Citation Nr: 1330117 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 04-38 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lower back disability, status post-operative. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from August 1961 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Winston-Salem, North Carolina, regional office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the Veteran's claim is now with the RO in Roanoke, Virginia. The Board remanded this case for further development in November 2006, July 2009, and May 2011. The Board reopened the claim in May 2013 and remanded in order to provide the RO an opportunity to consider the matter on a de novo basis. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case, including the Informal Hearing Presentation. FINDINGS OF FACT The Veteran's current low back disability is not the result of a disease or injury in active service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated due to active service, nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS 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 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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) (2013). 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). In this case, the Veteran was not provided with proper VCAA notice until an April 2008 letter. This letter contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini, but was not provided to the Veteran until after initial adjudication of his claim. However, the purpose of the November 2006 remand was to provide the Veteran with proper VCAA notification. The Veteran does not claim that the failure to provide notification prior to initial adjudication resulted in any harm to his claim. The Board also concludes that this does not result in any harm to the Veteran, as his claim has been readjudicated since receipt of the notification. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board finds that the duty to notify has been met. The duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. Records have been obtained from the Social Security Administration. An opinion was obtained from an independent medical expert in February 2013. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. There has also been substantial compliance with remand instructions. The November 2006 remand sought to provide the Veteran with VCAA notice. As discussed this was provided. In pertinent part, the July 2009 remand was for efforts to obtain VA treatment records. These were obtained. The May 2011 remand sought Social Security Administration (SSA) records. SSA subsequently provided all available records. The most recent remand was for adjudication of the claim on the merits, and this was accomplished. Service Connection The Veteran contends that he has developed a chronic back disability as a result of an injury he sustained during active service. He states that he was injured in his final parachute jump during airborne training when his parachute was caught in a high wind, dragged him along the ground, and injured his right shoulder and low back. The Veteran contends that this resulted in a chronic back disability prior to his post service injuries. 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. § 1110; 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. 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. 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). As the evidence shows that the Veteran currently has arthritis of the lumbar spine, continuity of symptomatology is for consideration. 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) (overruled on other grounds). If arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." A lay person is competent to report 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). The Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 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 service treatment records show that the Veteran's spine was normal on his May 1961 entrance examination. It was also normal on a January 1962 Report of Medical Examination conducted prior to the Veteran's airborne training. A service treatment record dated January 27, 1962 shows that the Veteran was seen for back strain. He was treated with heat and wintergreen. A record dated February 2, 1962 shows that the Veteran landed on his right shoulder the previous day. The impression was possible strain, no separation. No mention of the back was made. The Veteran was seen for complaints of back pain on February 21, 1962. He reported that he had been rolled out of bed four weeks ago and had struck his back on an adjacent bed. He now had pain in the upper lumbar area. Tenderness was the only pathology found on physical examination. The Veteran's June 1962 discharge examination found that his spine was normal. In February 1964, the Veteran submitted a claim for service connection, but did not mention a back disability. Post service records include a May 1964 letter from a private doctor to the Industrial Commission of Virginia. The doctor described findings from the Veteran's recent hospital visit. An X-ray view of the spine showed partial sacralization of the fifth lumbar vertebra with some narrowing of the disc space between L5 and S1 which probably represented a developmental position. The doctor added that this was an unstable condition that would be aggravated by exertion. There was some hypersensitivity over the left side, especially in the neck and low back. The impression was a probably slipped disc. A June 1964 letter from Dr. T. says that he examined the Veteran in June 1964, at which time the Veteran complained of some pain in his back and numbness in his left leg. The Veteran said that these symptoms had been present since an October 1963 fall from a height of 20 feet while at work. The history and examination were suggestive of a herniated nucleus pulposus at the L5 level extending left. The doctor added that he was unable to say if this condition was caused by the Veteran's accident. An additional letter from Dr. T. is dated in August 1964. The doctor related that the Veteran had been hospitalized in July 1964. X-rays of the lumbar spine were interpreted as showing defects in the lamina of L5. This was in turn found to indicate that the Veteran had a "congenital defect" of the posterior arch in the lamina at L5. This was not caused by his injury but could have been aggravated by his fall. A lumbar myelogram showed no evidence of a herniated disc. A December 1964 letter from Dr. K. shows that the Veteran had been recently seen with a long history of recurrent back trouble "having originated apparently from an accident in October 1963." This accident was a fall of approximately 20 feet from a building. The Veteran had attempted to return to work on several occasions but had to quit heavy labor due to recurrent back pain. The doctor said that it was fairly evident that the Veteran had some potential instability and weakness of the lumbosacral joint that was not going to tolerate heavy work. He described his discomfort as being in the area of L2 and L3. The doctor said he was "unable to state at the present time whether or not his symptomatology is related to his accident or not, and whether he has any primary disability from the accident or not." In a February 1965 note to the Veteran's attorney, Dr. S.J.B. reported that the Veteran came to see him in December 1964 for an examination at the rehabilitation center. While talking to the Veteran he referred to injuries he sustained about two years ago when he fell and hurt his back. The doctor said that he had delivered the Veteran and treated him his entire life and that he had never complained of back trouble prior to entering the Army. The doctor said that "It is my considered opinion that whatever disability he has now is the direct result of his accident". A November 1965 pre-employment examination found that the back had no limitations. Additional medical records from this employer dating from 1965 to 1967 show that the Veteran was seen for a variety of medical complaints, but there is no record of any back complaints. However, in August 1967 the Veteran called and said he hurt his back off the job, and was under the care of Dr. B. In a September 1967 letter Dr. B. stated that the Veteran had initially been seen by him in August 1967. The Veteran had denied any trouble with his back prior to the last four or five days. Since that time he had experienced a lot of back trouble at work but he could not recall any specific injury. An X-ray study showed some irregularity in the L-5 vertebra and there was questionable spondylolisthesis. Various treatments were recommended. Records from Dr. B. dated in September 1968 report that the Veteran had been off work for three weeks. Little improvement was reported. The doctor recommended lumbosacral fusion. In September 1968 the Veteran underwent surgery for fusion of L4 and S1. An October 1968 hospital discharge summary says that the Veteran had been admitted to the hospital early that month with the diagnosis of six weeks postoperative lumbo-sacral fusion and six days post automobile accident with cervical and lumbar strain. He was treated, improved, and released. Medical records from the Veteran's employer contain a January 1969 notation that he had been off work since his August 1968 spinal fusion. A May 1972 hospital discharge summary states that the Veteran had originally been seen in 1964 by Dr. T. for low back pain and it was felt that he had a congenital defect of the fifth lumbar lamina. He was seen and followed by Dr. B in 1967 with a spinal fusion being done at that time. The Veteran had then done very well until he had been bumped by a car two months ago. Private medical records from the 1970s show that the Veteran was involved in an automobile accident in January 1974. He was hospitalized for continued back symptoms that were attributed to this injury in May 1974 and July 1975. In a December 1977 letter Dr. K described the Veteran's various medical problems, to include his back disability. The doctor said that the Veteran was in the paratroopers during military service and there was the possibility of a back injury at that time. The 1968 fusion was noted, but there was no mention of any post service back injuries. VA treatment records dating from the 1970s to the present show that the Veteran received occasional treatment from VA. A November 1977 VA Medical Certificate and History includes a history of back problems that begins with the October 1963 fall, notes the 1968 spinal fusion, and in a 1974 car accident. An October 1978 private medical examination states that the Veteran gave a history of an injury to his low back several years ago that eventually necessitated a fusion in 1968. A September 1988 letter from a private doctor states that he had been treating the Veteran since 1976. The Veteran complained of back, shoulder, and leg pain as a result of injuries he received some time in the 1960s. The doctor believed his complaints of backache and headaches were real and associated with previous disc and head injuries. At a September 1988 hearing, the Veteran testified that following service he did not receive any treatment until 1964 and that this was predominately for his back. See Transcript, p. 5. He described his parachute training and his 1962 injury. The Veteran testified at a second hearing in September 1991. He stated that he was injured on his fifth jump in service. He was asked about the record of the injury to his back when he fell out of his bed and he said that was a minor injury that occurred before the parachute injury. He said that shortly after discharge he received treatment from Dr. S.J.B. for spasms and pain, and he was told by this doctor that this was the result of his parachute jumps. The Veteran acknowledged he had fallen at work in October 1963 but said that he had been having trouble with his back prior to that time. He added that he had experienced continued pain in service following his parachute jump injury but that he did not report this as he did not want to be taken off jump status. See Transcript. An April 2002 VA X-ray study revealed disc degenerative disease and arthritis from L3 to L4. The Veteran has continued to receive periodic VA treatment since 2002. The Board obtained an expert opinion from an orthopedic spine surgeon. 38 C.F.R. § 20.901 (2013). This opinion was received from a physician associated with the University of Maryland School of Medicine in February 2013. The physician noted the Veteran's service. He stated that the records establish that the Veteran had a congenital abnormality in his low back at the L5 level diagnosed as spondylolisthesis. The January 1962 treatment for back strain was noted, as was the Veteran's testimony regarding his five parachute jumps and his claimed injury in the final jump, the February 1962 treatment for a right shoulder injury the day after the final jump, and the February 1962 treatment for low back pain due to falling out of bed four weeks earlier. The examiner noted that this would place the bed injury to just before the January 1962 back treatment. The examiner observed that the Veteran did not receive any additional in-service back treatment after February 1962 and that the back was normal on the June 1962 discharge examination. The Veteran was not seen again for low back symptoms until December 1964, which was two years and six months after discharge and nearly three years after the parachute jump injury. The Veteran reported the October 1963 fall at that time but did not mention any previous injury. The February 2013 examiner opined that the Veteran did not experience a continuity of symptoms in the low back sufficient to establish a chronic disability during active service or for at least two years after discharge causally related to either the fall from the bunk or the parachute jump. He continued to opine that a pattern of disability did not emerge until the October 1963 fall, after which the back gradually worsened until the spinal fusion was required, which was centered on the zone of his congenital anatomic abnormality. The medical expert opined that it was less likely than not that the Veteran's low back disability identified since service was caused by an injury during service. Instead, he believed that the congenital abnormality of the spine along with the injuries after service such as the October 1963 fall and 1974 vehicle accident were more likely than not the cause of his symptoms, need for surgery, and any possible recent disability. Finally, the examiner noted that while the service treatment records showed back treatment, they did not show that he developed a back disability at the level of the low back. The examiner believed that the in-service injuries were acute and transitory at least in regard to the low back. Analysis As just discussed, the record shows a current low back disability and back complaints in service. Hence, two of the three elements needed for service connection are established. Entitlement to service connection for a low back disability is not established on a presumptive basis. Although there are current findings of arthritis, there were no findings of arthritis in service and no X-ray evidence of arthritis in the year after the Veteran's discharge from service. Absent X-ray evidence, arthritis was not present to a compensable degree within one year after service. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). This precludes service connection on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Furthermore, the evidence does not demonstrate continuity of symptomatology during the period between the Veteran's 1962 treatment in service and the low back disability which was eventually diagnosed following discharge from service. The medical expert opined in February 2013, that the Veteran did not experience a continuity of symptoms in the low back sufficient to establish a chronic disability during active service or for at least two years after discharge. Instead, a chronic disability did not manifest until after the October 1963 injury. The Veteran has at times provided competent reports of continuing back pain beginning in service; however, a careful examination of his statements shows that they are inconsistent and hence not credible. At the September 1988 hearing he denied having received any treatment following discharge from service for his back until 1964. At the September 1991 hearing he stated he experienced back pain and sought treatment for his back from Dr. S.J.B. shortly after discharge. This testimony is not supported by the contemporaneous record, in that the February 1965 letter from Dr. S.J.B. says that he first saw the Veteran for his back problems in December 1964, which was two and a half years after service. The record contains four letters written in 1964 from three different doctors, and that none of these refer to any history of back injuries or complaints from the Veteran prior to the October 1963 fall. The Board must conclude that the preponderance of the evidence is against a finding of continuity of symptomalogy during the short period between the Veteran's in-service injuries and the post service October 1963 fall and subsequent disability. The preponderance of the competent medical evidence is also against a finding that any current low back disability was incurred in or aggravated by active service. The only favorable medical opinion is the February 1965 letter from Dr. S.J.B. which says that "It is my considered opinion that whatever disability he has now is the direct result of his accident". He did not indicate to which accident he referred. The doctor noted that the Veteran never had back problems prior to entering the Army and referred to an injury he sustained in a fall about two years earlier. This fall would have placed the fall after service. The in-service fall shown in the record would have been a little less than three years prior to the initial December 1964 visit and the post service fall would have been about one year earlier. The Veteran testified at the September 1991 hearing that Dr. S.J.B. told him his back disability was the result of his injury in service. However, the Board has already discussed the Veteran's statements regarding Dr. S.J.B. and found problems with his credibility as to several points, including when he was first seen by Dr. S.J.B. for back problems. The doctor said that it was not until December 1964. Therefore, even if this opinion is based on the in-service injury, it is of little value in view of the fact that the October 1963 post service fall was not acknowledged. Dr. S.J.B.'s opinion is based on an incomplete record and is far from definitive. Cf. Nieves-Rodriguez. In contrast the February 2013 medical expert was based on reported consideration of the entire record. This doctor had the advantage of reviewing the Veteran's service treatment records as well as all post service medical records. He specifically noted all of the Veteran's injuries, the fact that the Veteran has a congenital abnormality at L5, and when the Veteran's disability first manifested. Finally, this doctor accurately observed that the location of the in-service treatment was either not noted or in the upper lumbar area, and not the same location as the 1968 fusion. In view of the all of these factors, the Board finds that this opinion is the most persuasive. It follows that there is no basis for a nexus between the Veteran's in-service complaints and his current disabilities. Finally, there is evidence of a congenital condition of the lumbar spine was noted as early as May 1964. The August 1964 letter from Dr. T. specifically states that the Veteran had "a congenital defect of the posterior arch, that is the lamina of the 5th lumbar vertebra." It adds that this could have been aggravated by the fall. While Dr. T. did not identify the fall in this letter, he does state that the Veteran's symptoms began following the October 1963 fall in his June 1964 letter. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). It follows that service connection may not be established for a congenital defect. See Quirin v. Shinseki, 22 Vet. App. 390 (2009). Although service connection cannot be granted for a congenital or developmental defect, service connection is possible for superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAGCOPRES. 82-90 (1990). In this case, any superimposed disability, as discussed above, is unrelated to service. The February 2013 independent medical expert opinion was that the "congenital abnormality of the spine along with the injuries suffered after military service," were the cause of any current disability. The evidence is against a link between any current low back disability and a disease or injury in service. As the weight of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. ORDER Entitlement to service connection for a lower back disability, status post-operative, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs