Citation Nr: 1328078	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  04-40 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a low back disability, to include arthritis and to include as secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and a county officer


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to November 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  This case was previously before the Board in September 2008, December 2010 and April 2012, when it was remanded for additional development.  For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remands.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran provided testimony at an August 2004 Decision Review Officer (DRO) hearing at the RO.  The Veteran also testified at a July 2008 hearing before the undersigned Veterans Law Judge of the Board held at the RO.  Transcripts of those hearings are associated with the claims file.

In March 2012, the Veteran requested another hearing before the Board at the RO in conjunction with his appeal.  However, he later contacted the Board in April 2013 and asked that his hearing request be withdrawn and for his appeal be forwarded to the Board.  Accordingly, appellate adjudication may proceed.


FINDING OF FACT

A low back disability, to include degenerative joint/disc disease of the lumbar spine status post laminectomy, was initially demonstrated many years after service, and has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service, nor causally related to, or aggravated by, a service-connected disability.



CONCLUSION OF LAW

A low back disability, to include degenerative joint/disc disease of the lumbar spine status post laminectomy, was not incurred in, or aggravated by, active service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or aggravated by, a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Further regarding notice, in March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned in the award of the benefit sought.

The Board finds that the RO's letters dated in July 2003, March 2006, October 2008 and April 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490.  In compliance with the Board's April 2012 remand, in the April 2012 letter, the Veteran was also provided notice as to the information and evidence necessary to substantiate the claim for service connection on a secondary basis under the provisions of 38 C.F.R. § 3.310.  Even if the Veteran was not provided the necessary notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the March 2006, October 2008 and April 2012 letters followed by a readjudication of the claim in the March 2007, July 2010, January 2012, and June 2013 supplemental statements of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006).

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private treatment records, and a VA examination report with an addendum, as well as his records from the Social Security Administration (SSA).  Additionally, the claims file contains the Veteran's statements in support of his claim.  The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

The Veteran was provided a VA examination in December 2010 and an addendum was obtained in May 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  After finding that the December 2010 VA medical opinion was not sufficient, the claim was remanded by the Board in April 2012 in order to obtain another medical opinion that addresses the relationship of the Veteran's low back disability to his service or his service-connected disabilities.  In May 2012, the VA examiner provided the requested opinion.  The Board finds that the May 2012 VA medical opinion is adequate to decide the claim of service connection because the examiner reviewed an accurate history and provided nexus opinions on direct incurrence and secondary service connection bases, with adequate bases for the opinions; the Veteran's history and complaints were recorded and the examination report in December 2010 set forth detailed examination findings.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.)  Thus, further examination is not necessary regarding the issue on appeal.

Based on the foregoing, the Board finds the RO substantially complied with the Board's prior remand directives.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.

Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

The provisions of 38 C.F.R. § 3.103(c)(2)  (2012) require that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) also requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill the same duties to comply with the above the regulation.  

Here, during the DRO hearing, the Veteran was assisted at the hearing by an accredited representative from the American Legion.  The representative and the DRO asked questions to ascertain to ascertain the onset of symptoms, duration of symptoms, any nexus between current disability and service, and the existence of any pertinent outstanding evidence.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

During the Board Travel Board hearing, the VLJ identified the issue and noted the elements of the claim that were lacking to substantiate the claim for service connection.  The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between current disability and service.  The Veteran was assisted at the hearing by an accredited representative from the American Legion.  On remand, a VA examination was conducted and an addendum to the examination report was obtained; otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that has yet to be obtained.  Thus, the submission of overlooked evidence was not only suggested, but obtained.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

Generally, in order to establish service connection for the claimed disorders, there must be (1) 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in, or aggravated by, service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2012).  Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).  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 caused or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 488 (1995).

The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "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.").

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify.").

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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The Veteran asserts that service connection is warranted for a low back disability.  Specifically, he contends that he sustained a back injury while serving in Vietnam in 1969.  Through various written statements and testimony before the August 2004 DRO hearing and the July 2008 Board hearing, the Veteran indicated that he was unloading rocket boxes and a row of soldiers were passing boxes along when one soldier in front of him dropped a box on top of the one that the Veteran was already holding and he hurt his back.  He further indicated that that night he could not even move his arms, yelled for help, and was subsequently taken to the Chu Lai Hospital where he was told that he had strained a muscle and was advised of light duty and was given pain pills.  At the July 2008 hearing before the Board, the Veteran testified that Dr. H. who treated the Veteran after his civilian back injury in 1984 told him that he had had a severe back injury years ago.

Alternatively, the Veteran contends that his low back condition is secondary to his service-connected posttraumatic stress disorder (PTSD).  In a February 2012 informal hearing presentation, the Veteran's representative argued that the Veteran's back disability was caused or aggravated by his service-connected PTSD.  A medical article was submitted regarding studies showing that people with PTSD are more likely to experience physical health problems, including arthritis and pain.

Service treatment records include a notation of back trouble incurred in line of duty on a sick slip dated in August 1971.

In a report of medical history completed in July 1968 in conjunction with pre-induction examination, the Veteran reported a medical history of back trouble.  Physical examination of the spine at that time was noted to be normal.  In September 1971, the Veteran complained of back trouble but no findings were listed, and there was no indication of any back pathology on his separation examination in November 1971.

Private treatment records from the Riverside Methodist Hospital dated in December 1984 reflect that the Veteran was admitted with chronic low back pain and a diagnosis of degenerative lumbar disc disease, and underwent a myelogram which produced an impression of normal dorsolumbar myelogram.  It was reported as medical history that the Veteran had been in excellent health until October 8, 1984 when he injured his back.  It was noted that he caught a falling heavy box on his chest, which forcefully hyperextended his back.  Lumbar spine X-rays were unremarkable, with the exception of a transitional first central segment.  The final diagnoses were chronic low back pain and degenerative lumbar disc disease.

Private treatment records from the Southern Hill Hospital show that he Veteran received physical therapy for his low back.

A January 1988 private neurosurgeon's note indicates that the Veteran was found to have a herniated disc at the L4-5 level with a compression of the right L5 nerve root.  The surgeon noted as follows: 

These radiographic findings and physical findings are consistent with [the Veteran's] complaint of his injury that occurred in October 1984 when he first began to experience low back pain radiating into the right lower leg.  I cannot comment on the presents (sic) of disease prior to October 1984, but his history of injury and his physical and radiographic findings are consistent with his complaints, and they are probably related to his initial injury while working.

Private treatment records from the Riverside Methodist Hospital dated in March 1988 reflect that the Veteran underwent a partial lumbar laminectomy at L4-5 level with excision of herniated disc and exploration of L3-4 interspace.

An October 1991 SSA disability determination report stated that the Veteran sustained a hyperextension injury to the low back in October 1984; X-rays were obtained, and "he said that there was a disc."  The Veteran was hospitalized in December 1984 to undergo a myelogram but he did not know the result of this study; medication was prescribed prior to discharge although low back pain persisted over the succeeding years.  The Veteran stated that he was referred to Dr. H. and was found to have symptoms compatible with L5 radiculopathy with pattern involvement.  He eventually required an L4-5 laminectomy in March 1988.  The impression was degenerative joint disease of the lumbar spine.

At an October 2000 VA physical examination, the Veteran complained of chronic low back pain and stated that it dated back to 1984 when he had a injury on the job.  He also referred to a "minor" back injury in the Army.

In a March 2004 VA psychiatry doctor's note, the Veteran related that he injured himself while in the military when he was loading some heavy boxes.

At the August 2004 hearing before the DRO, the Veteran testified as to the history of his back injury in service.  He also stated that after a few weeks of that injury he "felt pretty good," but it started bothering him over the years.

A December 2010 VA examiner opined that it was less likely than not that the Veteran's degenerative joint disease of the lumbar spine was related to service.  She indicated that the report of medical history at the time of the Veteran's service entrance was back trouble and painful joints but the only other reference in the service treatment records to the back was a rash in 1971.  As the December 2010 VA examiner's opinion was based on an erroneous assumption, the Board remanded the case in April 2012 for another medical opinion concerning the etiology of the Veteran's low back disability, including on a secondary basis.

Medical articles submitted by the Veteran regarding PTSD and physical health suggest that compared to those without PTSD, people with PTSD are more likely to experience a number of physical health problems including, arthritis and chronic pain, among others.  One article states that people with PTSD tend to experience a variety of stressful psychological difficulties such as depression or other anxiety disorders.  It further states that a variety of factors may combine to put tremendous strain and stress on a person's body, increasing the risk for physical health problems and illness.  Another article states that one of the symptoms of PTSD is that the person becomes emotionally or physically upset when reminded of the traumatic event.  For people with chronic pain, the pain may actually serve as a reminder of the traumatic event, which will tend to exacerbate the PTSD.

In a May 2012 addendum, the examiner who conducted the December 2010 VA examination indicated that after reviewing the claims file, she found no evidence to change her opinion from 2010.  The examiner opined that the Veteran's current back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  In reaching this conclusion, the examiner noted the lack of evidence of "injury" while in service in 1971 or back complaints.  Although the examiner considered the back issues and troubles documented in service treatment records, she stated that the Veteran's back "injury" was obviously after his service separation when he sustained a back injury at work in 1984.  The examiner further stated that there was no evidence that any back trouble while in service was connected to his current back disability.

After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a low back disability.

As an initial matter, the Veteran has a current low back disability as documented by his VA examination report and treatment records.  See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  To that effect, VA treatment records dated from May 2002 through June 2013 show diagnoses of degeneration of the lumbar or lumbosacral intervertebral disc.  X-rays of the lumbar spine in October 2010 showed degenerative disc disease.  The December 2010 VA examination report with the May 2012 addendum confirms a diagnosis of degenerative joint/disc disease of the lumbar spine.

However, the Veteran's low back disability first manifested many years after service and is not related to service.  Although the Veteran reported a medical history of back trouble in July 1968 in conjunction with a pre-induction examination, no back disability or abnormality was clinically noted at that time.  When determining whether a disability or disease was incurred in service, or preexisted service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C.A. § 1111(West 2002); 38 C.F.R. § 3.304 (2012).  As no defect was clinically identified on examination in July 1968, the record does not demonstrate the existence of a back disability prior to service.  As such, his claim is for consideration on direct incurrence, and secondary service connection, bases.  Although service treatment records include a notation of back trouble in September 1971, no findings were listed and there was no indication of any back pathology on his separation examination in November 1971.  The first medical evidence of an abnormality of the low back was in December 1984, at which time the Veteran was admitted to undergo various tests with a complaint of chronic low back pain and the diagnosis was degenerative lumbar disc disease.

As noted above, the Veteran contends that he sustained a back injury while serving in Vietnam in 1969.  At his July 2008 Board hearing, the Veteran also indicated that Dr. H. who treated him after the 1984 civilian back injury on the job told him that he had a previous severe back injury.

The Veteran is certainly competent to testify as to events or symptoms capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature).  However, the Court has previously noted, the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence.  Robinette v. Brown, 8 Vet. App. 69, 77 (1995); see also Marciniak v. Brown, 10 Vet. App. 198 (1997).

However, the Board finds that the Veteran's statements as to the onset of his current low back symptoms since the claimed back injury in service are not credible because they are not consistent throughout the record.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant).  Treatment records contemporaneous with the Veteran's civilian back injury in October 1984 and prior to the filing of the present of claim of service connection are silent for any prior back injury.  Further, in the December 1984 Riverside Methodist Hospital records, a history was reported that the Veteran was in excellent health until October 8, 1984 when he injured his back.  Similarly, the January 1988 neurosurgeon's note stated that his findings were "consistent with the Veteran's complaint of his injury that occurred in 1984 when he first began to experience low back pain radiating into the right lower leg." (Emphasis added in italics).  Surgical records dated in March 1988 are of record but do not mention any back injury prior to the one in October 1984.  To the contrary, the January 1988 neurosurgeon stated that the Veteran's history of injury, physical and radiographic findings were consistent with his complaints and that they were "probably related to his initial injury while working." (Emphasis added in italics).  Moreover, the Veteran made reference only to "a minor back injury in the Army" on the October 2000 VA physical examination report.  On that VA examination, the Veteran reported that his chronic low back pain dated back to 1984 when he had an injury on the job.  Based on the foregoing, the Board also concludes that the Veteran is less than credible as to what he was told by Dr. H. in March 1988, that he had a severe injury from years before his October 1984 injury on the job.

As such, the competent and credible evidence of record does not show entitlement to service connection on a direct incurrence basis.

The Board also finds that the Veteran's current low back disability did not manifest within one year after separation from service.  The Board notes the 13 year gap between separation from service and the first record of a diagnosis of degenerative joint/disc disease of the low back.  No records show a diagnosis of arthritis prior to 1984.  The Veteran does not contend, and the record does not demonstrate, that he had arthritis manifesting to a compensable degree within one year of separation from service.  Therefore, service connection for a low back disability is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.

Furthermore, the opinion of the VA examiner in May 2012, who thoroughly reviewed the entire claims file, concluded that the Veteran's current low back disability was not related to military service.  In support of this opinion, the examiner stated evidence of a back injury while in service or back complaints prior to the back injury in 1984 was lacking.  Although the examiner considered the Veteran's back trouble documented in service treatment records, she found that there was no evidence to connect any back trouble while in service to his current back disability.

In addition, the medical evidence of record does not establish that a low back disability is proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD.  In fact, the examiner who conducted the Veteran's December 2010 VA examination opined in May 2012 that the Veteran's current back disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition.  In support of this opinion, the examiner provided the following rationale:

[W]hile PTSD and [c]hronic pain may intertwine with patients with both conditions I am unable to find where PTSD causes or worsen[s] back pain.  I have checked websites from MayoClinic, Walter Reed and CDC [(Center for Disease Control and Prevention)].  All concur that the two are found frequently together[,] none [specifically] blame the pain or increase of the chronic pain on PTSD.  What I did find was that people with chronic pain due to trauma of any sort do have a tendency to have PTSD symptoms.

The Board finds this VA opinion to be competent, highly probative medical evidence as to whether the Veteran's current low back disability was caused by his service, or proximately due to or aggravated by service-connected disability.  It was based on a thorough review of the Veteran's records and was supported by an adequate rationale consistent with the other medical evidence of record.  

In this regard, the medical articles submitted in support of the Veteran's claim indicate that the prevalence of PTSD is substantially elevated in people with chronic pain and that people with PTSD may have increased risk for physical health problems including, arthritis and chronic pain.  However, the medical treatises submitted with regard to the relationship of PTSD to physical health problems do not specifically address the Veteran's situation or provide a conclusive opinion as to the relationship of his PTSD to his low back disability.  See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus between current disability and military service).  Thus, the articles cannot be used to establish a medical nexus between the Veteran's current low back disability and his service-connected PTSD.

Therefore, the medical evidence of record does not show that that the Veteran's low back disability was either caused or aggravated by his service-connected PTSD.

With respect to the Veteran's contentions that his low back disability is related to the claimed back injury in service or is secondary to his service-connected PTSD, the Board notes that the Veteran has not demonstrated that he has expertise in medical matters.  While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance.  In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent.  As to a nexus opinion relating his current low back disability to his service or service-connected PTSD, the Board finds that the etiology of the Veteran's degenerative joint/disc disease of the lumbar spine is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.  Thus, the Veteran is not competent to render a medical diagnosis or etiology of degenerative joint/disc disease in this case.  

Further, no medical evidence of record finds a relationship between the Veteran's low back disability and his service or service-connected PTSD.  In contrast, the VA examiner in May 2012 provided a negative opinion.  The Board attaches far greater probative value to the opinion of the May 2012 VA examiner who is a medical professional than to the Veteran's lay opinion regarding the etiology of his low back symptoms and the relationship between his current low back disability to his service or service-connected PTSD.

Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for a low back disability on a direct or secondary basis.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a low back disability, to include arthritis and to include as secondary to a service-connected disability, is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs