Citation Nr: 1327976 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-07 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral sciatica (radiculopathy of the lower extremities) to include as secondary to a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1983 to December 1987; he also had service in the United States Naval Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. FINDINGS OF FACT 1. The Veteran does not have a low back disability that is causally related to his active service. 2. The Veteran does not have sciatica that is causally related to his active service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or related to active military service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Bilateral sciatica was not incurred in or related to active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in August 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. In compliance with the duty to notify, the Veteran was informed in the August 2008 letter of the criteria for assignment of a disability rating and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence of record includes VA treatment records, a VA examination report, and statements on appeal. There is no indication that there is outstanding available evidence that is pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159, see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA evaluation of the low back with nexus opinion was obtained in June 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims file and physical examination findings. The opinion considered all of the pertinent evidence of record at the time, to include the Veteran's medical records and statements, and provides a rationale for the opinion stated. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims The Veteran seeks service connection for low back disability and for sciatica, which he contends are related to service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may be presumed for certain chronic diseases, such as arthritis, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. § 3.307, 3.309(a) (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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"). The Veteran's service treatment reports do not reveal any complaints or medical findings of low back disability or sciatica, including on separation medical history and medical examination reports in August 1987; his spine and lower extremities were normal on examination in August 1987. He did complain of leg cramps on his August 1987 medical history report. There were no complaints or medical findings of low back disability or sciatica on medical history and medical examination reports for the Reserves dated in September 1989 and February 1992. Medical records dated from December 1991 to July 2003 from Mark Stevens., D.C., are on file. According to a December 1991 medical report, the Veteran complained of upper back disability. He reported a history of low back problems in 1989 and 1990. Most of these records involve problems with the cervical and thoracic spine. The assessments in February 1996 were myositis, cervical and thoracic subluxation. The assessments in August 1998 were myositis; cervical, thoracic, and lumbar subluxation. VA treatment reports dated from June 2008 through December 2009 reveal that the Veteran denied a history of arthritis, back, or joint pain in June 2008. Also on file are treatment reports from Ryan Johnson, D.C., dated from August to November 2008. The Veteran complained of low back pain radiating into his left hip and buttock. Degenerative disc disease of the lumbar spine was diagnosed. The Veteran said that his low back had been injured on several occasions over the previous 20+ years. According to an April 2010 statement from A. F., who served with the Veteran aboard the USS FOX during the summer of 1987, the Veteran fell down a ladder and injured his back during service. The Veteran complained on VA back evaluation in June 2010 of intermittent low back pain that sometimes radiated into the upper back area. He gave a history of falling off a ladder approximately four feet in August 1987, for which he was given Motrin. He noted subsequent chiropractic treatment. Back pain ranged from level 3 to 7 on a scale of 1 to 10, with 10 being the most severe pain. He did not use a cane or back brace and was not taking any medication for his back. The examiner noted that the Veteran was very non-descriptive when asked about his sciatica. He was unable to provide a detailed history of how long he had had sciatic-type pain. He denied any actual paresthesia or dysesthesia. Physical examination of the back revealed mild scoliosis. There was no tenderness, muscle spasm, pain in the sciatic notch, or sacroiliac joint pain. Range of motion included flexion to 90 degrees, extension to 25 degrees, and bilateral side bending and rotation to 30 degrees. There was no additional impairment after repetitive testing, although the Veteran complained of pain and stiffness at the extremes of movement. X-rays of the low back in June 2010 showed mild facet arthropathy, mild degenerative disc disease (DDD), and grade 1 spondylolisthesis. The assessments were DDD, spondylolisthesis, no objective evidence of sciatica, and severe pes planus. After review of the evidence on file and examination of the Veteran, the examiner concluded in June 2010 that the Veteran's current back disabilities were not caused by or the result of service because there was no evidence of a low back disability in service or on evaluations in 1989 and 1992, because the April 2010 buddy statement indicated an acute and transitory injury with no notation of treatment, and because the Veteran incurred multiple rib fractures and a pneumothorax in a train accident in 2004 that more likely accounted for the Veteran's current back problems than the acute and transitory back injury in service. The examiner also noted that the Veteran's grade 1 spondylolisthesis might be congenital. According to a July 2010 addendum to the June 2010 VA examination report, the examiner noted that he could not provide the etiology of the spondylolisthesis without resorting to speculation because he had no earlier X-rays to compare to the June 2010 films. Since the examiner has described what is missing that would allow for a non-speculative opinion to be provided, the Board finds that the opinion is sufficient. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Based on the above evidence, the Board finds that the Veteran does not have either a low back disability or sciatica due to service. There were no complaints or relevant adverse findings in service, including on separation medical history and examination reports in August 1987. There were also no low back or radicular complaints on medical history and examination reports dated in September 1989 and February 1992. Moreover, the June 2010 VA nexus opinion, which is based on both a review of the claims file and a physical evaluation and which contains supporting reasons for the opinion, is probative evidence against the claims. The examiner noted that there was no medical evidence of a chronic low back disability in service or soon after service discharge and that there was no objective evidence of sciatica. Although the December 1991 report from Dr. Stevens, in which the Veteran reports low back pain in 1989 and 1990, was added to the claims file after the June 2010 VA opinion, the Board finds that because the December 1991 report does not link low back disability to service and does not contain a diagnosis of chronic low back disability, it would not change the June 2010 VA nexus opinion. With respect to sciatica, the Board notes that sciatica was not diagnosed prior to VA evaluation in June 2010 and that there was no objective evidence of sciatica found on VA examination in June 2010. As such, the Board finds that there has been no demonstration of sciatica at any time during the appeal period. Service connection may not be established in the absence of demonstration of current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement for a current disability is met if a disability has been present at any point during the claim period). Consequently, service connection for low back disability and for bilateral sciatica is not warranted. The lay statements from the Veteran and from A. F. have been taken into consideration in this decision. Although the Veteran is competent to report his subjective problems, and A. F. is competent to report his observations in service, the Veteran, who has no medical training, is competent to diagnose or opine that he has a chronic low back disability and sciatica due to service. The Board notes that A.F.'s statement refers to a low back injury in service but does not contend that the Veteran's current low back disorder is due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving the etiology of a back or neurologic disability. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for bilateral sciatica is denied. ____________________________________________ ROBERT C. SHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs