Citation Nr: 1330477 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-21 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an upper back disorder. 2. Entitlement to service connection for a lower back disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1971 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the claims on appeal. The Veteran's claims were remanded for additional development in May 2011 and in July 2012. In May 2011, the Board remanded the claims to afford the Veteran with a VA examination in order to obtain a medical opinion on the etiology of the Veteran's claimed upper and lower back disorders. The Veteran underwent a VA examination in May 2011. The Board was concerned that the May 2011 VA examiner's rationale appeared to discount the Veteran's reported low back incidents in service that he self-treated. The Board remanded the matters again in July 2012 to obtain a supplemental VA medical opinion report from the examiner who conducted the May 2011 VA examination report. In August 2012, the May 2011 VA examiner provided a supplemental VA medical opinion report, in which he specifically noted that he considered the Veteran's reported history of self-treatment in rendering his medical opinion. In June 2013, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning the etiology of the Veteran's upper and lower back disorders. In June 2013, the Board received the requested VHA opinion. The Veteran submitted a response to this medical opinion in August 2013, and he attached additional medical evidence with a waiver of original consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2012). Since the record reflects that there has been compliance with the Board's 2011/2012 remand directives, the Board may precede with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file has been considered in conjunction with this decision. As noted in a January 2013 memorandum from the Appeals Management Center (AMC) to the RO, it is unclear if the Veteran seeks to file a claim for entitlement to service connection for lung cancer. Therefore, the Board refers the matter to the RO for appropriate action. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran's degenerative arthritis in the low back had an onset during his period or within the first year thereafter, and the preponderance of the competent evidence is against a finding that his current low back disorder is etiologically related to his period of service. 2. The competent evidence of record does not show that the Veteran's degenerative arthritis in the upper back had an onset during his period or within the first year thereafter, and the preponderance of the competent evidence is against a finding that his current upper back disorder is etiologically related to his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 2. The criteria for service connection for an upper back disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, a March 2007 letter provided the Veteran with proper notice, including of what was necessary to establish the underlying claims of service connection, and of his and VA's responsibilities in claims development as well as notice requirements under Dingess. VA has thereby met its obligations to notify the Veteran of the medical and other evidence needed to substantiate his claim and of what evidence he is responsible for obtaining. Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and identified VA and private treatment records have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his cervical spine condition currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. VA has also provided the Veteran with a May 2011 VA examination in conjunction with his claims and an addendum medical opinion was obtained in August 2012. Collectively, the report and the addendum demonstrate that the VA examiner reviewed the evidence of record and rendered appropriate opinion. Any deficiencies in the VA examiner's 2011 opinion were addressed in his 2012 addendum statement. VA also obtained a June 2013 VHA medical expert opinion that addressed this matter and he provided a comprehensive statement in support of his conclusions based on a review of the claims folder. Therefore, the Board finds that the medical opinion reports obtained from the 2011/2012 VA examiner and the 2013 VHA medical expert are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he has declined the opportunity to testify before a member of the Board. 3. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease may be presumed to have been aggravated by active service where there is an increase in disability during service. If there is no increase in severity of the disability, aggravation will not be presumed. In order to rebut any presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Here, the Veteran seeks entitlement to service connection for upper and lower back disorders. The Veteran essentially contends that these back disorders began during or were aggravated by his military service. He reports that he experienced back problems intermittently in service, and as a corpsman, he self-treated himself with medication. The Veteran's August 1971 enlistment examination and medical history records reflect a diagnosis of spondylolisthesis, despite the lack of pathology demonstrated on the contemporary x-ray film. It was also noted that the Veteran had suffered a back injury and he had experienced recurrent back pain three times a week prior to his enlistment. Subsequent October 1971 service treatment records reflect treatment for a low back strain. A March 1972 private medical record shows that the Veteran received treatment after straining his left upper trapezius while doing confidence training in the army. On his June 1973 examination prior to separation, the Veteran's spine was evaluated as normal, despite the notation of possible low back pain: "Etrol." On the associated report of medical history, the Veteran marked that he experienced recurrent back pain, and it was noted that he had intermittent low back pain, without neurologic complications, for which he treated with muscle relaxers. An undated post-service treatment record that appears to be from January 1975 notes that the Veteran injured his back in service and he has intermittent low back aches since then. It also noted that he had mid-back problems at T-10. Physical examination revealed tenderness but x-ray film was negative for abnormalities. He was diagnosed with acute traumatic muscle strain and he received follow-up treatment over the next couple of months. Subsequent post-service private treatment records show that the Veteran continuously sought chiropractic treatment for his low back and upper back starting in 1983 until the present. The records show that the Veteran's complaints were mostly associated with muscle strain. While most of those records do not indicate that the Veteran suffered a trauma or injury to his back prior to his receipt of treatment, some of the records do show the Veteran had a history of Motor Vehicle Accident in 1999 and he received workmen's compensation for lumbar injury in 2005. The first diagnostic evidence of disc involvement is not shown until April 2001 in a private x-ray report that showed findings of decreased spacing at L4-L5. The Veteran was afforded a VA examination in May 2011. The May 2011 VA examiner confirmed diagnoses of degenerative joint disease in the thoracic spine and lumbar spine, and a diagnosis of recurrent strain in the cervical spine. Following review of the medical records, the Veteran's own statements, physical examination, and review of the medical literature, the May 2011 VA examiner concluded that it was less likely as not that the Veteran's cervical, thoracic, and lumbar spine disabilities were caused by or related to military service. With respect to the cervical spine, in support of his negative nexus opinion, the May 2011 VA examiner noted that the Veteran was treated for a single episode of the left shoulder muscle strain in service, which was treated and resolved. The examiner found that there was no further treatment noted in service and the Veteran did not complain of cervical spine problems at his separation. In contrast, the post-service treatment records noted repeated injury to the cervical spine. The examiner felt that the x-ray evidence of spurring from degenerative joint disease was age-related, as well as work-related given the Veteran's history of post-service heavy labor. Although the examiner could not rule out the x-ray findings as a residual of trauma, the examiner noted that there was no evidence of an in-service trauma to the cervical spine and it would be speculative on his part to attribute the symptomatology to the Veteran's post-service motor vehicle accident and workman's compensation injuries. With respect to the thoracic spine, in support of his negative nexus opinion, the May 2011 VA examiner noted that there was no treatment for, or complaints of, thoracic spine problems shown during the Veteran's period of service or at the time of his separation from service. In contrast, the post-service treatment records showed treatment for thoracic spine injuries. Also, the examiner felt that the x-ray findings of the thoracic spine were consistent with the Veteran's age and years of heavy labor. In support of his negative medical nexus for the etiology of the lumbar spine disability, the May 2011 VA examiner stated the following: "A single episode of back pain diagnosed as lumbar strain is noted in service treatment records. Veteran claimed at time of discharge from service [] multiple episodes of lumbar strain during service that were self treated. Veteran served as a medic. Claims of multiple episodes are not substantiated in the records. Physical examination at time of discharge was normal exam. Veteran in private treatment records shows a history of Motor Vehicle Accident in 1999 and Lumbar injury on workmen's compensation claim after service. X-Rays of the lumbar spine show advanced arthritic changes at L4-[L]5 level. This is not atypical for age with obesity. It is speculation that the L4-[L]5 arthritic change is due to the 1999 MVA or to the 2005 workmen's compensation claim. But is not consistent with a single episode of muscle strain documented in service record." In July 2012, the Board was concerned that the VA examiner's rationale failed to fully consider the Veteran's reported low back incidents in service that he self-treated and remanded the matter to obtain an addendum from the May 2011 VA examiner. The May 2011 VA examiner provided addendum statement to his medical conclusion in August 2012. In the addendum report, the VA examiner noted that he had considered both the medical evidence of record and the Veteran's statements about his self-treatment of back problems in service. The examiner noted that there was no indication that the Veteran experienced incapacitation or major injury of the lumbar spine during his period of service, which would require medical intervention. The examiner noted that minor injury that is non-incapacitating or of significant nature that does not produce residuals effects can easily be treated by one self; however, the examiner concluded that minor injury that does not require medical intervention "would not show cumulative effects." Specifically, the VA examiner concluded that the Veteran's self treatment for minor non-specific incidents during his two years of service would not show the cumulative effects as seen on the x-ray film, to include the degenerative disc disease at L4-L5. The VA examiner confirmed that it was less likely than not that the Veteran's current lumbar spine disorder was incurred in or otherwise related to his period of service. A VHA medical expert opinion was obtained in June 2013 that addressed whether the Veteran had a congenital disease or defect noted upon his enlistment into service, and if it was considered a congenital disease, was it worsened as a result of injury during his period of service. Based on a review of the record, the VHA medical expert concluded that the evidence did not support a diagnosis of spondylolisthesis at the time of the Veteran's enlistment into service or at any other point since then. The medical expert noted that there was no radiographic evidence of spondylolisthesis at the time of enlistment to substantiate the reported medical history. The VHA medical expert further stated that either the notation of spondylolisthesis was in error or there was "healing of the pars defect between the time of initial complaints and the time of enlistment." The VHA medical examiner then found that despite the Veteran's complaints of regular episodes of back pain at enlistment and during his period of service, and his continuation of similar complaints since then, "there is no indication of any association between this [Veteran's] long-standing back pain and now radiographic lumbar degeneration and his military service." The VHA medical expert concluded that it was less likely than not that the Veteran's current degenerative arthritis was caused or aggravated by his period of service. Rather, the medical expert felt that the Veteran's degenerative arthritis was related to the natural aging process. Initially, the Board notes that although service treatment record shows that the Veteran had a diagnosis of spondylolisthesis upon his entrance into service, there was no x-ray evidence that substantiated the diagnosis at that time. Despite the Veteran's reports of previous back injury and history of recurrent back pain, he received a normal spine evaluation, with a notation of possible spondylolisthesis on his August 1971 entrance examination. A notation on an entrance medical history questionnaire, standing alone, does not rebut the presumption of soundness. See 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Moreover, the June 2013 VHA medical expert concluded the evidence of record did not support a diagnosis of spondylolisthesis at the time of the Veteran's enlistment into service or at any other point since then, and any notation of spondylolisthesis either was in error or there was "healing of the pars defect between the time of initial complaints and the time of enlistment." Given the lack of x-ray evidence and the normal spine evaluation at the time of enlistment, as well as the VHA medical expert's opinion, the Board cannot find that the record contains clear and unmistakable evidence that the Veteran's spondylolisthesis of the lumbar spine pre-existed his period of service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Furthermore, given the lack of x-ray evidence and the normal spine evaluation at the time of enlistment, as well as the VHA medical expert's opinion, the Board also finds that no congenital defect was present. As such, the presumption of sound applies in this case. See U.S.C.A. § 1111. The Board now turns to whether the Veteran's current low back and upper back disorders, to include degenerative joint disease, are related to his period of service. The record does not reflect, and the Veteran does not assert, that he was diagnosed with a chronic back disorder, to include arthritis, during service or shortly thereafter. His service treatment records show he complained of back pain in October 1971. Although the Veteran reports that he self-treated his back problems with muscle relaxers, it is pertinent that no record during the remainder of the Veteran's period of active shows he sought treatment for back problems or that he was diagnosed with a chronic back disorder. Although the Veteran reported a history of recurrent back pain that he self-treated with muscle relaxers at the time of his separation from service, no chronic back disorder was observed by the examining physician at the time of his 1973 separation examination. The lack of a chronic back disorder during the Veteran's period of service, and normal back at separation are also evidence against a finding that the Veteran sustained a chronic back disorder during service. The first clinical evidence of disc involvement is not shown until 2001, which comes 28 years after his separation from service. There is no medical evidence showing that the Veteran's current upper and lower back disorders had an onset during his period of service or within the first year thereafter. See 38 C.F.R. §§ 3.303, 3.307, and 3.309. The Board acknowledges that service connection can also be award based on continuity to symptomatology of a chronic disease, even though the chronic condition was not shown in service or during an applicable presumption period as long as all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the record shows that the Veteran has current diagnoses of degenerative arthritis (a chronic disease) in his lumbar spine and thoracic spine. The Board finds the Veteran is competent to attest to his observations when his back problems first began and the continuity of similar symptoms since then disorder. 38 C.F.R. § 3.159(a)(2). Moreover, the medical evidence supports the Veteran's lay statements that he has experienced low back and upper back pain since his period of service. The Veteran sought treatment for low back problems in service, and he self-treated his back problems with muscle relaxers throughout the remainder of his period of service. Post-service treatment records starting in 1975, only two years after his separation from service, show that the Veteran again sought medical treatment for back problems, and he consistently sought chiropractic treatment for his upper and lower back since 1984. Weighing heavily against the Veteran's argument of continuity of symptomatology of his current chronic disorders since service are the negative medical opinions by the VA examiner in the May 2011 VA examination report and in the August 2012 addendum report as well as by the June 2013 VHA medical expert. Both the VA examiner and the VHA medical expert opined that it was less likely as not that the Veteran's current lumbar spine disabilities were caused by or related to military service. The VA examiner supported his medical conclusion by providing a lengthy and comprehensive medical statement that reflected consideration of the medical evidence and the Veteran's lay statements. See the examiner's rational statements contained in the May 2011 VA examination report and August 2012 addendum report. The examiner noted that there was no indication in the Veteran's service treatment records that he had chronic disorder or significant injury that would have resulted in his current upper back and low back disorders. Rather, the examiner opined that his current diagnosed disorder were age-related or related to injuries associated with his post-service heavy labor occupation or intervening motor vehicle accident in 1999. Similarly, the June 2013 VHA medical expert also concluded that the Veteran's current diagnosed disorder were age-related. The record presents no competent medical opinion in favor of the claim. The Board has considered the Veteran's assertions that his current diagnosed upper back and low back disorder are related to his period of service. In addition, the Board acknowledges that the Veteran served as a medical corpsman during his period of service, and thus, his opinions regarding medical matters carry weight beyond that of a mere lay person, and will be considered as such by the Board. Although the Veteran is competent to attest to his symptomatology, his competency is distinguished from weight and credibility, which is a factual determination regarding his assertions, and goes to the probative value of the evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Here, the Board considers that the Veteran's assertions to be of limited probative value since he has an interest in any financial benefit awarded to the Veteran. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Moreover, while the Veteran may have had some medical training as a medic, there is no indication in the record to suggest that he has specialized training in orthopedic medicine so as to be able to provide an etiology between his current lumbar degenerative arthritis and his period of service through his observation of his symptomatology alone. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, the determination of the nature and etiology of degenerative arthritis requires diagnostic testing and medical expertise to determine its very nature, which would extend beyond the Veteran's capabilities to assess continuity of symptoms. Rather, the only competent medical opinions of record come from the May 2011 VA examiner and June 2013 VHA medical expert, and their opinions weigh heavily against the Veteran's claims. In sum, the weight of the evidence is against a finding that the Veteran's current upper back and low back disorders are related to service. Even though the Board cannot ignore lay and medical evidence of continuity of back problems since service, the Board finds that the May 2011 VA examiner's and June 2013 VHA medical expert's medical opinions carry more weight against the claim. The preponderance of the medical evidence is against a finding that any current diagnosed upper back and low back disorders are etiologically related to the Veteran's period of service. As such, the benefit-of-the-doubt 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). The claims must be denied. ORDER Entitlement to service connection for low back disorder is denied. Entitlement to service connection for upper back disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs