Citation Nr: 1331342 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-00 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to December 1957 and from January 1960 to November 1962. He also served in the United States Naval Reserves, including 15 days of Annual Active Duty Training (ACDUTRA) beginning on March 26, 1977. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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). This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the RO. A transcript of the hearing is of record. This matter was previously before the Board in August 2012 at which time the Board reopened the previously denied claim of service connection for a low back disorder and remanded the underlying merits of the service connection claim to the RO for further development. The matter was returned to the Board in March 2013 when it was again remanded for further development. Such development consisted of medical development to clarify the etiology of the Veteran's low back disability and to obtain any outstanding treatment records. There has been substantial compliance with the Board's August 2012 and March 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's low back disorder, variously diagnosed as lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1), and lumbar spinal stenosis with radiculopathy, is not attributable to active duty service or any period of ACDUTRA or inactive duty training (INACDUTRA). CONCLUSION OF LAW A low back disorder, variously diagnosed as lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1), and lumbar spinal stenosis with radiculopathy, was not incurred in or aggravated by service or any period of ACDUTRA or INACDUTRA, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 VA has fulfilled its duty to notify the appellant in this case. In an October 2008 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claim decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159 (2012). Thus, the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that all necessary assistance has been provided to the appellant including requesting information regarding pertinent medical treatment he may have received and requesting records from the identified providers. In terms of VA examinations, the Board finds that an October 2009 report and a February 2011 addendum, as well as September 2011 and July 2013 examination reports contain sufficient findings and opinions with which to properly decide this claim. Lastly, the appellant was provided with an opportunity to testify before the Board. The Board hearing focused on the elements necessary to substantiate his service connection claim and the appellant, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. In addition, the claims file was left open for 60 days in order to allow the appellant time to submit additional evidence. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claim on appeal, and adjudication of this claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts A service personnel record shows that the Veteran reported for 15 days of Annual Active Duty Training on March 26, 1977, and experienced pains in his back while on a field march on March 31, 1977. The Veteran's service treatment records include a record dated in April 1977 from the Naval Regional Medical Center reflecting a diagnosis of sciatica possibly secondary to herniated nucleus pulposus vs. muscle spasm. The diagnosis was noted to be from an injury incurred during a period of active duty for training and related to obstacle course training and performing a long march in March 1977. Treatment was noted to have consisted of outpatient treatment rendered on three occasions in April 1977. An April 1977 service treatment record from orthopedic service shows that the Veteran complained of low back pain and left leg pain that began while crawling on an obstacle course a few days earlier. Findings revealed left paraspinal muscle spasm with listing to the right. There was no radicular radiation noted. An impression was given of acute low back strain and rule out herniated nucleus pulposus. A service treatment record later in April 1977 notes that the Veteran was doing much better with minimal left buttock pain. An impression was given of herniated nucleus pulposus, resolving. A May 1977 service treatment record shows that the Veteran was improving and getting around better, but complained of back and left leg pain on prolonged standing for two to three hours. There was no parethesias. An impression was given of resolving herniated nucleus pulposus, L5,S1. He was to return for a reevaluation in two weeks. A service treatment record in June 1977 shows that the Veteran reported mild low back pain and no leg pain. Findings revealed mild limitation of motion and negative straight leg raising. He was to return in July 1977. A July 1977 service medical record shows that the Veteran had minimal complaints of low backache with negative straight leg raising and full range of motion of the back. The record contains an impression of herniated nucleus pulposus L5,S1, resolved. The Veteran was found to be able to return to work at wdw (Walt Disney World). A Status Report of Disability shows that the Veteran was examined in March 1977 and found to be physically unfit for normal military duties due to a March 1977 injury. He was not expected to be fit to return to full duty for three and a half months. This report further states that the disability ended in July 1977. The Veteran had an annual Reserve examination in February 1978. He complained of recurrent back pain. Historically, the examiner noted that he complained of back pain but that it was not interfering with his civilian work. On examination, the examiner found a normal spinal evaluation. A record from West Orange Memorial Hospital shows that the Veteran was hospitalized from April 11, 1978, to April 16, 1978, and treated with pelvic traction (eight pounds bilateral), robaxin, and ultra sound. A History Sheet refers to a medical history taken at the time of the Veteran's April 1978 admission wherein he reported injuring his back one year earlier in service. He said he had been treated with bed rest and muscle relaxants for approximately three weeks and had not been able to return to work until approximately six months after the injury. He also said at the time of his April 1978 admission that he noted the acute onset of left hip and left leg pain the night before while moving a washer and it was noted at that time that he might have a herniated lumbar disc with left radiculopathy. He said he had improved with conservative treatment in April 1978 and had done relatively well until his recent admission (in September 1978). In this regard, the Veteran was noted to have reinjured his lower back and left hip approximately two days earlier when he slipped on a ladder and had immediate pain in the lower back and posterior aspect of the left thigh. A lumbar myelogram revealing a large defect from the left, at the L5, S1 level. He was discharged in October 1978. Records from Lucerne Hospital in October 1978 show that the Veteran underwent an L5-S1 laminectomy and left S1 nerve decompression. These records show that he injured his lower back and left hip in September 1978 when he slipped on a ladder and noted the immediate onset of pain in the low back with radiation of the pain down the posterior aspect of the left leg and thigh. He was noted to have received treatment for a similar complaint in April 1978 at which time he reported experiencing a low back injury in service approximately one year earlier. He was also noted to have experienced an acute onset of left hip and leg pain while moving a washer in April 1978. He was discharged in November 1978 in very good condition. A Report of Medical History in February 1980 shows that the Veteran had residual pain and some residual numbness in the left leg post op lumbar laminectomy in 1978. Reports of Medical History dated in February 1981 and January 1987 show that the Veteran was in good health. A Consultation Sheet from the "N&M Reserve Center" in May 1987 shows that the Veteran was eight years status post L-S laminectomy and discectomy for left lower extremity symptoms. This record shows that the Veteran was able to work and perform reserve duties, but was not able to run. X-rays revealed degenerative joint disease, lumbosacral spine, worst at L5-S1. He was found to be fit for duty. A Report of Medical History dated in February 1988 shows that the Veteran was in good health and had no sequelae from the October 1978 laminectomy. On file is a June 2008 private orthopedic record showing that the Veteran reported for an initial evaluation for lower back pain. The pain had reportedly persisted for the past two weeks. He also complained of right lower extremity pain. He had a history of a lumbar laminectomy in 1978 and was noted to have done well until recently. He was assessed as having herniated L4-5 disc with right lumbar radiculopathy. In July 2008, the Veteran filed a claim for service connection for a low back condition which he reported began in March 1977. Subsequent private orthopedic office visits in December 2008, March 2009, and April 2009 show continuing lower back pain with radiation to the right leg. The April 2009 record shows that the Veteran was to be referred to a spine surgeon. He was assessed by The Spine and Scoliosis Center in April 2009 as status post lumbar laminectomy, degenerative changes lumbar spine and left leg radiculopathy, and spinal stenosis. May and June 2009 operative notes from Clermont Ambulatory Surgical Center show that the Veteran underwent a caudal epidural steroid injection with assistance of fluoroscope guidance for needle placement. The preop and postop diagnoses included low back pain, leg pain, lumbar radiculopathy and lumbar spondylosis. He was referred to physical therapy in June 2009. A private magnetic resonance imaging (MRI) report in August 2009 shows a right sided disc herniation at L4-L5 resulting in moderate to severe spinal stenosis and a small to moderate-sized left-sided focal disc protrusion at L5-S1 level causing mild to moderate spinal stenosis at that level. An October 2009 VA examination report shows the Veteran's medical history as including an acute low back injury secondary to physical training in service in 1977 and a workman's compensation low back injury in 1978 due to slipping off a rung of a ladder and falling to the ground jamming his back. After relaying his medical history and examining the Veteran, the examiner diagnosed the Veteran as having lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1) right leg and severe mechanical low back pain secondary to the first diagnosis. The examiner opined that the Veteran's lumbar degenerative disc disease with bilateral lower extremity radiculopathy was not caused by or a result of acute low back injury secondary to physical training in 1977. He explained that the Veteran currently demonstrated L5 and S1 radiculopathy with S1 radiculopathy secondary to developmental aging process and that his predominant pain pattern at present was from his broad based L4-5 disc. He said that this was not present on his 1978 myelogram and developed over the years unrelated to the Veteran's soft tissue injury in service which, he noted parenthetically, had resolved after which he was returned to full duty. He went on to opine that based on the Veteran's medical record history review and examination, the Veteran's inservice injury pattern was not the cause of his current lumbar disc disease and radiculopathy. He said he based his opinion on current orthopedic literature of establishing causation as well as expected aging outcomes. On file is a January 2011 letter from Dr. William S. Cox, a general orthopedist, who reported that the Veteran had been his patient for many years and it was his feeling that his present condition was directly related to the injury he in sustained in March 1977. He relayed that the Veteran had subsequently undergone a lumbar laminectomy and had continued lower back pain with lower extremity radicular symptomatology. He reiterated his feeling that the Veteran's present back condition was directly related to his original injury. In a February 2011 VA examination addendum, the examiner opined that it was less likely as not that the Veteran's current back disorder was caused by or a result of his back injury in service manifested by to herniated nucleus pulposus. The examiner documented review of the Reserve service treatment records and explained that they confirmed that the Veteran's in-service back injury resolved and that he subsequently re-injured his back which led to his current back disorder. The Veteran testified at a Board hearing in May 2012 that his low back condition stems from an infiltration course injury while at Marine NCO School. He said that as he was crawling under barbed wire he felt a pain across his back and down his legs and was diagnosed as having L5-S1 herniation. He also said he slipped in 1978 further aggravating the original injury. He said he retired in 2001 and prior to retirement worked at a desk job at Walt Disney which he began in 1986. He described a re-injury in the early 1980s during a period of active duty for training involving the onset of pain while operating a bulldozer. He also reported a re-aggravation in the middle 1980s when he worked as an officer for a hospital unit and had to walk a lot. He said his only treatment at that time was pain medication. With respect to his two hospitalizations at the West Orange Memorial Hospital in 1978, the Veteran said that the first hospitalization resulted from bending over his car and being unable to "raise up". He said the second hospitalization was from an injury at Disney World at which time he was told he had to have surgery. He said he would send in a medical record from his doctor (Dr. Cox), with an expanded nexus opinion. He also said that records from West Orange Memorial Hospital were no longer available. Another letter from Dr. Cox, dated in June 2012, contains his notation that he had been regularly treating the Veteran since July 1977 except for treatments given to him by The Spine and Scoliosis Center in 2009. He reported that the Veteran was injured in March of 1977. He also reported that the Veteran was found to have a herniated lumbar disc and underwent lumbar laminectomy performed by him in October 1978. After relaying the Veteran's medical history and examining the Veteran, a VA examiner in September 2012 diagnosed the Veteran as having chronic lumbar back pain, lumbar spinal stenosis and lumbar radiculopathy. He opined that the Veteran's back condition was less likely than not related to his service injury. He noted that the Veteran had a longstanding history of chronic lower back pains and his initial documented episode in March 1978 had resolved clinically. He said the Veteran was later found to be fit for duty and was able to complete his military career in excess of 20 years. He said that through the years the Veteran sustained repeat injuries as far back as April 1978 and September 1978. In July 2013, an opinion was obtained by a VA examiner who based his opinion on his review of the Veteran's efile and cprs (computerized patient records system). He said that with respect to the June 2012 private medical record, his opinion remained the same that the Veteran's lumbar spine condition was less likely as not related to his time in service. He outlined the Veteran's back problems in 1977 as shown in his service treatment records which he said confirmed a resolved back injury that occurred while he was on two weeks of ACDUTRA in 1977. He went on to state that the Veteran "acutely" re-injured his back in April 1978 while moving a washing machine. He further reported that in September 1978 the Veteran slipped/fell on a ladder and was diagnosed as having a herniated disc which was the "significant injury" that led to his required surgery. With respect to the private physician's statement, the VA examiner said that "he does not may make a subjective statement based on his available records" and contrasted this with the VA examiner whom he said based the opinion on objective findings and VA guidelines. III. Analysis Pertinent Law and Regulations As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that his low back disability is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21),(24) (West 2002); 38 C.F.R. § 3.6(a),(d) (2012). ACDUTRA includes full- time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). INACDUTRA is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2012). Therefore, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). The definition of active duty also includes any periods of INACDUTRA during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 C.F.R. § 3.6 (2012). See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (if claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, because the Veteran had less than 90 days of ACDUTRA in March 1977, he is not entitled to the one year presumption of service connection for arthritis for that period. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion As the facts above show, the Veteran was treated in April 1977 for a resolving herniated nucleus pulposus, L5-S1, that resulted from obstacle course training and a long march in March 1977 while on ACDUTRA. A Status of Report of Disability shows that the Veteran was found to be fit for full duty three and a half months later, in July 1977. He was diagnosed in July 1977 as having herniated nucleus pulposus L5,S1 resolved. When examined for an annual examination in February 1978 he reported back pain which reportedly did not interfere with his civilian employment. On examination a normal evaluation was recorded. He was found fit for World Wide duty. He does not claim, nor does the evidence show, any back injuries or back treatment during his active duty periods of service from February 1955 to December 1957 and January 1960 to November 1962. While there is no dispute that the Veteran injured his back while on ACDUTRA in March 1977, the Board finds that a preponderance of the evidence is against a finding that the Veteran's present back disability, variously diagnosed as lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1), and lumbar spinal stenosis with radiculopathy, is related to the March 1977 injury. In this regard, there is no indication of medical treatment for back problems after July 1977 until April 1978 when the Veteran was admitted to West Orange Memorial Hospital. While he reported in April 1978 injuring his back in service approximately one year earlier, he also reported experiencing the acute onset of left hip and left leg pain that night before while moving a washer. These records go on to show that he reinjured his low back in September 1978 after slipping on a ladder two days earlier at work. He said that he experienced immediate pain in the lower back and posterior aspect of the left high. A lumbar myelogram taken at that time revealed a large defect from the left, at the L5,S1 level. He asserted that he was told at that time that he had to have surgery, L5-S1 laminectomy, which took place in October 1978. As far as medical nexus evidence, the record contains conflicting opinions. First, there are the opinions of the Veteran's private physician, Dr. Cox, who, in January 2011, said that he had been treating the Veteran for many years and it was his feeling that the Veteran's present disability was directly related to the injury he sustained in March 1977. He did not describe the March 1977 injury nor include any rational with his opinion; moreover, he did not identify what evidence he considered in making his determination. He also stated in June 2012 that he had been regularly treating the Veteran for the most part since 1977 and reported that the Veteran was injured in March 1977. He further reported that the Veteran was found to have a herniated lumbar disk and underwent a lumbar laminectomy in October 1978. Second, there are the VA opinions negating a causal relationship between the Veteran's March 1977 back injury and present back disability. These opinions, dated in October 2009 with an addendum in February 2011, September 2012, and July 2013, are based on a review of the Veteran's claims file. In addition, the October 2009 and September 2012 VA examiners examined the Veteran. The October 2009 VA examiner explained that the Veteran demonstrated L5 and S1 radiculopathy with S1 radiculopathy secondary to developmental aging and that his predominant pain pattern was his broad based L4-5 disc. He pointed out that this was not present on his 1978 myelogram and that it developed over the years unrelated to the Veteran's (inservice) soft tissue injury which resolved. He said he based his opinion on current orthopedic literature of establishing causation as well as expected aging outcomes. The September 2012 VA examiner similarly opined that the Veteran's lumbar spinal stenosis with radiculopathy was less likely than not related to his inservice injury. He noted that the March 1977 inservice injury had clinically resolved and that the Veteran sustained repeat injuries through the years as far back as April 1978 and September 1978. The July 2013 VA examiner likewise opined that the Veteran's present back disability was less likely than not related to service and explained that the Veteran's service treatment records confirmed a resolved back injury while on two weeks of ACDUTRA in 1977. The July 2013 examiner indicated that he had reviewed the favorable private opinion from Dr. Cox above and distinguished the VA opinion from Dr. Cox's opinion by pointing out that the VA opinion was based on objective findings and VA guidelines in contrast to Dr. Cox's subjective opinion based on his medical records. As to the Veteran's assertions of a nexus, while lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009), the etiology of the Veteran's present back disability, variously diagnosed as lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1), and lumbar spinal stenosis with radiculopathy, is a medical matter for which lay testimony is not competent. Indeed, even if the Veteran's lay opinion was competent, the specific and reasoned opinions of the trained VA medical professionals in October 2009, February 2011, September 2012 and July 2013 negating a nexus outweighs the Veteran's general lay assertion of a nexus in light of the medical examiner's training, expertise and specialized knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). They also outweigh the blanket statement from Dr. Cox in January 2011 which, although supports a nexus, does not contain any rationale for the opinion nor does it provide any indication that the Veteran's complete, pertinent medical history was considered. This is especially essential in view of the Veteran's documented postservice back injuries, i.e., the injury from moving a washing machine in April 1978 and slipping on a ladder in September 1978. Although the Veteran testified in May 2012 that he would submit an expanded nexus opinion from Dr. Cox, such an opinion has not been received. Rather, Dr. Cox merely reported in June 2012 that the Veteran injured his back in March 1977 and was found to have a herniated lumbar disc and underwent a lumbar laminectomy in October 1978. For the above reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. See Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a low back disorder, variously diagnosed as lumbar degenerative disc disease with bilateral lower extremity polyradiculopathy (L5,S1), and lumbar spinal stenosis with radiculopathy, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs