Citation Nr: 1333309 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-14 627 ) 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: Kenneth Lavan, Attorney ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from April 1977 to May 12, 1985, and from May 20, 1985 to June 1995. This appeal initially came to the Board of Veterans' Appeals (Board) from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which determined that new and material evidence had not been received to reopen the Veteran's previously denied claim for service connection for a low back condition. In March 2010, the Board reopened and remanded the Veteran's claim for service connection for a low back disability to the agency of original jurisdiction for further evidentiary development. Thereafter, in July 2011, the Board denied the Veteran's claim. He appealed, and in February 2013, the Court of Appeals for Veterans Claims (Court) remanded the matter for further development. FINDING OF FACT The Veteran's low back disability as likely as not had its onset during active duty service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, a low back disability was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). With regard to the issue being adjudicated, the Board is granting the claim for service connection. Thus the claim is substantiated, and there are no further VCAA duties. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the evidence is clear that the Veteran meets the first criteria for service connection, as he has a current spine disability. Id. Reports of x-rays, CT scans, and MRIs, have demonstrated degenerative joint changes of the lumbar spine, as well as degenerative disc disease of the lumbar spine. It is also established that the Veteran had an in-service low back injury. Id. In July 1986, a Wells Fargo truck rear-ended the Veteran's vehicle, resulting in a hospital admission for a paralumbar spasm and other symptoms. Service treatment records demonstrate that he received low back treatment for months after the fact, and on the medical history report he completed at the time of his separation, he indicated that he experienced recurrent back pain. In determining that the Veteran has a current lumbar spine disability, the Board acknowledges that the July 2010 VA examiner determined that there was "insufficient evidence to warrant the diagnosis of an acute or chronic low back disorder or residuals thereof." That finding is contradicted by the examiner's own report; in the report, the examiner cited the various objective test results (MRIs and x-rays) that showed some level of lumbar spine disability, and in providing an opinion, acknowledged the Veteran's disc degeneration. The remaining question, therefore, is whether the Veteran's current low back disability is etiologically related to his in-service spine injury. Id. The Veteran asserts that he has continued to experience residual back pain since the date of the accident. His claims are supported by multiple statements from his spouse, as well as a statement from his employer, for whom he has worked since 1996, the year following his separation from active duty. A January 2007 opinion from the Veteran's attending physician, Dr. F.R.B., related the low back condition to the in-service motor vehicle accident. Dr. F.R.B. indicated that he had treated the Veteran for episodes of severe back pain since October 1998. He had reviewed his "medical records, including service medical records, orthopedic records, as well as other provider records with particular attention to the chronology of symptoms, multiple evaluations, and imaging studies." He opined, "[b]ased on these facts it is my professional opinion that his lower back condition is very likely related to his back injury [on] July 11, 1986 while in military service." Although Dr. F.R.B. did not expound on what he meant by "these facts," it is evident to the Board that he was basing his opinion on the medical records and his treatment of the Veteran. The Veteran submitted an opinion from Dr. C.N.B. in November 2011, subsequent to the most recent Board decision in this case. Dr. C.N.B. reviewed and discussed the chronology of the Veteran's condition, the degenerative joint disease and disc degeneration demonstrated by objective studies, the etiological development of the current disability, as resulting from the lumbar strain, and the time frame for the diagnosis in relation to his in-service injury. Further, Dr. C.N.B. noted that there were no intervening injuries that would be a more likely cause of the current disability. He opined that the current disability was at least as likely as not related to the in-service motor vehicle accident. The record also contains lay statements of individuals who know or have worked with the Veteran. They generally attest to the fact that he has had continued low back problems since service. There are two VA examinations of record that are insufficient to evaluation the claim. An August 2006 examiner, a physician's assistant, indicated that he could not resolve the question presented without resort to mere speculation. Such an examination report is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). A July 2010 examination report is likewise not probative, as the rationale for the examiner's negative etiology opinion is unsupported by the remainder of his report. As discussed above, the July 2010 examiner cited numerous objective tests that demonstrated degenerative joint changes and degenerative disc changes, but subsequently opined, in the diagnosis section of the report, that "[t]here is insufficient evidence to warrant the diagnosis of an acute or chronic low back disorder or residuals thereof." Although he acknowledged the existence of the test results in his opinion, he failed to address why those test results did not constitute "an acute or chronic low back disorder." Notably, the July 2010 examiner did not perform x-rays, an MRI, or a CT scan of the Veteran's lumbar spine; he only subjected the Veteran to a physical examination. The July 2010 examiner's opinion was also internally inconsistent with the remainder of his report in his finding that "[t]he Veteran's examination today is unrevealing of objective abnormalities, only subjective complaints of pain causing guarding of movement." In contrast to that opinion, the examiner's report specifically noted "objective evidence of pain following repetitive motion." As the July 2010 examiner's report is inconsistent, the Board finds that it is not based on sound reasoning, and is therefore not particularly probative for adjudicating this matter. Id. The Board further notes that a November 2005 private medical opinion from Dr. P.D.S. that "[i]t is possible that [the Veteran's] current low back condition is related to his military service," is speculative, and is therefore also not probative without more rationale. Id. Thus, the only probative evidence concerning the etiology of the appellant's low back disability are the opinions of Drs. F.R.B. and C.N.B., both of which related the current disability to the in-service motor vehicle accident. As such, the evidence supports a finding that the Veteran has met the three prongs for service connection, and that a grant of his claim is warranted. 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. The Board observes that the Court's February 2013 remand instructed the Board to obtain additional records and a new examination; such development is not necessary, however, in order to grant the claim. Initially, the Court instructed VA to obtain service personnel records from the Veteran's service in the Navy. Unrelated to the Court's remand, and in fact, prior to the Court's remand, the RO obtained microfiche copies of some, if not all, of his service personnel file for that initial period of service. Indicated to be the best copies available, those records are for the most part unreadable due to being of poor quality. While it is possible that more service personnel records may exist, as the April 2012 request for those records indicated that the request was for possible posttraumatic stress disorder-related documents, there is nothing in the records to suggest that the microfiche is not a complete record for his time in the Navy. Upon review of the records, it is evident that there is nothing in those records that would warrant an additional examination, especially considering that most of the records are illegible. The Court instructed VA to obtain a new examination should the relevant service personnel records be obtained. In addition to the fact that the records are not legible, the Board notes that in 2012, the Veteran submitted an "independent" medical examination report that specifically addresses the merits of his claim. As such, there is a sufficient evidentiary basis upon which to grant the claim, without resort to additional time-consuming remand and development. Therefore, the Board is not remanding the appeal as indicated by the Court. Rather, the Board has determined that the proper course is to grant the Veteran's service connection claim. As his claim is granted in full herein, he is not prejudiced by the Board's actions. ORDER Entitlement to service connection for a low back disorder is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs