Citation Nr: 1334428 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 99-08 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from March to September of 1958, from May 1964 to May 1967, and from November 1990 to February 1991. He also served in the Georgia National Guard until April 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision issued by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). That rating decision found that new and material evidence had not been received to reopen a previously denied claim for service connection for a back disorder. In an August 2002 decision, the Board reopened the claim. Additional development of the reopened claim was deemed necessary, and the Board remanded this case in November 2003, June 2006, October 2009, and May 2010. In October 2011, the Veteran and his spouse provided testimony before the undersigned at a hearing in Washington, D.C.; a transcript of that hearing is of record. In a December 2011 decision, the Board denied the claim. The Veteran entered a timely appeal to the U. S. Court of Appeals for Veterans Claims (Court). By Order dated in June 2012, pursuant to a joint motion, the Court remanded the decision to the Board for readjudication. The Board remanded this case for further development in March 2013, and the case has since been returned to the Board. The record also reflects that evidence has recently been submitted, accompanied by a waiver of having this evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. The issues of entitlement to service connection for a kidney disability and a smoking addiction have been raised in the August 2013 Written Brief Presentation submitted by the Veteran's representative. These have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The greater weight of the evidence is against the conclusion that current low back disability is related to service. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)), imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that complete notice was not provided until after the initial unfavorable RO decision in January 1999. Since the VCAA was not enacted until November 2000, furnishing the Veteran with VCAA notice prior to the initial adjudication of the claim in 1999 was clearly an impossibility. Subsequently, VA sent letters to the Veteran dated in April 2004, December 2004, and June 2006, and the claim was readjudicated in an August 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Thus, VA's notice obligations have been satisfied, and the Veteran has not raised any contentions otherwise. As to the duty to assist, this case was previously before the Board in March 2013. In the March 2013 remand, the Board instructed that the Appeals Management Center (AMC) ask the Veteran to assist in obtaining any outstanding records related to the low back disability, and that a VA medical opinion be obtained. The AMC asked the Veteran for such assistance in April 2013, and a VA opinion was obtained in July 2013. The directive of the March 2013 remand has thus been accomplished. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his back claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for service connection, and specifically sought to identify any pertinent evidence not currently associated with the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. VA also has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of his back disability. As the July 2013 VA examination report is based on consideration of the prior medical history and described the disability in sufficient detail so that the Board's review of the claim is a fully informed one, the July 2013 VA medical examination report is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran has provided testimony before the undersigned Veterans Law Judge. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Criteria & Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). There are no service treatment records from the first period of service which note any back complaints. In October 1966, during his second period of service, the Veteran incurred a back injury while lifting a heavy footlocker. At that time, he said he had had intermittent low back pain since about four years prior, which would date the onset of pain around 1962, between the first (1958) and second (1964-67) service periods. The Veteran was evidently hospitalized for treatment of his back pain approximately one month, and was discharged from care in November 1966. The diagnosis was acute lumbosacral strain, although at the time of his service separation examination, it was indicated he had had a herniated nucleus pulposus L-5, which was asymptomatic following conservative therapy. Thereafter, the Veteran served many years with the National Guard. Records from this organization do not show any limitations due to any back disorder, or otherwise indicate any complaints related to such a disorder. Indeed, he denied experiencing any recurrent back pain in a 1976 document. Post service, the Veteran had civilian job injuries in 1986 and in 1993. According to a February 1993 private treatment report, the 1986 accident caused the Veteran to miss work for six months. He reported during a December 1994 VA examination that he had missed work for three months after the 1993 injury (lifting boxes while working for Frito Lay). In 1993, a private physician diagnosed him with L4-5 and L5-S1 degenerative disc disease based on magnetic resonance imaging (MRI) test results. In October 2003, the Veteran reported that he had experienced more severe back pain since picking up and operating a chainsaw five weeks earlier. A VA examination was conducted in February 2003. The examiner reviewed the claims folder in conjunction with the examination. The Veteran reported initially experiencing back pain in 1966 that resolved after physical therapy. He stated that following the period of service that ended in 1967 he had back symptoms intermittently ("approximately every three to five years"). The Veteran reported that his current back pain was first noted in the late 1990s and had become worse over the past few years. The examiner noted that an August 2000 (actually August 2001) X-ray report had shown high grade spondylolisthesis at L5-S1, while current X-rays showed almost no spondylolisthesis. The examiner stated that the Veteran currently had degenerative joint disease of the lower lumbar spine, but no significant spondylolisthesis. The rest of his spine looked quite normal for a person of the Veteran's age. The examiner stated the following: It would seem that the episodes of herniated nucleus pulposus as described in the patient's service record were recurrent episodes of low back pain that resolved fairly promptly. This would be no different from what one would expect relative to an active working person would have. The diagnosis of 'herniated nucleus pulposus' that was described in his service career is hard to confirm because no magnetic resonance imaging was done (they were not available at that time), and no special tests were done. Following discharge, the patient developed continued low back pain and now apparently has an element of spinal stenosis. This is a normal process of aging. Based on this information, it would appear to be at least as likely as not that the etiology of any degenerative disc disease at lumbar 5 is not related to the Veteran's service-connected symptoms. In May 2007, an addendum report from the February 2003 VA examiner was obtained in order to clarify the wording of his opinion. After again reviewing the claims folder, the examiner reiterated that the amount of arthritis the Veteran suffered from many years after the inservice back injury was consistent with the normal spinal aging process. "At this time, there is no change in my opinion, namely that it is less likely than not that the current low back condition is related to his service-connected injury that occurred in 1996 (sic)." In a July 2009 statement, J. Rodney Blanton, M.D., noted that he had treated the Veteran for over 20 years for episodes of back pain radiating down his legs. "Historically, his first episode occurred in 1966. At that time he was in the Army. He injured his back lifting and was hospitalized for a total of 33 days. In my opinion his back problem is disabling and first occurred working on an Army assignment." In a March 2010 lay statement, a service friend of the Veteran attested to recalling that the Veteran had a back injury during service; he also described the Veteran as honest and trustworthy. In February 2011 and January 2012 statements, Tina A. Thompson, M.D., reported that the Veteran was her patient and had a history of lumbar region pain. "This pain originally began after a back injury in which he was hospitalized for 33 days in October of 1966. He developed this back injury while in the army due to lifting....(The Veteran)'s past medical history was reviewed. The review confirms that he was injured and has suffered back pain since his time in the military." In the July 2013 VA opinion obtained following the Board's 2013 Remand, the examiner noted that there was evidence that the Veteran sprained his back in 1966 and that he now has degenerative joint disease of the lumbosacral spine. The examiner opined that his current condition is not related to the 1966 episode. The examiner reasoned that, following the 1966 back pain, the Veteran left the service and rejoined the service without indication of any back problems. Thus, the 1966 injury did not affect subsequent military functioning. The examiner also noted that the Veteran worked as a truck driver for a number of years without problem following separation from service, and that the Veteran's current back problem is compatible with age. The examiner stated that there are no localizing problems on X-ray suggestive of a traumatic episode. The examiner also noted that while the Veteran was hospitalized for 32 days following the 1966 episode, ordinary low back pain was treated in that manner in those days. In August 2013, the Veteran's representative submitted several articles related to the etiology of low back disabilities. After carefully reviewing the relevant evidence, the Board concludes that service connection for a back disorder is not warranted. Although the evidence establishes that the Veteran injured his back in service, the greater weight of the evidence shows this resolved and that current disability is unrelated to service. In this regard, the Board acknowledges that the Veteran has reported that his pain began in service and continued intermittently since that time. It is significant, however, that he did not attribute his back pain to an in-service injury until after the initiation of the initial service connection claim. It appears from the claims file that the first time the Veteran claimed to have back pain that had begun in service was on the VA examination in December 1994. When seeking treatment for back pain from a private physician in February 1993, he referred only to work injuries in 1993 and 1986 and not to ongoing back problems since service. This weighs heavily against the finding that there was chronic pain since service, given the incentive to provide an accurate history in the context of treatment to ensure that treatment would yield the most favorable outcome. Also weighing against the contention is the Veteran's lengthy post 1966 affiliation with the National Guard and his denial of any back pain in a 1976 record. Furthermore, it is observed that the Veteran has since attributed his back disability to his experiences as a prisoner of war in Vietnam. He is not shown to have been such a prisoner, which in the Board's view renders any of his reported history of limited probative value. Likewise, any conclusions based on a history he provides would similarly be of limited probative value. There are conflicting medical opinions of record. In its assessment of medical evidence, the Board can favor some medical evidence over other medical evidence so long as the Board adequately explains its reasons for doing so. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds that the medical opinions by Drs. Blanton and Thompson are of limited probative value, because as indicated above, they are based in large measure on the Veteran's self-reported and unsubstantiated account of continued back problems since service, and do not acknowledge the fact of significant postservice back injuries in 1986 and 1993. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion based upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). The Board finds that the July 2013 VA opinion, which concluded that the Veteran's current back disability was not incurred in service, is more probative than the private physicians' opinions. This is because the VA examiner offered a sound rationale in support of the conclusion which was consistent with the evidentiary record as documented in the claims folder and that person is competent to provide an opinion regarding whether the Veteran's current back disability was incurred in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008)(discussing factors for determining probative value of medical opinions). Specifically, the examiner discussed the inservice findings at the time of the 1966 injury; the state of medical treatment for low back pain during the period of the Veteran's service in the 1960s; the Veteran's subsequent military service without problems; and the nature of the current findings in the context of the Veteran's age and work experience. Given the above, the Board gives more evidentiary weight to the medical opinion provided by the July 2013 VA examiner who, after a review of the record on appeal and a discussion of the service treatment records, opined that that the Veteran's current back disability was not incurred in service. Additionally, while the Veteran is competent to describe his symptoms, as a lay person, he has not shown that he has specialized training sufficient to render a diagnosis for or determine the etiology of his low back complaints as such requires medical testing and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, his opinion on this matter is not competent medical evidence. In any event, the Board finds the July 2013 VA examination findings to be of greater probative value in this regard. Regarding the internet articles submitted by the Veteran's representative, the Court has found that treatise materials generally are not specific enough to show a nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Court has noted further that medical opinions directed at specific patients are generally more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). In light of the aforementioned authorities, the Board finds the July 2013 VA examiner's opinion to be more probative than the cited articles as to the etiology of his low back disability. Finally, the Veteran contends that his service connected PTSD has aggravated his low back disorder. He has not provided any medical evidence supporting this contention in his case. Rather he has submitted an internet article addressing the effect of PTSD on physical health generally. Thus, there is no basis to award benefits on this theory of entitlement, or indeed, to investigate further. As the preponderance of the evidence is against the claim for service connection for a back disability, the benefit of the doubt rule is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Service connection for low back disorder, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs