Citation Nr: 1329235 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-22 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph Aquilina INTRODUCTION The Veteran had active military service from May 1984 to February 1990. This matter is on appeal from a February 2010 Rating Decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A review of the Veteran's online Virtual VA file indicates that there is no additional outstanding evidence. FINDING OF FACT The evidence of record does not show a relationship between the current lumbar spine disability and any injury or incident in service. CONCLUSION OF LAW The Veteran's lumbar spine disability was not incurred in or aggravated by active service and may not be so presumed. 38 U.S.C.A. §§ 1131, 1112, 1116, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b) (1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Prior to the RO's adjudication of the claim, the Veteran was provided with a letter in March 2009 on the issue of entitlement to service connection for his low back disability that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. With regard to the duty of assistance, the VA obtained service treatment records, and pertinent post service VA medical records including a 2009 primary care consult. VA also associated the inclusion of private records. The Veteran was afforded a VA Compensation and Benefits Examination in May 2013 and a VA spine examination in September 2011. The examiners offered opinions as to their impressions and etiologies and stated they reviewed the Veteran's medical records. Unless the Veteran challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011). The Veteran has not contended that the examinations were inadequate nor has any prejudiced been alleged. In any case, for the reason set forth below in deciding the merits of this appeal, all of this issues relevant to the claim have been adequately addressed by the medical evidence of record. Service Connection The Veteran asserts that his current lumbar spine disability is related to injuries sustained in service. Specifically, the Veteran alleges that he injured his back as a result of the effect of parachute jumps. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of ten percent within one year 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that to the extent the Veteran's diagnosed degenerative disc disease of the lumbar spine may be a manifestation of arthritis, this disability may be considered one of the chronic disorders listed in § 3.309. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). With regard to lay evidence, the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology if the condition, as is the case in the instant matter, is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). The Board may weigh such testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and (continuity of symptomatology) sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007) Factual Background and Analysis The Veteran seeks service connection for degenerative disc disease of his lumbar spine for which he has a current diagnosis. The Veteran's DD-214 shows the receipt of a parachute badge and the record and the Veteran's statements support this as well. As reflected from his February 2011 Notice of Disagreement (NOD) and his August 2011 VA form 9, the Veteran contends that his military service is the cause of his current back disability. The Veteran noted that the lack of back problems in service was not accurate and contends he voiced numerous complaints to sick call. He contends airplane jumps would cause his lower back pain and "and that after that" his "legs would almost be running on stilts as they would be numb shortly after" the "back pain started." The Veteran states that he had a particularly "bad jump" in August 2009 statement in Support of the Claim and that he subsequently experienced back pain during morning runs and various other physical activity, but that prior to this he had no back pain. He further recollects that back pain was noted at his exit examination. The Veteran's Service Treatment Records (STR's) weigh against a finding of an in service injury for the back. While the Veteran's service record contain numerous instances for sick call visits, none of the visits relate to his back. Numerous hospitalizations for shin splits, stress fractures, lower extremity pain, knees and lower extremity physical therapy records are present. Reports feature numerous impressions of the veteran's status, including pain in his legs and recommendations of less activity and running at his own pace. In another hospitalization the Veteran had a buttocks contusion from falling while dancing and it was again noted that the veteran had severe knee and shin pain. No treatment records for back pain are in the record. The record also contains instances, such as the Report of Medical History where the Veteran had the opportunity to self-report back related issues but the Veteran's treatment records make no such notation. Consequently to the extent that the Veteran contends in service back injuries and back pain, the objective evidence does not support such a contention. A March 2005 private MRI is the first instance of mention for problems related to the lumbar spine; bulging at the L3- 4 and L4-5 was evident. No medical opinion as to causes of the bulges was included. Additional visits to the same provider show disc bulging in the same areas and a perineural cyst. Additional private medical records from 2007 as well as March and September 2009 note pain and discomfort in the lumbar area but mention no opinions. Subsequently, the Veteran received a VA examination in 2009, a primary care consult in 2011, and a VA medical opinion in 2013. The Veteran was afforded a spine exam in September 2009. The Veteran related to the examiner (contrary to his NOD) that he had started mentioning the lower back pain within the past ten years. The examiner reviewed the Veteran's files and took into account the lay statements regarding a bad jump as the Veteran's theory for the cause of back pain. The examiner's notes indicate that a review of private medical records including MRI results was also conducted. A thorough exam followed evaluating the Veteran's reflexes, range of motion, pain and impact of the lower back pain on daily activities. The examiner did not offer an adequate medical opinion as to etiology, simply noting she could not resolve the issue the Veteran's degenerative disc disease without resorting to mere speculation. The examiner premised this rationale on the lack of any service treatment records related to the back, and that there were no medical documents show any accounts for back pain until 17 years post-service. The Veteran was seen in June 2011 for a primary care consult following complaints for lower back pain. The examiner recounted the history provided by the Veteran concerning "jump school." The examiner conducted a complete examination. The relevant findings in the assessment were: "Low back pain - chronic, more likely than not related to jump training, active duty" and "Degenerative disc disease - cervical and lumbar." While this statement indicates that the Veteran's low back disability is related to service, it does not adequately explain the reasoning behind why the symptomatology and pathology now present is due to injuries alleged to have occurred in service decades ago, particularly in light of the lack of evidence in the STRs of low back symptoms. Moreover, there is no indication that the examiner had access to all of the relevant evidence, as the claims file was not noted to have been before the examiner at the time of examination. A May 2013 VA opinion was sought by VA to resolve the contradiction between the 2009 exam on the one hand, which was unable to offer an opinion, and the June 2011 record which found was negative for a nexus to service but supplied an inadequate rationale. The examiner provided a detailed survey of the evidence in the record which was not to include a review of the claims file and opined that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale for this opinion was as follows: The STRs were completely absent of any mention of a back injury from jumps by the patient. There were frequent entries (doctor visits) referring to bilateral leg pain. Also separation exam in 1989 was negative for complaints of back pain. After service patient had a general medical exam in 1990 which again did not show the patient ever claimed a back condition secondary to jumps. After service there is a 17 yrs absence of complaints regarding the patient's back. Not until 2007 do the patient's records show complaints of back pain. Also around this time the patient had an MRI of the LS spine showing DDD and a perineural cyst. So to conclude it is less likely as not (less than 50/50 probability) that the patient's current back condition is related to/ the same as/ caused by any jumps during military service (or any other event in service. At the outset of the Board's analysis, it is noted that the medical evidence above clearly shows that degenerative disc disease of the lumbar spine did not develop within a year of the Veteran's separation from active duty in 1990. As such, presumptive service connection is not warranted because there is no evidence in the record that any. See 38 C.F.R. §§ 3.307, 3.309. In regard to continuity of symptomatology, for the reasons set forth below, the competent and credible lay and medical evidence show that any symptoms of the degenerative disc disease occurred well after service, so this alternative avenue for direct service connection is not a basis for a favorable decision in this case. The Board finds the May 2013 VA opinion finding no relationship between the Veteran's current lumbar spine disorder and the alleged trauma in service to be highly probative. This is because the opinion is predicated upon a thorough review of the claims folder and contains a thoroughly discussed rationale with discussions and references to the Veteran's medical history. The examiner accurately described the numerous in-service treatment records as well as post-service evidence and explained the reasons for conclusions, i.e., the lack of evidence of back related injuries, the negative evidence of back related complaints, the substantial time gap between discharge and the Veteran's private treatment for his back, and finally the Veteran's current levels of pain. In contrast, the June 2011 opinion, which is favorable to the Veteran's claim because it indicates a link between the Veteran's lumbar spine disability and the asserted injury in service, contains no such analysis. Indeed, it did not include a review of the claims file, including the STRs. Without the STRs, the Board finds the that June 2011 opinion is based on incomplete information and appears to rely on solely on the Veteran's assertions, and thus of limited probative value. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (The Board notes that evidence that is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence). For the reasons described above, this entitles the May 2013 VA opinion to significantly more probative weight. (Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (the bulk of the probative value of a medical opinion is derived from its reasoning). In finding that the preponderance of the evidence is against the Veteran's claim, the Board is cognizant that while absence of evidence is not necessarily evidence, such lack of evidence contributes to the total evidentiary picture regarding an appeal. See Clark v. Shinseki, No. 11-615, 2012 WL 2218733 (Vet. App. June 18, 2012). Generally, without adequate medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. In reviewing the Veteran's claims, the Board has reviewed his written statements. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Veteran is certainly competent to describe the extent of his current symptomatology and the continuity of symptomatology from service onwards. Although the record does not show treatment for back pain in service, it is reasonable to assume that his back may have sustained trauma associated with parachute jumping. However, this assertion was considered by the May 2013 examiner, who clearly explained that the Veteran's current lumbar spine disability is not related to service because of the lack of contemporaneous in-service medical evidence in conjunction with no evidence of problems with the spine until many years later. The Board finds this reasoning sound. Thus, the Board finds the Veteran's contention that his low back conditions might be related to physical trauma from parachute jumps unpersuasive in view of the May 2013 medical opinion and the overall evidentiary picture. The Veteran has stated that his low back was noted in service, including his exit examination. Contrary to this assertion, however, the exit examination says nothing in the way of abnormalities regarding the spine. Indeed, the STR's resonate a common trend; lack of any mention of low back complaints or symptoms. So if the Veteran did hurt his back in service, it was clearly not significant enough for him to seek medical care for it, and that any such injury was acute and transitory and resolved prior to discharge. There is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render him competent to offer evidence on the factual question of whether his back pain can be attributed to his time on active duty. Questions of causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a lay person without the appropriate medical training or expertise, the Veteran simply is not competent to render a probative (i.e., persuasive) opinion on the medical matter at issue in this case. See Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a lay person is generally not capable of opining on matters requiring medical knowledge"). The Veteran's statements about the occurrence of back pain in service and since are at best inconsistent in view of the record and thus do not import a great deal of probative weight. Indeed, as is explained above, the Veteran finds that the preponderance of the competent, credible, and probative medical evidence of records weighs against the claim. As the preponderance of the evidence is against the Veteran's claim, reasonable doubt does not arise and entitlement to service connection for a lumbar spine disability is denied. ORDER Service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs