 private treatment record and the November 2009 VA examination report. The September 2011 VA examiner also, concluded that the Veteran's degenerative disc disease and arthritis of the spine was more likely the result of chronic wear and tear and aging, which was aggravated by the 2009 workman compensation accident rather than being the result of the back strain the Veteran experienced in service. The examiner's rationale was that there was no evidence in the available records of treatment for a low back condition ongoing since the acute strain in service. As stated, after the April 1978 hospitalization the Veteran was asymptomatic for low back pain, other than groin pain that radiated to his low back, until February 1999. As the examiner's conclusions are fully explained and consistent with the evidence of record the Board assigns them great probative weight. In sum, the Board finds that the most competent and probative evidence fails to link the Veteran's current low back disorder to include degenerative disc disease of the lumbar spine with degenerative arthritis to service. Accordingly, service connection for the degenerative disc disease of the lumbar spine with degenerative arthritis is not warranted on any basis. See 38 C.F.R. §§ 3.303, 3.310(a) (2012). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a low back disorder, to include degenerative disc disease of the lumbar spine with degenerative arthritis is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs