Citation Nr: 1328394 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-12 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral iliotibial band syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from October 1994 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2005, the Veteran testified before a Decision Review Officer at the RO. A transcript of that hearing has been associated with the claims file. In January 2011 and August 2012, the Board remanded this matter for further development, which has been completed and the case has been returned to the Board for appellate consideration. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional relevant records contained therein. The issues of an effective date prior to January 12, 2004, for the grant of service connection for frostbite residuals the bilateral foot and ankle, and entitlement to increased evaluations for left and right knee iliotibial band syndrome, and entitlement to service connection for a left shoulder disability were previously referred by the Board in the August 2012 remand, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's low back disability has not been shown to be related to his military service or to his service-connected bilteral iliotibial band syndrome. CONCLUSION OF LAW A low back disability was not incurred in or aggravated in service and is not proximately due to, the result of, or aggravated by the service-connected iliotibial band syndrome. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2004 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for the claimed low back disability, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A June 2007 letter, issued after the decision on appeal, informed the Veteran how to establish service connection on a secondary basis and how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Full notice was not provided until after the decision on appeal. However, the timing deficiency is harmless as the claim was readjudicated in subsequent supplemental statements of the case of July 2007, April and September 2009, April 2010, September 2011, and May 2013. The Veteran was afforded the opportunity to submit additional evidence after the June 2007, and he availed himself of the same. Therefore, the purpose of the notice requirement has been met and the timing deficiency is harmless. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Board notes that the Veteran has identified VA outpatient treatment records which the RO has been unable to locate. However, the record reflects that the RO submitted multiple requests to the identified VA treatment facilities and responses have been received from them. The record reflects that the RO has made every attempt to obtain all identified records, and any additional efforts would be futile. In addition, the Veteran was afforded (most recently) a VA examination in June 2011 in connection with his claim for service connection for the claimed lumbar spine. To that end, 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). As discussed below, the Board finds that the examination and medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and the medical literature, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claim process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Arthritis is a chronic disease. 38 U.S.C.A. § 1101. The appellant does have arthritis of the lower back. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran has argued that he has a current low back disability which was caused by service. In the alternative, he argues that his low back disability is due to his service connected iliotibial band syndrome. Service treatment records are silent for any injury to the low back. An October 1996 Report of Medical History notes that the Veteran reported back pain when bending too much or lifting. He noted the pain was mainly when he used to road march. A separation physical of October 1996 noted the Veteran's spine to be normal. Post service private treatment records of January 2004 show the Veteran was treated for a sacral strain. In July 2004 he sought treatment for back pain without any trauma. He reported the pain had started 3 months before. X-rays showed a vertebral fracture which was closed. In a July 2004 statement, the Veteran stated he had experienced back pain for the prior 7 years. Private treatment records of December 2004 note a diagnosis of lumbar strain. A December 2004 letter from Dr. S.K. Ofori states that he has been treating the Veteran for low back pain complaints among other things. He noted the Veteran walks with a cane intermittently because of his knee and back problems. In a July 2005 letter, Dr. Ofori stated that he had been treating the Veteran for low back pain complaints which he reported he had had since service. He also stated that as a result of his bilateral knee problems, he has walked with an abnormal gait that has aggravated his low back condition. A September 2006 lumbar spine MRI shows spondylosis greatest at L5-S1 and L5-S1 disc bulge with left paracentral to lateral protrusion extrusion. A worker's compensation claim of April 2007 shows a diagnosis of lumbar strain with significant prior history. The Veteran had fallen down the stairs and had injured his back. An MRI done for purposes of the worker's compensation claim showed spondylosis at L5-S1, facet degenerative changes suggested at L4-5, annular tear suggested, and left paracentral, and left and right neuroforaminal spinal canal narrowing. An August 2007 letter from Dr. Ofori notes that on examination that day, the Veteran walked without limping or listing. In an April 2008 letter, Dr. Ofori stated that he had reviewed the Veteran's entire military and private treatment records. He stated he had been treating the Veteran for many years for his low back problems and had diagnosed him with lumbar/thoracic degenerative disc disease, spondylosis, and lumbar disc herniation with sciatica. He provided an opinion stating that due to the longstanding bilateral knee disability and the accompanying abnormal gait, he likely damaged his perivertebral spinal ligaments due to abnormal stress. He noted that by medical literature it is proven that spine disorders and diseases are associated with longstanding abnormal gait, and that the Veteran does not have another plausible etiology. He concluded by stating that it is most likely that his current low back condition was incurred in service and that he developed a chronic low back disability that is most likely secondary to his longstanding knee disability and the accompanying abnormal gait. The Veteran was afforded a VA examination in May 2009. At the time, the Veteran reported his back pain started in 2000 occurring about every other year with an episode of flare-up usually associated with lifting and twisting. In 2004 he was diagnosed with a herniated nucleus pulposus at L5-S1. In 2007, he reported an on-the job injury to the low back. An x-ray of the back was normal. He was diagnosed with chronic strain of the lumbosacral spine. The examiner noted that the Veteran had a history of degenerative disc disease of the lumbosacral spine and according to the history reported, the pain worsened after his job accident in 2007. She noted that there is nothing in the record to indicate an altered gait due to his knee condition. Therefore, the records do not support a finding that the knee condition caused the spine condition. As such, it is less likely than not that the condition of the spine is due to the knee condition. A March 2010 VA examination conducted for his feet notes that the Veteran walks with an antalgic gait. In a November 2009 letter, Dr. Ofori stated that in his opinion, the Veteran had lumbar degenerative disc disease since October 1996 in service when he complained of low back pain with bending, lifting and when marching, and that this has continued since service. He stated that the current complaints are the same since he has not been pain free since October 1996. He noted that the Veteran's records indicate he had gait problems while in service as he was given arch supports while in service. It is well known that individuals with abnormal gait do develop back problems. He further noted that the findings of chronic degenerative changes in the L5-S1 were shown prior to his work injury in April 2007. In May 2011, the May 2009 VA examiner conducted a second VA examination. She noted the history reported by the Veteran in May 2009. She noted that service treatment records showed the Veteran was seen in October 1996 for complaints of back pain associated with bending, lifting and marching. He was diagnosed with musculoskeletal strain. There were no other entries for back problems in service. She further noted that the Veteran does not use assistive devices for walking and that the record does not show a history of an unstable gait or abnormal gait. After a physical examination, she diagnosed the Veteran with lumbosacral spine degenerative disk disease at L4-S1. She opined that it is less likely than not that the lower back disability is related to a disease or injury in service or is related to the service connected iliotibial band syndrome. She noted there was only one entry in service in October 1996 of a musculoskeletal strain. She further noted that the service treatment records do not show that the Veteran had any additional back problems, and the medical records do not indicate the Veteran had any back problems for 7 years after service. The records do not reflect he developed an abnormal gait; and while abnormalities in weight bearing can lead to acceleration of degenerative changes in the lower back, an abnormal gait has not been shown. In fact, she noted that the Veteran was currently employed as a police officer and is able to pass the physical fitness test which shows a high level of fitness and which is not consistent with an abnormality in gait. Given its review of the record, the Board finds that service connection for the claimed low back disability is not warranted. In the May 2009 and May 2011 VA examination reports, the examiner explicitly concluded that the Veteran's low back disorder was less likely than not (less than 50 percent probability) proximately due to, caused by or aggravated, by the service-connected iliotibial band syndrome. In the May 2011 report, the examiner opined the low back disability was less likely than not related to service. The examiner explained that the record did not support an altered gait as claimed by the Veteran and as stated by Dr. Ofori. In fact, she noted that the Veteran was still working as a police officer and passes his physical fitness test. She further noted that there was a single complaint of back pain in service and that while the Veteran has argued he had back problems continuously since service, the record does not support a finding of continuous problems since service, but rather an absence of symptoms for 7 years after separation form service. The Board notes that this VA examiner's opinion was based on a thorough review of the medical records (including conflicting medical evidence), taking the Veteran's history, performing examination and reviewing the private medical opinions. The Board acknowledges the medical opinions submitted by the Veteran's private treating physician, Dr. Ofori. He has consistently stated that the Veteran's low back disability started in service, continued since service and has been aggravated by the service connected knee disability. However, the numerous VA and private treatment records do not support an abnormal gait. Indeed, the Veteran has continued to work as a police officer. He has been noted to use a cane only intermittently and only by Dr. Ofori. Only at the March 2010 VA examination was the Veteran noted to walk with an antalgic gait. Otherwise, the Veteran was consistently noted to have a normal gait. Moreover, the private physician is relying on the Veteran's reports of continuous back problems since service. However, to the extent the Veteran has alleged continuity of symptomatology, the Board finds his assertions not to be credible. In this regard, the Board notes that the record is silent for seven years after separation for any complaints or treatment for back problems. Moreover, when the Veteran sought treatment for back pain in July 2004, he reported an onset of back pain just 3 months before. He did not report a history of 7 years of back pain. Furthermore, at the May 2009 VA examination, the Veteran reported an onset of back pain in 2000. The Board notes that in statements in 2004 the Veteran alleged that he had back pain for 7 years. However, the Board places greater probative weight on the statements provided by the Veteran during the course of seeking treatment, that the statements provided in support of the claim seeking monetary benefits. Moreover, the Veteran has been inconsistent in his history. Accordingly the Board finds his statements not to be credible. Furthermore, as Dr. Ofori relied on the Veteran's statements of continuous back problems since service, which have been deemed not to be credible, his opinion is based on a defective factual premise. Accordingly, the Board places little probative weight on his opinions that the low back disability started in service. Similarly, regarding the private physician's opinion that the low back disability is due to the knee disability, the Board finds that the record does not show the Veteran has suffered from an altered gait for years. Indeed, Dr. Ofori relied on the fact that the Veteran was given show inserts in service as a showing of abnormal gait since service. However, a review of the service treatment records does not show that shoe inserts were prescribed. Moreover, the one time that the gait was assessed in service, in October 1995, the finding was the gait was nonantalgic. Furthermore, while an antalgic gait was noted at the March 2010 VA examination, the Veteran's gait has been noted to be normal prior to that examination and subsequent to it. Therefore, a continuous antalgic gait, as claimed by Dr. Ofori, is not shown in the record. As such, the Board also places little probative weight on Dr. Ofori's opinion as it relies on the existence of an altered gait. The only evidence of record supporting the Veteran's claim is his various general lay assertions. In this case, the Board finds that the Veteran is competent to state that he has had back pain since service and that he has an altered gait from his knee disability has caused or contributed to his lumbar spine disorders (the Board notes, however, that he did not make this contention until years after filing his claim). 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). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, in this case, as noted, the Veteran's allegation of continuity of symptomatology and an altered gait have been deemed not to be credible. Accordingly, the Board finds the opinion of the VA examiner in the May 2009 and May 2011 VA examination reports to be more probative. The VA examiner is a medical professional who has reviewed the claims file, considered the reported history, performed physical examination and reviewed the submitted medical records and private opinions. The examiner used her expertise in reviewing the facts of this case and determined that the current lumbar spine disorders were unrelated to the Veteran's service and service- connected iliotibial band syndrome. For the foregoing reasons, the Board finds that the claims of entitlement to service connection for lumbar spine degenerative disc disease and total right hip replacement, to include as secondary to the service-connected residuals of bilateral hammertoe surgery must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs