Citation Nr: 1329638 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-17 113A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative changes at L3-4 and L5-S1 (referred to hereinafter as "back disability"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 6, 1993 to May 28, 1993, and in the United States Navy from October 1995 to April 1997. The Veteran also served in the Washington Army National Guard and in Florida Army National Guard from January 1999 to January 2006, with multiple periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in August 2010, September 2011, and January 2013. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current back disability is related to any period of active military service or manifested to a compensable degree within one year following discharge from service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this matter, substantially compliant notices were sent to the Veteran in February 2006 and most recently in March 2013. The Veteran was afforded the opportunity to submit additional evidence and he did so. The claim was most recently readjudicated in April 2013 in a supplemental statement of the case (SSOC). Regarding VA's duty to assist, the Appeals Management Center (AMC), in compliance with the Board's January 2013 remand, attempted to obtain the Veteran's VA treatment records from the VA Gulf Coast Veterans Healthcare System in Biloxi, Mississippi (VA Gulf Coast). VA Gulf Coast replied to the AMC in February 2013 and indicated that portions of the Veteran's records were destroyed by Hurricane Katrina; however, all records remaining in VA Gulf Coast's possession were associated with the Veteran's claims file. The Board notes a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are presumed to have been destroyed. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran was afforded a VA spine examination in January 2011 and a VA examiner provided medical opinions in August 2012 and in April 2013. The Board notes that the examiner mistakenly denoted that a January 2012 VA spine examination was reviewed in connection to the medical opinion provided in August 2012. VA treatment records do not indicate that a January 2012 spine examination of the Veteran was conducted; the name of the "January 2012" examining physician is the same as the January 2011 physician and the phrasing of the diagnosis rendered is identical to the January 2011 examination. Further, in the April 2013 addendum medical opinion, the August 2012 examiner indicated that the January 2011 VA spine examination was reviewed and does not reference a January 2012 examination. Therefore, the Board finds that the reference to a January 2012 examination in the August 2012 medical opinion is a typographical error. The Board finds the VA medical opinions obtained in furtherance of the Veteran's claim to be adequate, as they are based upon a complete review of the Veteran's claims file, consideration of the Veteran's statements, and the VA examiners provided written rationale for the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303, 311. VA has substantially complied with the notice and assistance requirements. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for any injury or disease diagnosed after service, 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). Active military service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training (INACDUTRA) includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A) (2012). The Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27) (2012). The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the veteran's period of active duty) does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA or inactive duty training where the claim for benefits is premised on that period of ACDUTRA or INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). When a claim for service connection is based upon an injury that occurred during a period of ACDUTRA or INACDUTRA, presumptive periods and the presumption of sound condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2011); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c) (3). However, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C.A. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. Id. Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that his current back disability is related to back pain which began during his naval service and was exacerbated by an injury during his National Guard Service. See Veteran's June 2007 VA Form 9; see also Veteran's November 2011 Statement; see also August 2010 Appellant's Brief. In a 1992 military applicant medical prescreening exam, the Veteran denied a history of back pain. See STRs. The Veteran's June 1995 Navy enlistment examination report denotes that his spine and other musculoskeletal system were "normal" and the Veteran denied a history of recurrent back pain. In September 1996, the Veteran was treated for complaints of lower back pain, secondary to bilateral foot pain; later in September 1996, the Veteran denied a history of back injury. See STRs. In November 1996, the Veteran was treated for complaints of lower back and bilateral foot pain; however, the examination revealed that the Veteran was without deformity, spasm, redness, or bruising. The Veteran's STRs are devoid of any back or spine injury during his Army or Navy service. See STRs. VA treatment records indicate that the Veteran complained of back and neck pain that increased with certain neck movement in January 2000;a diagnosis of his back and neck pain is not apparent by the record. However, during a follow-up VA visit, in March 2000, the Veteran complained of upper back, shoulder, and lower back pain with bending, but "better with rest," and the Veteran was treated for "lumbar strain." March 2000 X-ray views of the Veteran's back were negative. See VA Treatment Records. In the summer of 2000, the Veteran was injured as a result of falling at his home. In April 2001, ten months after his fall, the Veteran was diagnosed with "minimal degenerative changes without disc narrowing; probable muscle spasm." See National Guard STRs; see also November 2011 Veteran's Statement. In April 2001, the Veteran complained of back pain, but upon examination, no deformities were found and the Veteran had full range of motion; the Veteran was diagnosed with muscle strain. See National Guard STRs. In October 2001, the Veteran complained of right sided lower back pain since a fall one year prior; the Veteran's MRI revealed mild degenerative disc changes, worst at the L3-4 level with mild discogenic endplate changes involving the inferior endplates of L3 and L4; mild facet joint degenerative changes at L5-S1; small circumferential disk bulge at L5-S1 with no spinal canal or neural foraminal narrowing. See National Guard STRs. In April 2002 and October 2002, the Veteran was placed on temporary profile because of his back and his feet. See National Guard STRs. In November 2004, the Veteran injured his lower back as a result "twisting wrong" while placing groceries on to a truck; it is noted that the injury occurred during weekend drill inactive duty, as denoted by the "IDT" (inactive duty training or INACDUTRA). The Veteran was treated by his unit medical personnel and he was treated with muscle relaxers and told to take two days off by unit medical personnel. The Veteran was diagnosed with a lower back sprain; during the examination, the Veteran reported a history of lower back pain over the last three years. See National Guard STRs; see also February 2006 Veteran's Statement. Two weeks after the Veteran's INACDUTRA back incident, in December 2004, he received emergency room (ER) treatment for his back. ER records indicate that he was diagnosed with chronic lower back pain and he was told to follow up with his primary care physician. See December 2004 ER Records. Also in December 2004, the Veteran was treated by private physician Dr. C. K.; the Veteran was diagnosed with sprain of the lumbar region and lumbago. The Veteran reported to Dr. C. K. that he was on a permanent medical profile for lumbar arthritis. During a January 2005 follow-up visit, Dr. C. K. indicated that the Veteran's diagnosis remained a lumbar strain. See Dr. C. K. Treatment Records. In November 2005, the Veteran was examined by Dr. M. R., a private physician, in which he reported that, prior to the November 2004 National Guard incident, he had "no previous injury/problem" with his back. The Veteran reported that his lower mid back pain symptoms began immediately after the National Guard incident and have continued with occasional increased symptoms. The Veteran described his symptoms as being present all of the time. The Veteran was diagnosed with lumbar disc disease. See Dr. M. R. Treatment Records. A December 2005 Magnetic Resonance Imaging scan (MRI) revealed that the Veteran had moderate bilateral foraminal encroachment at L5-S1 secondary to facet joint hypertrophy, marginal osteophyte formation and mild disc bulging. There was "no evidence of acquired spinal stenosis or focal disc protrusion." There was "chronic appearing Schmorl's node at the inferior endplate of L4" and "degenerative disc disease at L3-4, L4-5, and L5-S1 where there was some mild disc bulging." See December 2005 MRI. VA treatment records reveal that in November 2006 the Veteran was negative for back pain. In March 2008, the Veteran made no complaints of back pain. However, in May 2008, the Veteran was treated for back and knee pain and he reported that the pain was onset a "few months" prior. During the examination, the Veteran was assessed as having no spasm or tenderness. The Veteran reported that he hurt his back during National Guard Service in 2004 bending over to move bread, that he had physical therapy, but his back "hurt worse." He reported that an MRI showed mild disc bulge L5 and mild multilevel degenerative disc. He stated that he cannot do sit ups, denied lower extremity symptoms and bladder or bowel dysfunction. The Veteran stated that a doctor told him several years ago that he should not do sit ups or anything strenuous to aggravate his back. See VA Treatment Records. The Veteran complained of back pain in November 2008 and he was assessed with lumbar muscle spasm. In December 2008, the Veteran was treated for right wrist strain, without complaint of back pain. In February 2009, the Veteran reported occasional back pain. In September 2009, the Veteran reported feeling a "knot" in his lower back with increased pain for three weeks. In April 2010, the Veteran denied any pain during a six month follow up appointment. See VA Treatment Records. During a January 2011 VA spine examination, the impression of the Veteran's back was straightening of lordosis which may be secondary to muscle spasm, otherwise negative; incidental finding of a small marginal osteophyte. See VA Treatment Records. In October 2011, the Veteran complained of back pain with increased pain with movement. See VA Treatment Records. In an August 2012 VA medical opinion, the examiner reviewed the Veteran's claim's file, considered the Veteran's statements, and reviewed the January 2011 VA spine examination of the Veteran. See August 2012 VA Medical Opinion. The examiner opined that Veteran's 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;" the examiner also opined that his back disability was not aggravated by any period of active duty, ACDUTRA, OR INACDUTRA, to include the November 2004 lumbar strain sustained during INACDUTRA. The examiner explained that lumbar strain is a "transient condition with no neurological dysfunction or other pathologic component." See August 2012 VA Medical Opinion. The examiner's rationale was that a "lumbar strain is a transient condition involving the muscles and ligaments (soft tissues) of the spinal region, while lumbar DDD is a degenerative process involving the discs and vertebral bodies; the one is not the cause of, or related to the other." The examiner also stated that a "current study suggests that back injury is not an important predicator of future disc degeneration" and that the "AMA Guides Newsletter July/August 2009 shows that age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of disc) were the predominant predicators of degenerative disc disease." See August 2012 VA Medical Opinion. In December 2012, the Veteran complained of back pain, but no limitation of range of motion of the lower extremities and no weakness. See VA Treatment Records. In April 2013, an addendum medical opinion was provided by the August 2012 VA examiner; the examiner opined that the Veteran's lumbar strain, that occurred in 1996, was a transient condition that involved muscles and ligaments and resolved with symptomatic treatment. While the lumbar DDD, diagnosed in 2001, after service, is degenerative process involving vertebral discs and spaces; "the one not the cause of or related to the other." See August 2012 VA Medical Opinion. The examiner's rationale in April 2013 was the same as provided in August 2012. See id; see also April 2013 VA Medical Opinion. In June 2013, the Veteran's representative submitted an appellant brief in which he reasserted that the Veteran's statements in his notice of disagreement and substantive appeal. June 2013 Appellant Brief. IV. Analysis The Board finds there is no nexus between that the Veteran's current back disability and any period of active military service, ACDUTRA or INACDUTRA. It is not in dispute that the Veteran has a current back disability. What remains for consideration is whether or not the Veteran's back disability may somehow be related to his service. That is a medical question, and requires medical expertise. See Jandreau, 492 F. 3d 1372, 1377. Here, the Board acknowledges the Veteran's contentions attributing the above condition to service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's back pain symptoms are attributed to a muscular or vertebral condition, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. As detailed above, the Veteran has an extensive history of muscle related back pain; however, the Veteran's currently diagnosed back disability "is a degenerative process involving vertebral discs and spaces;" which was diagnosed prior to the Veteran's November 2004 INACDUTRA incident. See April 2013 VA Addendum Medical Opinion; see also Dr. C. K. Treatment Records; see also STRs; see also National Guard STRs. In August 2012, a VA examiner opined that the Veteran's current back disability is "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The Veteran's current back disability was not "aggravated by any period of active duty, ACDUTRA, or INACDUTRA, to include the November 2004 lumbar strain." The rationale for the examiner's opinion is that a lumbar strain, the condition that the Veteran was diagnosed with in November 2004, "is a transient condition involving the muscles and ligaments (soft tissues) of the spinal region," while the Veteran's current back disability is "lumbar DDD (degenerative disc disease) [and] is a degenerative process involving the discs and vertebral bodies. The one is not the cause of, or related to, the other." The examiner also opined that the Veteran's current back disability was not "aggravated by any period of active duty, ACDUTRA, or INACDUTRA, to include the November 2004 lumbar strain sustained during INACDUTRA." See August 2012 VA Examination. In the April 2013 addendum medical opinion, as detailed above, the examiner opined that the Veteran's lumbar strain, that occurred in 1996, was a transient condition that involved muscles and ligaments and resolved with symptomatic treatment; while the lumbar DDD, diagnosed after service, in 2001, is a degenerative process involving vertebral discs and spaces. "The one not the cause of or related to the other;" "age, familial aggregation (genetics), and intrinsic disc loading (body weight compared with size of disc) were the predominant predicators of degenerative disc disease," the Veteran's current disability. See April 2013 VA Examination; see also VA Treatment Records. The Board finds that the medical evidence is more probative than the Veteran's assertions as medical knowledge is required to identify the source of the Veteran's symptoms, the opinions are well reasoned, detailed, consistent with other evidence in the record, and the examiner considered the Veteran's medical history. As the medical evidence indicates that the Veteran's current back disability is vertebral and not related to the Veteran's prior back muscle symptoms; the Board finds there is no nexus between the Veteran's current back disability and any period of military service. As the preponderance of the evidence is against a finding for the Veteran; the benefit of the doubt rule does not apply. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for degenerative changes at L3-4 and L5-S1 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs