Citation Nr: 1331616 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 12-08 062A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lumbar spine degenerative arthritis and degenerative disc disease. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Virtual VA and VBMS folders have been reviewed. FINDINGS OF FACT 1. A chronic low back disorder was not shown during service and lumbar spine arthritis is not shown to have manifested to a compensable degree within one year following discharge from service. 2. The preponderance of the evidence is against finding that the Veteran's current lumbar spine disorder is related to active military service or events therein. CONCLUSION OF LAW Lumbar spine degenerative arthritis and degenerative disc disease was not incurred or aggravated during active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in March 2010, prior to the rating decision in question, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. This letter also provided information as to how VA assigns disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records (STRs), VA medical records, and private medical records. The Veteran has not identified additional relevant records that need to be obtained. The Veteran was provided a VA examination in June 2010. The examiner reviewed the claims folder and provided a medical opinion supported by sufficient rationale. The examination is adequate and further examination is not warranted. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Factual Background STRs show that on enlistment examination in June 1959, the Veteran's spine was found normal on clinical evaluation. In May 1961, the Veteran presented with pain in his back and abrasions over the lumbar spine after falling from a tank. X-rays of the lumbar spine were negative. Impression was abrasions and contusions of the lumbar area. On examinations in June 1961 and July 1965, the Veteran's spine was reported as normal. On separation examination dated June 12, 1967, the Veteran's spine was found normal and he denied recurrent back pain. On June 23, 1967, the Veteran was seen with complaints of low back pain after diving and his legs flipped back. Medication and heat were prescribed. In July 1967, the Veteran stated that to the best of his knowledge, there had been no change in his medical condition since his last separation examination. A June 2008 VA primary care note indicates that the Veteran sustained a back injury in 1968 and that he suffers from back problems for which he receives chiropractic care. The VA physician stated that he was "unable to link his prior injury as proximate cause of his current back pain." A March 2010 chiropractic record documents the Veteran's reported history that he has had back pain on and off since 1961 when he fell off a tank on to a concrete paving lot. A March 2010 statement from a private chiropractor, Dr. J.F., indicates that the Veteran had been treated in their office since July 2006 for consistent lower back pain. The chiropractor noted that the Veteran had a chronic episodic lower back condition since 1961 when he fell off a tank onto a concrete parking lot and that he had received treatment since that time. The chiropractor opined that it "is more likely than not that the fall of 1961 is causally related to the lower back pain that the patient continues to experience." On VA examination in June 2010, the Veteran reported that he injured his back when he fell off a tank during service and that he has had problems with his back ever since, with worsening over the last 20 years. Following physical examination and x-rays, diagnosis was diffuse degenerative arthritis and degenerative disc disease of the lumbar spine. The examiner opined that the lumbar spine disorder was less likely as not caused by or a result of the abrasions and contusions of the lumbar area and low back pain. In support of this opinion, the examiner provided the following rationale: [Service treatment records] reveal veteran was evaluated for his abrasions and contusions lumbar area May 10, 1961. Veteran's radiographs of the lumbar spine were negative. Veteran had low back pain after diving "legs flipped back" June 23, 1967. Reviewed note from Dr. [F.] dated March 9, 2010 veteran had been seen for his low back symptoms since July 18, 2006. VA records viewed from January 18, 2006 and are silent for complaints of low back pain. Disc degeneration and accompanying arthritis is a common development. Age related changes are present in 40% of adults over age 35 years and in almost all individuals over age 50 (citations omitted). There is no radiographic evidence of old fracture of the spine. The veteran's diffuse degenerative arthritis and degenerative disk disease of the lumbar spine is less likely caused by or a result of his abrasions and contusions lumbar area, low back pain and is more likely due to the aging process. An October 2010 statement from Dr. J.F. indicates that he had reviewed the Veteran's service medical record which documents a lower back injury caused by falling off of a tank in 1961. The examiner opined "that it is more likely than not that his in-service injury of 1961 referenced above is the cause of his current chronic lower back condition." Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, 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). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F.3d 1339, 1344 (Fed.Cir. 2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir. 2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir. 2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As set forth, there is evidence of a current lumbar spine disorder. Although the Veteran was seen on two separate occasions during service for complaints of low back pain, a chronic low back disorder was not shown during service and there is no evidence of lumbar spine arthritis manifested to a compensable degree within one year following discharge from service. Accordingly, service connection on this basis is not warranted. In making the determination regarding the lack of chronicity during service, the Board acknowledges the chiropractic statement noting the Veteran had a chronic episodic low back condition since 1961. This statement is based on the Veteran's reported history of chronic and continuing low back problems. As discussed in further detail below, the Board does not find these statements credible as they are in conflict with the evidence of record. Thus, this private medical statement is not sufficient to establish a chronic in-service back disorder. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or that are contradicted by other facts of record); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). As arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a) and the Veteran was treated for low back complaints during service, the Board will address continuity of symptomatology. See Walker. The Veteran asserts that he has had continuing symptoms of low back pain since the in-service injury. The Veteran is competent to report symptoms of low back pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a lay person is competent to report on that of which he or she has personal knowledge). The Board, however, does not find the Veteran's contentions credible. In making this determination, the Board is not relying on the absence of further treatment related to the May 1961 injury. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). Rather, the Veteran specifically denied having recurrent low back pain at the time of his June 1967 separation examination. His spine was also reported as normal at that time. The Board acknowledges that the Veteran was seen approximately 11 days later with complaints of low back pain, but this appears to have been a new complaint related to a diving incident. Additionally, the Board notes that the Veteran subsequently denied any changes in his physical condition since his last separation examination - thus indicating no ongoing back problems. Accordingly, service connection on this basis is not warranted. The nexus necessary to establish service connection can also be shown by other evidence that a current condition is otherwise related to service. On review, the record contains various opinions regarding etiology. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. 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. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for medical opinions; rather a review of the relevant medical history is the important factor. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The statement in the June 2008 VA primary care note is essentially a negative opinion. That is, the physician was unable to relate current disability to the reported prior back injury. This statement, however, was not accompanied by rationale and is thus assigned no probative value. The March and October 2010 private chiropractic statements provided positive etiological opinions. These statements support the Veteran's claim in that they relate current disability to the 1961 in-service injury; the statements are based upon a review of the 1961 STR. The proffered medical opinions, however, are not assigned probative value because they are not accompanied by any basis or supporting rationale. The June 2010 VA opinion is against the claim. The Board assigns this opinion significant probative weight. This is because the examiner reviewed the claims folder and provided adequate rationale for the opinion. The examiner specifically discussed the 1961 and 1967 complaints of low back pain, the common causes of disc degeneration and arthritis, and relevant radiographic evidence. Despite a failure to expressly note the Veteran's lay statements regarding continuity, the Board has not found those statements credible and thus the opinion is not rendered insufficient. On review, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Service connection for lumbar spine degenerative arthritis and degenerative disc disease is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs