Citation Nr: 1330366 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-11 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for degenerative disk disease, status post lumbar fusion, rod and pedicle screws, claimed as a lower back disability. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty from August 1988 to August 1992 and had additional reserve service. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In September 2012, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. FINDING OF FACT With resolution of reasonable doubt in the Veteran's favor, the Veteran's lower back disability is related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative disk disease, status post lumbar fusion, rod and pedicle screws, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim for service connection for low back disability the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Service Connection Laws and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran had been diagnosed with degenerative joint disease of the lumbar spine. Arthritis is a "chronic disease" listed under § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim for service connection for a lumbar spine condition. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b) . Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, became manifest to a degree of 10 percent or more within one year after the date of separation from 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran contends that a current low back disability is related to back pain that he had during active service. At the Board hearing in September 2012, the Veteran testified that he was in an honor guard in service and had to stand for hours at a time without moving. The Veteran testified that he started to notice back problems after six months of his honor guard duties. The Veteran had active duty from August 1988 to August 1992. Service treatment records show that the Veteran was seen in sick call in July 1990 with a complaint of low back pain for two years, getting progressively worse. An assessment of low back pain was noted. A report of an x-ray dated in July 1990 reflects an assessment of no acute bony pathology or significant degenerative change. The separation examination dated in January 1992 reflects a normal clinical evaluation of the spine. In this case, the evidence of record does not show that degenerative joint disease of the lumbar spine manifested to a compensable degree within one year of separation from service. As there is no finding or diagnosis of arthritis of the lumbar spine within one year of separation from service, there is no basis for presumptive service connection for arthritis of the lumbar spine as a chronic disease manifesting to a compensable degree within one year of service separation. 38 C.F.R. §§ 3.307, 3.309. The evidence of record reflects post-service treatment for the lumbar spine since 2006 and a current diagnosis of degenerative joint disease of the lumbar spine. There are several medical opinions in evidence regarding the issue of a medical nexus. The Veteran had a VA examination in April 2008. The VA examiner diagnosed degenerative disk disease, status post lumbar fusion, rod and pedicle screws. The VA examiner opined that it is less likely than not that the Veteran's symptomatology in service was the first manifestation of his disk disease, which occurred later in life. The VA examiner reasoned that the Veteran's documentation in service was two visits, one initial for back pain and a follow-up. He noted that both of these were in 1990. The VA examiner noted that the Veteran's discharge examination was negative for any back pain or complaints, both on review of medical history and on examination. The VA examiner noted that there was no documented treatment from 1992 until 2004, when the Veteran had back pain after playing basketball. The VA examiner noted that, from that point on, the Veteran had significant problems with his back related to his disks. The VA examiner opined that the rationale was based upon a lack of intercurrent treatment, no documented acute injury in service, and that pains were located in the mid to low back in treatment notes. The VA examiner noted that the Veteran's subsequent employment was related to forest service work fighting fires, cleaning up areas and then with correctional activites of doing rock climbing and wall climbing. The VA examiner noted that, in two VA compensation and pension examinations, there was no request for back problems or indication of back problems until after surgery in 2006. In a statement dated in March 2009, Dr. R.S., M.D., noted that he reviewed the medical record of July 1990 of plain x-rays as well as a clinical visit for low back problems. Dr. R.S. opined that, based on the fact that his pain presented during his military service, it was his opinion that the Veteran's military service more than likely is linked to his present back problems and condition. In June 2012, Dr. R.S. noted that he reviewed medical records from the Veteran's time in the military from 1988 to 1992 and noted that there were documented back pain complaints at that time. Dr. R.S. opined that the Veteran's current back pain symptoms are related to military service. A March 2009 private treatment note from Dr. J.F., M.D., reflects that Dr. J.F. diagnosed low back pain that is a result of disk protrusion that occurred during the Veteran's military history and has continued to cause him pain. Dr. J.F. opined that this more than likely had never been fixed since he was in the military, and now he probably has worsening pain because of the internal fixator. Dr. J.F. provided an additional opinion in April 2010, in which she opined that the back pain that the Veteran experiences now is in direct correlation to his military service. In an April 2009 statement, a private physician, Dr. S.R., M.D., opined that he was of the opinion that the Veteran's spinal problem is of a long standing nature and is more than likely related to vigorous exertion that he endured in service. In a statement dated in April 2009, a VA physician, Dr. J.K., noted that he reviewed the Veteran's records from service in the Coast Guard. Dr. J.K. opined that it is possible that his back/ lumbar spine disk problems began during that time. In an August 2009 statement, a private chiropractor, Dr. S.C., D.C., discussed the history of low back pain during service and the post-service treatment history. Dr. S.C. opined that the documents show that the Veteran had no previous back conditions or symptoms upon his entrance into the military. She stated that she could only conclude that the onset and resultant permanent back problems are more probable than not related to his service and duties in the military. A May 2010 VA treatment record reflects that a VA physician reviewed several of the Veteran's medical records regarding his back and reviewed the medical opinions provided by other treatment providers. The VA physician noted that it was the combined impression of those providers that the Veteran's back pain occurred during his military service in the Coast Guard. The VA physician opined that, after reading the clinical record, he shared the opinion. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims folder. Nieves-Rodriguez v. Peake, 22 Vet. 295 (2008). The positive nexus provided by both private and VA physicians are factually accurate and provided sound reasoning for the physicians' conclusions. The 2008 VA medical opinion, which found no nexus to service, was based upon the VA examiner's conclusion that the Veteran did not have any documentation of problems with his back until 2004. The Board notes that, although the claims file does not reflect treatment of a back disability prior to 2004, medical records in the claims file that the Veteran reported a history of back pain since service. A treatment record dated in February 2006 reflects that the Veteran reported a 15 year history of low back pain, which places the reported onset of back pain to approximately 1991. A physical therapy treatment record dated in September 2007 reflects that the Veteran reported a history of low back pain since the 1980's, when he was in the military. Because the 2008 VA examiner did not fully address the Veteran's reported history of his back disability, the probative value of the medical opinion is lessened. Nieves- Rodriguez v. Peake, 22 Vet. App. at 304 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board finds that the evidence is at least in equipoise. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection for a low back disability have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative disk disease, status post lumbar fusion, rod and pedicle screws (claimed as lower back problems; lumbar) is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs