Citation Nr: 1331761 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-02 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1984 and from January 2003 to May 2004. The Veteran had additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a hearing before the undersigned in April 2012, and a transcript of that hearing is of record. This matter was previously before the Board in April 2013, at which time the Board remanded the claims for additional development of the evidence of record. The Board finds that there has been substantial compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The weight of the competent evidence of record is against a finding that the Veteran has a current low back disability that is related to his first period of military service. 2. The weight of the competent evidence of record supports a finding that a low back disability existed prior to the Veteran's second period of active service, but the low back disability was not aggravated during that period of service. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by any period of service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the Veteran or on her behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). 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 Veteran. 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, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a veteran of the information and evidence necessary to substantiate a claim for VA benefits and to assist veterans in development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice should include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated November 2008 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the November 2008 letter informed the Veteran of information and evidence necessary to substantiate the claim, information and evidence that VA would seek to obtain, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the notice requirements have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records and post-service VA and private medical records have been obtained, to the extent available. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with VA examinations of his low back disability in June 2005, January 2009, October 2009 (with an addendum in November 2009), and April 2013. The Board finds that the examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board finds those examinations to be adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In April 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, and a copy of the transcript of that hearing is of record. In sum, the Board finds that there is no indication in the record that any additional relevant evidence is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Based on Service from July 1980 to July 1984 The Veteran has not argued that his low back disability is related to the period of active duty service from July 1980 to July 1984. Instead, the Veteran has argued that his low back disability is related to subsequent reserve service and to his period of active duty service from January 2003 to May 2004. However, the Board will consider whether the evidence supports a finding that the Veteran's low back disability is related the Veteran's first period of active duty service. 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 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran's claimed low back disability represents an arthritic process, arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and it therefore may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The medical treatment records demonstrate that the Veteran has degenerative disc disease of the lumbar spine and a lumbar strain. Accordingly, the Veteran has demonstrated the presence of a current disability. With respect whether in-service event, disease, or injury is shown, service medical records from October 1982 indicate that the Veteran complained of low back pain over the previous week with tingling into the buttocks. The Veteran was diagnosed with low back muscle spasm and low back sprain. In a July 1984 report of medical history, the Veteran denied having had recurrent back pain. A July 1984 separation examination revealed a normal clinical evaluation of the spine. Accordingly, the Veteran has demonstrated an in-service event or complaint. Regarding the determination of the relationship, if any, between the Veteran's current claimed disabilities and his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran himself has consistently denied that his current low back disability is related to this period of active duty service. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with the symptoms associated with his low back disability, and it finds that he has not done so. 38 C.F.R. § 3.309 (2012). There is no competent medical evidence indicating that the Veteran was treated for a low back condition after separation from active service in 1984, until August 1993, approximately nine years following separation from active service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the Veteran does not contend that he experienced continuous symptoms following that period of active service. Accordingly, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since that period of active duty. Thus, a medical nexus is not shown by continuity of symptomatology, or by allegation of any continuity of symptomatology by the Veteran. In addition, there is no competent medical evidence of record that shows that any current back disability is related to the first period of service. Because the file does not have indications of a relationship between any current back disability and the first period of service, an examination is not needed to seek any medical opinion. 38 C.F.R. § 3.159(c) (2012). The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim. The preponderance of the competent and probative evidence of record indicates that the Veteran's low back disability is not related to his first period of active service. Therefore, the benefit sought on appeal is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Based on Reserve Service and Service from January 2003 to May 2004 The Veteran has argued that he originally injured his back during reserve service while serving as a heavy equipment operator. The Veteran reported that he received treatment at that time from a private physician, but the Veteran has not provided any indication that he received treatment in service for any back disability or that there was any line of duty determination. The Veteran also asserted that he aggravated his original back injury while deployed to Iraq in 2004. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as "noted." 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. 38 C.F.R. § 3.304(b)(1) (2012). While a history of the pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of the condition, that history is to be considered with all other material evidence when determining whether a condition pre-existed active duty service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The above statute regarding soundness requires that there be an examination prior to entry into the period of service on which the claim is based. The presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected. In the absence of an entrance examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238 (1994); Bagby v. Derwinski, 1 Vet. App. 225 (1991). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402 (1996). A pre-existing disease or injury is presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. Jensen v. Brown, 4 Vet. App. 304 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In a July 1988 Reserve prescreening form, the Veteran denied having experienced back trouble. In a December 1991 Reserve Report of Medical History, the Veteran denied having experienced recurrent back pain. A December 1991 Report of Medical Examination for the Reserve noted no issues relating to the Veteran's back. Private medical records dated August 1993 show the Veteran complained of marked back pain after playing volleyball. The Veteran denied acute injury, but he reported a past history of lesser back pain. The examiner's diagnosis was lumbar strain. It was noted there was equivocal evidence of sciatica on the right exacerbated by volleyball activities in addition to his chronic lifting at work and posture. A September 1993 report noted a re-injury to the low back after playing softball. Reports dated in February 1998 provided diagnoses of lumbar sprain, L4-L5 disc injury, and some discogenic low back pain. It was noted that the Veteran was employed as a mail handler and was injured reaching into a bulk mail container to pull out big bags of mail. X-ray studies dated in February 1998 revealed minimal degenerative changes. A January 1999 report noted complaints of acute low back pain and muscle spasm after shoveling snow. The evidence of record does not show that any back injury occurred during active or inactive duty training. There is no entrance examination of record for the Veteran's period of active duty service beginning in January 2003, and the Board observes no other evidence suggesting that the Veteran's low back condition was noted at entrance into service. Therefore, the presumption of soundness does not attach. Smith v. Shinseki, 24 Vet. App. 40 (2010). However, the medical evidence, particularly the February 1998 x-ray study demonstrating degenerative changes of the spine, clearly and unmistakably establishes that a low back disability pre-existed the Veteran's second period of service. Therefore, the Board must determine whether the Veteran's pre-existing low back disability increased in severity during this period of active military service, thereby triggering the presumption of aggravation. Maxson v. West, 12 Vet. App. 453 (1999) (presumption of aggravation is generally triggered by evidence that a pre-existing disability underwent an increase in severity in service); Sondel v. West, 13 Vet. App. 213 (1999). A March 2004 service department report found the Veteran had strained muscles in the small of his back in the line of duty while changing a truck tire. In an October 2004 Functional Capacity Certificate, an examiner indicated that the Veteran had a lumbar strain. In an October 2004 Report of Medical Examination, an examiner indicated that the Veteran had a lumbar strain. In October 2004, the Veteran was placed on a physical profile as a result of, in part, his back pain. The Veteran underwent a VA examination in June 2005, at which time the Veteran indicated that he did not receive treatment in-service for his back pain following the March 2004 incident. The Veteran stated that he had problems with recurrent spasms since the time of his initial injury. The Veteran denied experiencing any recurrent injury to his lower back following separation from service. The Veteran reported that he wore a back brace at work and that his pain was caused by repetitive heavy lifting more than 70 pounds and repetitive bending. It was noted he had worked as a mail handler for the past 10 years and had returned to work after returning from active duty. The examiner noted a normal examination of the lumbar spine with no evidence of muscle spasm. There was no evidence of significant lumbar spine abnormality upon x-ray examination. The Veteran was provided with an additional VA examination in January 2009, and the examination report summarized the Veteran's complaints and treatment related to his lumbar spine. The examiner provided a diagnosis of recurrent lumbar back strain but noted that there were no abnormalities upon examination. The examiner, considering the Veteran's history of long asymptomatic periods and 12 years of heavy mail bag handling, concluded that the Veteran's back condition was less likely related to his time in service. The Veteran was found to have fully recovered from his initial in-service injury. In June 2009, Dr. R.R.C., the Veteran's treating physician, noted the Veteran's history of intermittent back pain since the 1990s. Dr. R.R.C. believed that the Veteran's back pain correlated with his active duty and reserve service, where the Veteran operated heavy equipment. Dr. R.R.C. noted that the Veteran's job required riding over rough surfaces, leading to much jarring and pounding on the Veteran's low back. Dr. R.R.C. otherwise stated that the Veteran has had no one specific event or injury, and the Veteran's current symptoms reflected cumulative trauma. Dr. R.R.C. concluded that the Veteran's symptoms were "significantly related to cumulative trauma from driving heavy equipment" while in active duty service and reserve service. The Veteran underwent an additional VA examination in October 2009, at which time the examiner found a normal lumbar spine with X-ray findings of mild lumbar spondylosis with prominent facet degenerative joint disease at L5-S1. The examiner found it was less likely that the Veteran's previous lumbar strain was permanently aggravated by military service and that there was an acute aggravation in service with likely resolution of that aggravation. In a November 2009 addendum, the examiner stated that there was no back condition that was at least as likely as not related, in whole or in part, to the Veteran's military service. It was further noted that the X-ray findings of mild L4-L5 and L5-S1 facet degeneration were a normal progression of aging. In October 2009, private treatment records indicate that the Veteran was admitted with intractable lower back pain after he experienced sharp back pain while pulling the cord to start his lawnmower. Records show he complained of pain with radiation and weakness down the left leg. A December 2009 magnetic resonance imaging scan of the lumbar spine revealed central and right paracentral disc herniation at L4-L5 focally contacting the right L5 nerve root, small central disc herniation at L5-S1 with moderate narrowing of the bilateral neural foramina, and small right foraminal disc herniation at L3-4 with no compromise of the neural foramen. At an April 2013 VA examination, the examiner reviewed the Veteran's claims file and diagnosed the Veteran with degenerative disc disease and back strain. Upon consideration of the evidence and a physical examination of the Veteran, the examiner concluded that the Veteran's condition of lumbar strain was not related to active duty service. The examiner noted that there was no note of treatment for a back condition relating to heavy equipment operation in-service. The examiner further noted the presence of multiple medical records relating the Veteran's treatment for low back complaints relating to sports, household, and work activities. Accordingly, the examiner found that the 2004 in-service injury temporarily aggravated a lumbar strain that existed prior to 2004. The examiner found, however, that the aggravation resolved itself by 2005, because the 2005 VA examiner noted a normal examination of the lumbar spine with no evidence of muscle spasm. The Veteran's disc and degenerative changes were more likely than not related to aging. Upon review of this evidence, the Board acknowledges that Dr. R.R.C. broadly found that the Veteran's low back disability was the result of "cumulative trauma" that included the Veteran's active duty and reserve service. The Board places greater probative weight, however, on the contrary findings of VA examiners that the Veteran's low back disability was not aggravated by this period of active duty service. The VA examiners, particularly the April 2013 examiner, considered the Veteran's lengthy history of back pain, and considered not only the effects of his service on his low back disability, but also the effects of his recreational and work activities on his low back disability. The Board has otherwise reviewed the medical evidence for any other suggestion that the Veteran's low back disability was worsened beyond the natural progression by active duty military service, and it has found no such suggestion. While the Veteran's service medical records from that period of service demonstrate treatment for a low back disability, there is no medical suggestion that the Veteran's low back disability was worsening beyond the natural progression during that period of service, and his back was found to be normal shortly after separation on examination in June 2005. To the extent that the Veteran believes that his low back disability was permanently worsened by this period of military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, including, for example, experiencing a physical symptom such as back pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board acknowledges the Veteran's descriptions of his symptoms as both competent and credible evidence, and provided the Veteran with several VA examinations based on such descriptions. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether a low back disability was worsened beyond its natural progression during service, the issue of the progression of a medical condition is a determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords the objective medical evidence of record, the weight of which fails to find that the Veteran's low back disability was permanently worsened by his military service, with greater probative weight than the lay opinions. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence shows that no current back disability is due to or the result of the complaints during the first period of service. The preponderance of the evidence is against a finding that any current back disability was incurred during reserve service. The evidence clearly and unmistakably shows that a back disability preexisted entrance to the second period of active service. However, the preponderance of the evidence shows that the preexisting back disability did not increase in severity during that second period of active service. The preponderance of the evidence is also against a finding that any current back disability was incurred during the second period of active service. Accordingly, the claim for service connection for a low back disability is denied. ORDER Service connection for a low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs