Citation Nr: 1333365 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-07 095 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1955 to April 1958. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an April 2007 rating decision issued by the Regional Office (RO) in Roanoke, Virginia. The claim was previously remanded by the Board in December 2012 and in March 2013. The Veteran testified before a decision review officer (DRO) at the RO in April 2011. The Veteran also testified before the undersigned Acting Veterans Law Judge (AVLJ) in October 2012. Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. 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). FINDINGS OF FACT 1. The back disorder did not manifest in service, arthritis of the back did not manifest within the one year presumptive period or for many years after service, and the back disorder is not otherwise related to service. 2. The back disorder is not shown to have been caused or aggravated by the service-connected pes planus. CONCLUSION OF LAW The back disorder was not incurred in or aggravated by service, nor may arthritis of the back be presumed to have been so incurred, and the back disorder is not proximately due to or the result of a service-connected disease or injury, nor is it aggravated by a service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5013, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in February 2007 which explained how VA could assist him with developing evidence in support of his claim. The February 2007 letter also explained what the evidence needed to show in order to establish entitlement to service connection for a claimed disability as well as explained how ratings and effective dates are assigned for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including a letter from a private doctor, VA treatment records (electronically stored and paper), transcripts of the Veteran's hearing testimony, and the Veteran's written contentions. The Veteran's service treatment records (STRs) are unavailable through no fault of the Veteran, having been destroyed in a fire. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Certain private treatment records are also unavailable, the private physician having died. The Veteran's representative requested that no further attempts should be made to acquire these records. The Veteran was provided VA examinations in April 2012 and February 2013, with a June 2013 addendum. A medical opinion was obtained in July 2013. The examiner who provided the July 2013 opinion adequately addressed the issue of the etiology of the Veteran's back disorder based on examination findings, historical treatment records, and the lay contentions of the Veteran. The examiner considered the relevant evidence in connection with determining whether there was any etiological relationship between the Veteran's back disorder and service or whether the back disorder was caused or aggravated by his service-connected foot disability. During the Board hearing, the undersigned discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with the VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. The Board finds that VA has satisfied its obligations under the VCAA in this case and that there has been substantial compliance with the March 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection The Veteran contends that his low back disorder was either caused by service or caused or aggravated by his bilateral foot disability. He contends that he had an in service back injury when he was hit by a tank door and that his flat feet made his back problems worse. The Veteran is service connected for pes planus. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are listed in 38 C.F.R. § 3.309, including degenerative joint disease, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). The Veteran gave different accounts of the accident with the tank door over the years. Initially, several treatment records document that he claimed that he sustained an injury to his left side when he was hit with a tank hatch. He also testified he was hit in the lower part of his side at a 1995 DRO hearing and that he was hit in the side at an April 2011 DRO hearing. At a VA examination in April 2012, the Veteran reported that the tank hatch hit him in the left hip and he fell down. At his hearing in October 2012 the Veteran testified for the first time that he was hit in the lower right back by the tank door. The Veteran also had an injury to his right hip after service in or around January 1977 when he fell or jumped from a building. Although the Veteran complained of back pain at the time, this incident did not appear to have caused a significant back injury in that back x-rays were performed at the time and were reportedly negative. Back x-rays were also performed in the summer of 1977 after the Veteran presented with neuropathic pain in his left lower extremity and they were also negative. A 1981 letter from a former physician of the Veteran states that the Veteran was seen twice in 1958 and once in 1959 for diagnoses of lumbosacral instability and lumbar radiculitis. According to the doctor, the Veteran told him that he had this problem since he was in the service. Chronic complaints of back pain are not documented until the early 1990s although the Veteran sought treatment for other medical problems including his feet prior to that time. At the time he sought treatment for his back, the Veteran complained of a long history of back pain. He continued to seek treatment for his back thereafter and was diagnosed with lumbar stenosis and arthritis. VA records show that he told the examiner that he had back pain for 30 years in January 2005 and in December 2009 he reported that he had back pain for 40 years; thus he dated his low back pain to well after service on both of these occasions. The Veteran was afforded a VA examination in April 2012. At that time, the examiner noted that the injury described by the Veteran was more of a hip injury than a lower back injury. His current diagnosis of lumbar spinal canal stenosis with bilateral lumbar radiculopathy was not established until 1991, although he had symptoms of bilateral radiculopathy as early as 1977 and was diagnosed with radiculopathy in 1977. The examiner noted that lumbar canal stenosis is a gradually progressive degenerative condition which may be related to remote spinal trauma, but in this case there was insufficient evidence of spinal trauma to warrant a connection. At his hearing in October 2012, the Veteran testified he was hit in the right low back, above the right buttock, with a tank hatch that he been improperly secured. He sought treatment in service a few days later. He continued to be treated in service for his low back. Shortly after service, he sought treatment from a private physician for his back (who had provided the 1981 letter). He continued to have back problems over the years and had physical therapy for his back. The Veteran was afforded another VA examination in February 2013. At that time, the examiner noted that Veteran's history of having been hit in the left side by a tank hatch and reportedly had pain since service. An EMG in April 1977 revealed possible neuropathy but a repeat study in November 1982 was negative. The examiner noted earlier medical records clearly reflected an injury to the left hip in 1956. There were normal lumbar spine x-rays in February 1977 and June 1992. Based on those findings, the examiner concluded that the Veteran did not have a lumbar injury in 1956 and did not have any evidence of a radiological abnormality until at least 1992. He explained that lumbar canal stenosis is a gradually progressive degenerative condition which may be related to spinal trauma. However, in this case there was insufficient evidence of spinal trauma to establish a connection. Additionally the examiner noted that the Veteran had flattening of the arches in his feet (which he erroneously referred to a "pes cavus"), but there was no evidence in medical literature associating a pes cavus deformity to lumbar spinal stenosis. Therefore, he opined that the Veteran's low back disorder was not caused or aggravated by the bilateral foot disability. In a June 2013 addendum that examiner clarified that his reference to "pes cavus" was an error. He confirmed that the Veteran has chronic back pain, spinal stenosis, and arthritis. He also explained that while there was an indication of a back injury in service, there were no records to explain the nature or degree of the back injury. No radiological data was available from the private physician's 1958 diagnosis of lumbar instability. He reiterated that x-rays in 1977 and 1992 were negative and a 2001 MRI revealed the spinal stenosis. He noted there was a significant time gap between the Veteran's history of a back injury and symptoms with radiological findings of spinal stenosis. Thus, he was unable to confirm that the Veteran's current back disorder was related to his service without speculation. Another medical opinion was obtained in July 2013. The examiner opined that it was less likely than not that the Veteran's claimed back condition was caused by, incurred in, or aggravated by service. Although the Veteran has flat feet and a pronated gait, the examiner opined that his back disorder was less likely than not associated with his foot disability. November 2008 radiographs showed multilevel degenerative changes resulting in moderate central stenosis at L3-4 and severe central stenosis at L4-5. In the examiner's opinion, these findings were age appropriate and consistent with the Veteran's normal aging process. She agreed with the prior examiner that the Veteran's back disorder was not caused or aggravated by his foot disability. The examiner noted that there was a normal and natural aging process of the Veteran's claimed back condition as demonstrated by serial radiographs. Clinical observations at the Veteran's February 2013 VA examination were also consistent with the natural aging process. The examiner noted that the Veteran had jumped out of a building in 1977 and presented with pain in his right shoulder, hip, pelvis, and lumbar spine. This happened more than 19 years after service and at least as likely as not was a contusion type event and limited in scope and prognostic outcome from his days in service. The examiner noted that the left hip injury reported by the Veteran was not a back injury, and it appeared to be limited in scope since there were no medical records indicating that there was a need for medical follow up or a hint of recurrent residuals. The examiner concluded that it was less likely than not that the Veteran's current back problems were related to his military service. Rather, the claimed back condition was the result of the natural aging process. The Board finds the medical opinions in this case, most significantly the July 2013 opinion, to be highly probative. The examiner considered the Veteran's medical history over many years and concluded, as did the April 2012 examiner, that there was insufficient evidence of a relationship between the Veteran's back condition and his service. Both noted that the injury described by the Veteran was not actually a back injury but more of a hip injury. The July 2013 examiner also considered the impact of any altered gait due to the foot disability but noted that radiographs were inconsistent with the Veteran's claim that his back disorder was caused or aggravated by his bilateral foot disability. She attributed the condition of the Veteran's back to the normal aging process. The Board acknowledges that under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay witnesses may testify to their observations and in some cases even may opine on questions of etiology. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The Board considered the Veteran's lay statements and acknowledges that he is competent to give evidence about what he experienced or observed, such as being hit with a hatch and his history of back pain. Layno v. Brown, 6. Vet. App. 465 (1994). However, the Veteran's testimony at the October 2012 hearing to the effect that he was hit in the right low back with a tank hatch in service is not credible, given the numerous prior occasions when the Veteran described the injury as an injury to the left hip or side. Moreover, while there is some evidence of back problems shortly after service, the Veteran's contentions of continuity of symptoms since separation from service in 1958 are not credible as his statements have been inconsistent regarding the onset of back pain. For example, the Veteran avers continuity of symptoms since service however VA treatment records in December 2009 show he reported having back pain for 40 years, thereby establishing that the current onset of his back pain was in 1969, approximately 40 years after service. Moreover, x-rays of the spine in 1977, almost 20 years after service, were reportedly normal, with no evidence shown of the arthritis or stenosis that is now present. The Board finds that the examiners' opinions are more probative than the Veteran's lay opinion. The examiners' opinions reflect their specialized knowledge, training, and experience as to the etiology of the Veteran's back disorder, as well as consideration of all relevant lay and medical evidence of record. To the extent that the Veteran asserts that his low back disorder is related to service or to his service-connected pes planus, his opinion is outweighed by those of the VA examiners to the effect that his back disorder was not caused or aggravated by service or a service connected disability, including the service-connected pes planus. Arthritis is included among the chronic diseases under 38 U.S.C.A. 1101 and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, the Veteran's assertions of continuity of symptomatology pertaining to his back disorder are both not credible and are outweighed by the 2012 and 2013 medical opinions for the reasons discussed above. There is also no evidence of arthritis within a year of service. While the Veteran sought treatment for his back in 1958, there was no documentation of arthritis at that time and no arthritis was seen on x-ray even 19 years later in 1977. Therefore, inasmuch as the evidence weighs against a relationship to service or to the service-connected pes planus, the record affords no basis to grant service connection for the back disorder on a direct basis or as secondary to the service-connected pes planus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a low back disorder, to include as secondary to the service-connected pes planus is denied. ____________________________________________ M. Mac Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs