Citation Nr: 1334333 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-15 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a lumbosacral spine disability, including arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A Travel Board hearing was scheduled for January 2011; however, the Veteran failed to appear on the scheduled date, and failed to provide an explanation regarding his absence. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2013). In June 2011 and February 2012, the Board remanded the claim for further development. FINDINGS OF FACT A chronic low back disability, to include degenerative arthritis, did not have its clinical onset in service, did not manifest within a year of separation from service, and is not otherwise related to service. CONCLUSION OF LAW A low back disability was not incurred or aggravated in service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In September 2006, prior to the rating decision on appeal, a VCAA letter was issued to the Veteran with regard to his claim of service connection for a spine disability. The letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the Board Remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains service treatment records and post-service private treatment records. In regards to any outstanding treatment records, the Veteran asserted that he received chiropractic care starting in 1976; however, because the Veteran also reported that the chiropractor was now deceased and that his records were unavailable, any attempt to obtain such treatment records would be futile. Additionally, in June 2011, VA advised the Veteran to complete and return the enclosed VA Form 21-4142 for records of treatment provided for his workman's' compensation claim from the State of California and for private treatment records from Dr. Hashimoto, Dr. Doxie, Dr. Weiser , St. Joseph's Hospital and any other private physician who treated him for a back condition. He was advised that he may obtain and submit the information himself. The Veteran did not respond. The June 2011 VA correspondence reflects compliance with the Board's June 2011 remand instructions. In February 2012, the Board remanded the claim, in part, to obtain alleged x-ray records of the in-service accident and any related Article 15 documentation. In response to the request for such records, in February 2012, the National Personnel Records Center (NPRC) reported that the Veteran's complete personnel file records were mailed and there was no record in the file of the requested Article 15. Also, in February 2012, NPRC reported that all available STR's were mailed and prior records were previously mailed in September 2006. The March 2012 VA medical opinion is adequate for the purposes of adjudication and reflect substantial compliance with the Board's January 2012 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the lumbar spine disorder issue in appellate status. II. Legal Criteria & Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. §3.309(a), such as arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding this presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, medical records reveal that the Veteran has been diagnosed as having a various lumbar spine disabilities. For example, December 2006 and July 2011 VA examination reports included a diagnosis of lumbar degenerative disc disease status post L4 laminectomy. A March 2012 VA medical opinion included a diagnosis of spinal stenosis. Thus, a current back disability has been demonstrated. In an August 2006 statement in support of claim, the Veteran wrote explaining that as a heavy duty truck driver for the U.S. Army he drove with truck convoys in Vietnam. He described an incident in October 1968 when he rear-ended the truck in front of him and they both crashed-he received an Article 15. The Veteran reported that ever since that incident he experienced back problems. See August 2006 statement in support of claim. He reported that he felt a great deal of pain in his low back at the time of the accident and was initially diagnosed as having severe strain of his low back. He reported that he was placed on light duty status, but then returned to a combat situation with intermittent low back pain. He indicated that he did not recall any further treatment for his low back condition. See December 2006 VA examination report. On his April 2008 Form 9, he reported that after the accident he went to the medic and was told that his back was swollen. He reported that he was on leave for 30 days and when he returned to Vietnam, he was put on a 5-ton gun truck and experienced a sensation of fire in his back from standing for a long period. He reported that he was later transferred to the service club, so that he would not have to stand all day in pain. He is competent to report symptoms of a back disability, such as pain, as well as a continuity of symptomatology. His reports, however, must be weighed against the objective evidence and their credibility must be assessed. Service treatment records reflect that in July 1968, the Veteran was seen for complaints of a backache in the lumbosacral area from driving. In August 1968, he was seen for headaches, backaches, and dizziness for days. In September 1968, a past history of back trouble in the lumbosacral spine, dizziness, and arm pain was noted. The record noted that the Veteran's back pain was severe while standing at attention. He was prescribed light duty and was to take aspirin as needed. In December 1968, he was seen for low back pain and a tender prostate. Subsequently, in December 1968, he had complaints of low back pain with standing. In May 1969, he had complaints of pain in the coccyx area while driving. A history of prostatitis was noted. He was diagnosed with mild back pain. On February 1971 separation Report of Medical Examination, his "spine, other musculoskeletal" was clinically evaluated as normal. Additionally in a February 1971 statement of medical condition, the Veteran indicated that there was no change in his medical condition since his separation examination. Service Personnel records reflect that the Veteran received an Article 15 in August 1968 for misconduct. His DD Form 214 revealed a military occupational specialty of heavy vehicle driver. A record of assignments in his personnel file reflect that his principle duty number remained the same during his time in Vietnam and on his return and listed such principle duties as heavy truck driver, senior heavy truck driver, and heavy vehicle driver. The objective evidence otherwise indicates that the Veteran's current back disability did not manifest until more than a year after his separation from service. The Veteran indicated that he first sought treatment related to his back in 1976. He reported that that a private chiropractor ordered x-rays studies at that time; however, he could not obtain any records from that doctor as he is now deceased. See December 2006 VA examination report. There is no clinical evidence of any earlier back symptoms following service. Furthermore, the Veteran has provided varying statements as to the history of his back problems. For example, he has contended that back symptoms (including back pain) have persisted ever since he hit a truck in front of him in 1968; however, on February 1971 separation Report of Medical History, he checked the "No" box for "Recurrent back pain," "Arthritis, Rheumatism, or Bursitis," and "Bone, joint, or other deformity." In an April 2008 statement, he reported that he still had back pain in 1971; however, when asked if he had back pain, he responded no because he just wanted to go home. See April 2008 statement. The Board notes that the Veteran also has provided an inconsistent history as to whether he was receiving state disability benefits related to a back injury at work. During his December 2006 VA examination, the Veteran reported that he had been totally injured since 2001 due to a work related injury to his right elbow, right forearm, and right wrist. He indicated that he filed a worker's compensation claim in 2001 and went on full disability status with the State of California in 2005, related to his right forearm, including right elbow and wrist as well as severe back pain. He denied any workman's compensation claim related to a low back condition. At a July 2011 VA examination, however, the Veteran reported that after the military, around 1976, he was hit in the back by heavy rope hook and sought medical attention. He was told that he had a bruise and returned to work without treatment. He stated that he "went out on state disability after an injury to [his] back while on the job sometime around 2003 to 2006." Additionally, the Board notes that the Veteran did not appear to be a reliable historian in regards to the history of his back disability as the July 2011 VA examiner indicated that the Veteran could not specify the details of the work-related disability or injury, but he reported that he thought the he "strained [his] back while lifting something heavy." The examiner also noted that the Veteran did not remember that he had back surgery until the examiner read the x-ray from 2006, which revealed post laminectomy. During his July 2011 VA examination, the Veteran again reported that he last worked in 2003 as a diesel mechanic and that his back, knees, and dizziness prevented him from working. Although, he could not remember when he "injured his back at work . . . maybe 2003." In light of the absence of any objective evidence of back problems during service other than the July, August, September, and December 1968 as well as a May 1969 complaints of back pain, the fact that the Veteran's February 1971 separation examination did not reflect any back abnormalities, and his inconsistent and contradictory and at times forgetful statements concerning the history of his back symptoms, the Board concludes that his reports concerning the history of his back symptoms, including those of a continuity of symptomatology since service are not credible. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis. If a chronic disease, such as arthritis, is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). There must, however, be sufficient observations in service to identify the disease entity. Id. Here, there is no credible evidence showing any diagnosed back arthritis in service. Hence, service connection cannot be granted on this basis. There are conflicting medical opinions as to the etiology of the Veteran's current back disability. Evidence against the Veteran's claim includes a December 2006 VA examination report in which the examiner noted that the claims file was reviewed and summarized the Veteran's medical history. The examiner reported that based on the current C-file review, it was not at least as likely s not that the Veteran's current back condition was related to his back condition during service, including his examinations in September 1968 and May 1969. The examiner reasoned that the Veteran denied any back conditions on his separation physical documents. The Veteran also signed a statement of medical condition dated in February 1971 that noted that he had no change in his medical condition since he had his separation medical examination, prior to his departure from the military service. The examiner noted that there were no medical records related to a low back condition dated in the mid or late 1970s or early 1980s. The examiner commented that according to the medical literature review, Practical Orthopedic, 4th edition by Mercier page 145-146, chronic low back pain with degenerative disc disease was caused by multiple factors, poor muscle tone, faulty work habits, lack of daily exercise, obesity, and personal habits such as smoking. The examiner noted that the Veteran also worked as a diesel mechanic for many years, since his discharge from the military service in 1971. On a July 2011 VA examination report, the examiner noted that the claims file was reviewed. Following examination, in which the examiner assessed the Veteran as having lumbar degenerative disc disease status-post L4 laminectomy, the examiner opined that it was less likely as not, "less than 50/50 probability," that the disability was caused by or a result of service. The examiner reasoned that degenerative disc disease was multifactorial and caused by or exacerbated by age, time, smoking, poor posture, trauma/injury, and heavy physical or repeated lifting (inadequately). The examiner noted that some degree of degenerative disc disease progresses with age and the Veteran had a history of smoking and heavy lifting as a diesel mechanic and was placed on state disability from an injury sustained on the job after the military. The examiner noted that he was unable to confirm if the Veteran sustained and was treated for low back pain while in the service based on review of the claims folder. The examiner observed that to adequately provide a cause and effect relationship with degenerative disc disease caused by the military would require an X-ray before having back pain and present day imaging, and that no X-ray of the low back during military service had been located. The Veteran denied any back condition on his separation physical and signed a statement of medical condition dated in February 1971 indicating that there was no change in his medical condition since his separation medical examination. The examiner found that it was debatable whether the low back pain while in the military was increased during or even after the service and it was at least as likely as not to be caused by the natural progress of age and degenerative disc disease. The examiner stated that the laminectomy surgery was performed 30 years after military service, and as per the Veteran's admission, he had an injury to his low back after his military service. A March 2012 VA medical report noted that the claims file was reviewed. The VA physician reported that he was a Board Certified General Surgeon and the Veteran's case was also reviewed and discussed with two Board Certified Orthopedic Surgeons. The VA physician noted that each physician independently arrived at the same conclusion that "the Veteran's current degenerative spine disability was less likely as not caused by or the result of the Veteran's military service." The physician reasoned that the Veteran's current spine disability was spinal stenosis that required decompression. This condition had multiple etiologies, including osteoarthritis (inflammation of the spinal bones), disc degeneration (which was attributable to age), malignant process that may impinge on the soft tissue surrounding the spinal canal, primary bone disease such as spinal injuries or Paget's disease or secondary bone disease such as metastic cancer of the bone. This Veteran had absence of known malignancy or osteoarthritis (based on x-ray results) and primary bone disease such as spinal injuries or Paget's disease which were also excluded from X-rays. The examiner noted that the question of obesity was warranted as it would add to the load bearing weight of the spinal cord; however, the Veteran did not qualify as obese. This narrowed the etiology down to degenerative disc disease. The examiner found that this was a common malady of middle age rather than a result of the Veteran's military service. The VA examiner also noted the relevant in-service and post-service medical evidence. The examiner acknowledged that a back condition was confirmed as being present while the Veteran was on active duty, although he was unable to confirm the Veteran's statement in regards to his involvement in a motor vehicle accident while in service. Evidence in support of the Veteran's claim, includes correspondence from Dr. H.H. received in April 2007, in which Dr. H.H. opined that it was possible that the Veteran's current back condition could be related to the injury sustained during his time in the military service. Dr. H.H. reasoned that the Veteran sustained a low back injury during service and that such trauma could be the inciting factor in the developing arthritic disease years later-as well as degenerative disc disease. Dr. H.H. indicated that the December 2006 VA examination report cited factors such as obesity, smoking, lack of exercise as possible non-military causes for his back condition; however, Dr. H.H. reported that he cared for the Veteran prior to his back surgery and at no time prior to the Veteran's back surgery was he obese. He also was not currently obese. In regards to Dr. H.H.'s opinion that it was possible that the Veteran's current back condition could be related to the injury sustained during his time in the military service, a physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Here, both language and context do not reflect an opinion of probability, but only possibility; therefore, the statement is speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). The Board finds that the December 2006 and July 2011 VA examination reports are also of minimal probative value. In regards to the December 2006 VA opinion, in June 2011, the Board previously noted that the examiner listed possible general factors for low back pain without discussing their specific applicability to the Veteran and his degenerative spine disability and therefore remanded the claim to provide the Veteran with a new VA examination. Although a new VA examination was provided in July 2011, in the January 2012 remand, the Board observed that the examiner did not consider the service treatment records that discussed in-service back pain. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board accepts the March 2012 opinion of the VA examiner as being the most probative medical evidence on the subject, as such was based on prior in-person examinations, a review of all historical records, and contained detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). There is no other evidence of a relationship between the Veteran's current back disability and service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology. Thus, the preponderance of the evidence is against a finding that the Veteran's current back disability is related to service, manifested in service, or manifested within a year after his February 1971 separation from service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for a back disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for a lumbosacral spine disability, including arthritis is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs