Citation Nr: 1331213 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-02 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Although the RO characterized the issue on appeal as service connection for residuals of thoracolumbar strain, the Board has re-characterized the issue more broadly as noted on the cover page given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran has a current back condition including thoracolumbar spine strain and degenerative disc disease. 2. Service treatment records (STRs) establish that the Veteran sustained occiptal contusion when he fell from the fuselage of a plane in March 1975; the Veteran contends that he injured his back also in this fall. 3. STRs reflect that the Veteran complained of back pain during service in July 1975, and the examiner's impression was muscle strain. 4. A current back disability did not have its onset in service and is not otherwise the result of a disease of, or injury to, the back in service. CONCLUSION OF LAW The criteria for establishing service connection for residuals of a back injury have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran in June 2009, prior to the initial adjudication of his claim in March 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records and private treatment records. The Veteran has not identified any outstanding evidence. In addition, VA satisfied its duty to obtain a medical opinion. The Veteran underwent a VA spine examination in October 2009. Thereafter, in December 2011, the RO referred the claims file back to the examiner for a follow-up opinion with the specific instruction to consider an STR related to the Veteran's back. In January 2012, the VA examiner offered an addendum opinion specifically discussing the relevant STR and acknowledging that he had considered that record during his initial evaluation. The October 2009 examination with January 2012 addendum is adequate. The examiner considered the relevant history of the Veteran's symptoms, provided a sufficiently detailed description of his disabilities, and provided analysis to support his ultimate opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (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). The examiner noted that the Veteran reported that he had had physical therapy in June 2009 for his back pain. The Board acknowledges that those records are not in the claims file. Nevertheless, the examiner was made aware of the Veteran's physical therapy and was thus provided with relevant information to allow him to make an informed medical opinion. As a result, it is not necessary to obtain those records on remand. A remand to clarify the contents of the private treatment records, which are partly illegible, is unnecessary because the legible portions establish the existence of a back problem which is conceded in this decision. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Entitlement to Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under 38 C.F.R. § 3.303(b) , for particular chronic diseases that are noted in service or within a prescribed period thereafter, service connection may be established by demonstrating a continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). This method is only applicable if the claimed disability is a chronic condition as set forth in 38 C.F.R. § 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with thoracolumbar strain and degenerative disc disease of the lumbar spine, neither of which is considered a chronic disease. As a result, the Veteran is not eligible for service connection on a presumptive basis and may not establish nexus by showing continuity of symptomatology. Id.; 38 C.F.R. § 3.303(b). In addition, in-service nexus may not be presumed based upon a showing of disabling symptoms within the initial post-service year. 38 C.F.R. §§ 3.307, 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Medical evidence of record establishes that the Veteran has a current back disability. Specifically, the October 2009 VA examiner diagnosed thoracolumbar spine strain, and X-rays of the thoracic spine revealed degenerative disc disease. Accordingly, the Board concedes that the current disability element necessary for service connection has been established. Horn, 25 Vet. App. at 236. As to evidence of incurrence of a disease or injury in active service, the STRs establish that in March 1975, the Veteran fell from the fuselage of a plane to the hanger deck. The Veteran contends that he landed directly on his back in this fall; however, this is not specifically confirmed by the STRs. Instead, the STRs reflect that the Veteran was diagnosed with an occipital contusion and put on light duty for the remainder of that day. There is no indication that he sustained an injury to his back at that time. The Veteran was observed overnight. A physical examination performed the following day was within normal limits. No complaints or findings relevant to the back were noted, and the Veteran was returned to full duty in the morning. In July 1975, the Veteran was seen with complaints of lower back pain for a week. He described pain at the right thoracic paravertebral muscles; the pain increased towards the end of the working day. On examination, he had full range of motion of the back and no point tenderness. The impression was muscle strain and aspirin and local heat were prescribed. There were no complaints or findings relevant to the back shown in the STRs for the remainder of service. On a report of medical examination dated in February 1977, clinical evaluation of the spine was normal. Similarly, on a report of medical examination dated in January 1981 at the time of the Veteran's 1981 separation from service, clinical evaluation of the spine was normal. Although no injury to the back was noted in March 1975 when the STRs show that the Veteran fell from the fuselage of a plane, the Veteran's contention that he injured his back at that time is competent evidence because a lay person's testimony about having sustained an injury or having experienced symptoms is considered competent evidence. Therefore, the Board considers both the lay evidence of an injury to the back sustained in the fall in March 1975 and the medical evidence in the STRs documenting muscle strain in July 1975 in the area of the right thoracic paravertebral muscles to be competent evidence of the incurrence of a back injury and back condition in service. Horn, 25 Vet. App. at 236. Thus, the remaining question in this case is whether the current back condition is the result of the injury to the back in the fall or of the muscle strain experienced in service in 1975. The evidence needed to resolve this question is medical evidence. Concerning this, the Board notes that the Veteran's lay statements are competent to describe having sustained an injury to his back in service and to describe the pain that he experienced in his back at and since that time. However, whether the injury sustained has resulted in current thoracolumbar spine strain and degenerative disc disease or whether the muscle strain in service is the same as the strain diagnosed in 2009 is a medical question requiring medical evidence for its resolution. In this regard, the Board notes that lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder). Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, thoracolumbar spine strain and degenerative disc disease are not conditions capable of lay diagnosis or the types of conditions that can be associated with an injury or disease incurred in military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. This is so because both disorders require medical expertise or medical testing or both to establish the diagnoses, and both disorders require medical study and experience about the nature of each disorder to render an opinion about its etiology. For example, an examiner trained to palpate the different muscles of the back on examination and to observe movements during range of motion testing is needed to differentiate between a thoracolumbar spine strain, for example, and some other back disorder that might be the cause of a patient's complaints of back pain or description of stiffness. Likewise, a diagnosis of degenerative disc disease is not capable of lay observation, but instead medical imaging testing by MRI or CT scan may be needed to confirm a clinical diagnosis made by a medical professional upon examination or to assist a medical professional in making the diagnosis. Accordingly, for these reasons, the Board concludes that whether the current back conditions in this case are the result of the injury to the back in the fall in service or of the muscle strain experienced in service in 1975 is a medical question, and lay evidence is not competent to address it but rather it requirs medical evidence. To resolve the question of nexus, the Veteran underwent a VA examination in October 2009, during which he told the examiner that he had been having constant back pain since March or April of 2009 and had missed two weeks of work due to the pain. He stated that three weeks after moving a television, he started having sharp, stabbing pains in the area of his back where he had had pain after falling during service. The examiner noted that the Veteran reported that he had been doing well with regard to any back pain up until that point. The examiner then rendered an opinion regarding whether the current back conditions were the result of the fall in service, noting that the there was no evidence of chronicity of a back condition, and that x-rays did not reveal any evidence of traumatic injury, such as a compression fracture of the thoracolumbar spine associated with the fall. The examiner also noted that the degenerative disc changes were consistent with age-appropriate progression. For these reasons, the examiner concluded, "I am not able to link the incident of the fall off of the fuselage in 1975 to the current back conditions." The examiner then rendered the opinion that it was less likely as not that the Veteran's current back condition was caused by or a result of injuries sustained to his back in the military. Subsequent private medical records dated in March 2010 show the Veteran sought treatment from a private physician to obtain pain medication. The Board notes that these records are partly illegible. However, it does not appear that a definitive diagnosis was rendered or that the Veteran's symptoms were related to his active duty. In rendering the opinion in October 2009, the VA examiner overlooked the STR dated in July 1975 showing that the Veteran was seen with complaints of pain in the area of the right thoracic paravertebral muscles and that the impression at that time was muscle strain. Therefore, the RO requested that the VA examiner provide an addendum to his October 2009 report, and this was accomplished in January 2012. Noting the documentation of muscle strain in the STRs, the VA examiner stated that "[t]his was an acute problem with no additional complaints on the separation exam." The examiner also noted that the Veteran did not have any back complaints that were related to his fall; that there was no evidence of any chronic back condition while in service; and that the Veteran's back complaints at the time of the October 2009 examination were noted to have started around "March or April of 2009." The examiner then concluded that it was still his opinion that it was less likely as not that the Veteran's current back condition was caused by or a result of injuries sustained while in the military. The Board considers the October 2009 VA examiner's opinion and subsequent January 2012 addendum to be probative and persuasive evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to such opinions are within the province of the Board as adjudicator). The opinion is well-reasoned and considers the entire claims file, the Veteran's statements regarding the in-service fall, the impression of muscle strain in the STRs, and the onset of his symptoms in 2009. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the Veteran's history, and the thoroughness and detail of the opinion). The examiner determined that the Veteran's degenerative disc disease was less likely due to the injury or muscle spasm in service because it was consistent with age-appropriate progression of degenerative changes of the spine. Moreover, he was "not able to link the incident of the fall off of the fuselage in 1975 to the current back conditions." Finally, he found the muscle spasm in service to be an acute condition that resolved because it was not shown on the separation examination report. Thus, the Board finds the examiner's opinion is persuasive because it is supported by an explanation that is consistent with the evidence of record. For the reasons noted above, the Board finds the preponderance of the evidence weighs against a finding of that the current back conditions are the result of a disease or injury to the back incurred in service. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule is not for application, and service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back condition is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs