Citation Nr: 1331294 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-13 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a lumbar spine disability, to include arthritis, sciatica, and/or radiculopathy (claimed as a back injury). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1960. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which denied the Veteran's claim. The Board observes that, although the Veteran previously requested the opportunity to testify at a personal hearing before a Decision Review Officer, by means of a February 2009, he confirmed that he actually wished to withdraw his request. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2012). The Board has previously considered this claim. In March 2012, the Board remanded this claim to the RO via the Appeals Management Center ("AMC") in Washington, DC, in order to ensure proper VCAA-compliant notice was provided to the Veteran; to obtain specified VA treatment records; and to obtain a supplemental opinion regarding whether the Veteran's current lumbar spine/low back disability is related to his active service. The record reflects that the Veteran was provided the requisite notice and attempts to obtain the specified VA records were made. However, because there was not substantial compliance with the Board's remand directives regarding the VA examination, in December 2012, the Board again remanded the claim to the AMC. See Stegall v. West, 11 Vet. App. 268 (1998). Once again, however, the examination report was inadequate upon which to base a decision in this case. Thereafter, in May 2013, the Board referred the claim for an expert medical opinion by a Veterans Health Administration ("VHA") physician, which was received in June 2013. As the VHA opinion was predicated on a complete review of the Veteran's claims folder, including the previous examination reports and the Veteran's assertions regarding his symptomatology, as well as the physicians' own expert knowledge, the Board finds the opinions, taken as a whole, to be adequate upon which to base a decision in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (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 notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative medical evidence of record establishes that the Veteran's low back disability manifested many years after service and is not related to any incident of active duty service. CONCLUSION OF LAW The Veteran's low back disability was neither incurred in, nor aggravated by any event, injury or disease of service, and arthritis of the lumbar spine did not manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By means of a letters dated January 2007 and April 2012, the appellant was informed of the types of evidence needed in order to substantiate his claim of entitlement to service connection, the division of responsibility between himself and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess and informed the appellant of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the appellant's service treatment records, available post-service treatment records, VA compensation and pension examination reports dated March 2007 and April 2012, and the June 2013 VHA opinion. The claims folder also contains the appellant's statements and testimony in support of his claim. The appellant has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. As discussed above, the Board finds the VA examinations, taken as a whole, adequate upon which to base a decision in this case. The Board also concludes that all procedures to obtain records pertaining to the Veteran's claim have been correctly followed. In this regard, VA made an attempt to obtain treatment records from the Fresno, California, VA Medical Center ("VAMC") for the periods January 1960 through December 1989. The Court has held that where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In a September 2009 formal finding memorandum, the RO determined that all procedures to obtain VAMC treatment records for the period January through December 1970 had been correctly followed and exhausted. The Veteran was notified of these findings via a September 2009 letter, which asked him to provide any VA treatment reports he had in his possession. Thereafter, in a May 2012 formal finding memorandum, the RO determined that all procedures to obtain VAMC treatment records for the period 1960 through 1989 had been correctly followed and exhausted. By means of an April 2012 letter, the Veteran was again asked to provide any treatment records he might have in his possession, and was also provided with forms giving VA authorization to obtain private treatment reports on his behalf. Although he completed the forms, requesting that VA attempt to obtain his treatment records from the Cincinnati, Ohio, VAMC, he was informed via a May 2012 letter that these records had already been obtained and associated with the claims folder. Moreover, although VA attempted to obtain records the Veteran identified for back treatment he received in 1985 from St. Agnes Medical Center, a July 2012 letter from St. Agnes indicated that all records older than ten years had been destroyed. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.; 38 C.F.R. § 3.159(c)(2). 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 the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Legal Criteria and Facts The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") 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 professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, such as arthritis, will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran claims that his current back disorder is the result of a back injury he sustained in 1957 during active duty service. Service treatment records shows that, in May 1957, he was seen in sick call with reports of having injured his back while serving aboard an aircraft carrier. The Veteran specifically claims that, during a storm, a line on a heavy reel (400-500 pounds) broke loose and was swinging about, and he injured his low back when he grabbed the reel to keep it from hitting other service members. The treatment record shows that he had good range of motion. The treating clinician described the injury as a "wrenched back," and prescribed ASA (acetylsalicylic acid). Service treatment records show that in March 1960, the Veteran was again seen with complaints of low back pain, which he said he had experienced about once per year for many years; although the Veteran admitted to having experienced low back pain prior to enlistment, his July 1956 service enlistment examination revealed normal findings and no evidence of a back disorder. The March 1960 examiner noted the Veteran had good range of motion with normal reflexes and negative straight leg raises bilaterally. The diagnosis was low back strain, chronic. During the Veteran's July 1960 separation examination, findings for the spine were within normal limits. Post-service treatment reports of record show no evidence of complaints of, treatment for, or a diagnosis of a low back disorder until January 2006, when the Veteran was seen at the VAMC with complaints of continuing intermittent back pain. The assessment was degenerative joint disease with intermittent back and knee pain. Although the Veteran contends that he received treatment for a low back disorder in the 1960's, 1970's and 1980's, as noted above, attempts to obtain those records were unsuccessful. In March 2007, the Veteran was afforded a VA spine examination, at which time, he reported the aforementioned 1957 injury. He also reported that he had sustained "a couple of minor falls" without injury and occasional "mild back sprains" over the years. The examiner diagnosed multilevel degenerative disc disease and degenerative arthritis, lumbar spine, and opined that the condition was less likely than not due to the Veteran's 1957 in-service injury. His rationale was that there was no evidence of a residual spine problem at the time of the Veteran's 1960 service separation examination, which he said suggested that the Veteran's 1957 back injury was not significant. In April 2012, the Veteran was afforded a second VA examination at the request of the Board in order to ensure that the examiner took the Veteran's assertions of continuity of low back pain since service into consideration. The "medical history" portion of the examination report indicates that the Veteran was seen by a neurosurgeon in 1985 and was diagnosed with degenerative disc disease of the lumbar spine, multilevel, with moderate spondylosis and lumbar radiculopathy, lower extremity, mild. An x-ray revealed disc narrowing at the L4-S1 level with moderate spondylosis at L1-S1. The examiner opined that the Veteran's back disorder was less likely than not the result of his 1957 back injury, which he described as a "strain." Although the examiner's notation is difficult to understand, he appeared to state that the Veteran had only been treated for a back disorder once during service, had no evidence of a back disorder at separation, and had not been seen again for treatment until 1985. He said that it was reasonable to conclude that the Veteran's back pain was due to natural causes unrelated to the injury he sustained in service. In this respect, the Board observes that the Federal Circuit has held that, medical evidence is not categorically required when the determinative issue involves either a medical etiology or diagnosis, but rather may, depending on the facts of the case, be established by competent lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Davidson reaffirmed the Federal Circuit's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), that VA must consider the competency of lay evidence, and cannot reject outright such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. Moreover, in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382. In December 2012, the Board returned the Veteran's claims folder to the examiner who performed the April 2012 examination for clarification of his opinion. Again, the examiner was instructed that, in light of the Veteran's report of low back symptomatology since service, he could not cite a lack of treatment since service as a rationale for his opinion. Thereafter, in a December 2012 addendum, the VA examiner again noted that there was no evidence of a back disorder at separation from service and no records of treatment following that time. Thus, he again opined that it is less likely that the Veteran's current back pain is related to service. As noted above, in May 2013, the Board requested an expert medical opinion from a VHA orthopedist. After reviewing the complete claims folder, including the Veteran's service and available post-service treatment records, as well as the March 2007, April 2012 and December 2012 VA examination reports, the VHA physician concluded that he could find no evidence to support the association between the Veteran's minor complaints of a single injury in 1957 with the lumbar degeneration noted on radiographs in 2007. In this respect, he noted that there is no mainstream medical literature that shows such a connection. He also observed that the Veteran's March 2007 lumbar spine x-ray showed appropriate degenerative changes for a septuagenarian, noting that this type of degeneration is seen almost universally at that age; the Veteran, who was born in 1937, was at that time 70-years-old. The physician continued by emphasizing that this was not a pathologic finding, and that there certainly was no indication that it was caused or aggravated by the Veteran's military service, to include his May 1957 incident of a "wrenched" back. In sum, the VHA physician opined that it was less likely than not that the Veteran's low back arthritis was caused or aggravated by his military service. He explained that disc degeneration is a fact of life, and even among twenty-year-olds, almost everyone has at least one degenerative disc. He also noted that intermittent episodes of back pain are a fact of life as people age. The clinician further stated that genetic predisposition is the most common cause of early degenerative progression, but in a 70-year-old individual, it would be unheard of to not have disc degeneration. Again, he noted that the Veteran's x-ray findings were typical for his age group, with or without a genetic predisposition. III. Analysis and Conclusion Based on a review of the complete evidence of record, the Board concludes that the probative evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include arthritis, sciatica, and/or radiculopathy. In this regard, as noted above, the Board has considered whether service connection is warranted either on a direct or presumptive basis. The Board notes that, whether a physician provides a basis for his or her medical 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 folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). With regard to granting service connection on a direct basis, the Board finds the most probative evidence to be the opinion from the VHA orthopedist, who, after thoroughly reviewing the medical evidence of record, as well as taking into account the appellant's history concerning his disorder, provided a detailed and comprehensive rationale for his conclusion that the Veteran's current lumbar spine disorder is less likely than not related to any aspect of active duty service. In addition to the medical evidence, the Board has also considered the statements of the Veteran as to the cause of his back disability. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that back pain is the type of symptom the appellant is competent to describe, his statements have some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, there is no evidence that the appellant has medical knowledge or training that would permit him either to diagnose, or determine the etiology of a complex spinal disorder like degenerative disc disease. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a claimant is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the appellant's sincere belief that his current degenerative disc disease stems from his injury during military service, his statements in that regard are not competent. Lastly, the record does establish that the appellant has a chronic disease, arthritis. See 38 C.F.R. § 3.309(a). Generally, once established subsequent manifestations of the same disease process are service connected unless clearly due to intercurrent cause. Here, the most probative evidence (as established by a medical professional), establishes that the appellant has an age-related arthritis of the low back. This establishes that there was a clear intercurrent cause and that there is no relationship to service. To the extent that the Veteran asserts that he has had continuous symptoms of low back pain due to arthritis since the 1957 injury in service, the Board notes that service treatment records show that the Veteran himself reported the onset of low back pain prior to service with annual recurrences since then. Notably, the Veteran now asserts that there was some confusion about that entry as he only answered yes to that question because "everyone has some kind of back pain in their life time"; and he asserts that he never had any back pain before he went into the Navy despite his very specific description of the nature and frequency of the back pain in his service records. See April 2012 VA Form 21-4138. The Board also notes that there is an absence of any documented complaints or treatment for a low back disorder for decades after the Veteran's separation from service. The absence of any clinical evidence of a low back disorder to include arthritis for decades after service weighs against a finding that the Veteran's current low back disability to include arthritis was present in service or in the year or years immediately after service. In light of the absence of any low back abnormalities on separation, the absence of any clinical evidence of treatment for a low back disability for decades after service, and the Veteran's inconsistent statements concerning the onset of chronic low back pain, the Board concludes that his reports concerning the history of this disability, including those of a continuity of symptomatology since service, are not reliable. Thus, neither the clinical record nor the lay statements of record establishes a continuity of symptomatology in this case, precluding an award of service connection on this basis. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for a lumbar spine disorder on a direct basis. Moreover, because there is no evidence that the Veteran developed arthritis of the low back to a compensable degree within the first year of separation from active duty service, service connection for degenerative arthritis on a presumptive basis is also not for application. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also considered the benefit of the doubt rule in this case, but as there is no reliable evidence of a nexus or evidence of continuous symptoms as to arthritis, the preponderance of the evidence is against the claim. As the evidence is not in equipoise, there is no basis to apply the benefit of the doubt rule. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lumbar spine disability, to include arthritis, sciatica, and/or radiculopathy (claimed as a back injury), is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs