Citation Nr: 1334657 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 99-20 106A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected venous insufficiency with lymphangitis of the left leg. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from November 1955 to October 1957 and December 1961 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which declined to reopen the Veteran's previously denied claim of entitlement to service connection for a low back disorder. In April 2007, the Board reopened and remanded the Veteran's claim for service connection for a low back disability to the RO. The Board again remanded the Veteran's reopened claim in September 2010 and July 2012. In May 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2013). The requested opinion was obtained in July 2013 and associated with the Veteran's VA claims folder. The VHA opinion has also been provided to the Veteran, and he was afforded 60 days to provide additional argument or evidence. A response was received from his representative in September 2013. FINDING OF FACT A chronic low back disorder was not shown in service or within a year of service discharge; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative joint disease, spondylosis, chronic lumbar strain, and lumbar myositis is related to his active service or a service-connected disability. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in March 2003 of the criteria for establishing service connection on a direct and secondary basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. A March 2006 letter notified him of how VA determines disability ratings and effective dates. These letters accordingly addressed all notice elements. Although the letters were not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him. Following the additional notice, he was provided a minimum of 30 days to respond and the claim was readjudicated in July 2006, August 2009, March 2011, April 2011, and January 2013 supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, VA examination reports, and Independent Medical Expert (IME) and Veterans Health Administration (VHA) opinions are in the file. Private treatment records have been obtained to the extent possible. No outstanding evidence has been identified that has not otherwise been obtained. The Veteran underwent VA examinations to evaluate his low back disability in December 2004, January 2006, and November 2010. Additionally, opinions were solicited from an outside medical expert in November 2011, which included a March 2012 addendum opinion, and a VHA opinion in July 2013. The reports from those examination and copies of the opinions have been included in the claims file for review. The examinations and opinions involved a review of the claims file, a thorough examination of the Veteran (examinations only), consideration of the Veteran's lay statements/history, and conclusions that were supported by sufficient rationale. The examinations and opinions, taken together, are thereby adequate for to decide the low back claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As noted above, the Board remanded the Veteran's claim in April 2007, September 2010, and July 2012 to the RO/Appeals Management Center (AMC) for further evidentiary development, including obtaining SSA, post-service personnel, and VA and private treatment records and obtaining a VA examination and opinion. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the RO/AMC obtained the requested records. The Veteran was provided a VA examination in response to the Board's remands in November 2010. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). Essentially, in order to establish service connection for a disability, 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis and/or degenerative disc disease is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). Alternatively, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. A review of the medical evidence reflects that the Veteran has been diagnosed with various low back disorders, including degenerative joint disease, spondylosis, chronic lumbar strain, and lumbar myositis. The first element of Hickson and Wallin are met. A review of the service treatment records shows that the Veteran was treated in September 1956 for pain the small of the back and diagnosed with muscle strain. This is the only finding related to complaints, treatment, or diagnosis of a low back disorder. His spine was assessed as being normal when he was examined in October 1957, September and November 1961, and October 1963. In any event, the Board acknowledges that the Veteran was seen for complaints of low back pain in service. There is also service-connected for venous insufficiency with lymphangitis of the left leg. The second elements of Hickson and Wallin have likewise been met. Although an in-service injury/service-connected disability and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service low back complaints or service-connected left leg disability and his current low back disability. See Hickson, supra; Wallin, supra. A September 1998 opinion from T. Hernandez, M.D., who is a neurologist, states that the Veteran's problems with back and hip pain are due to his service connected left leg disability. He explained that the left leg disability had created "changes in the mechanics of his ambulation", which had resulted in his current low back pain. A similar statement was presented by Dr. Hernandez in November 2003 wherein he opined that he was "convinced" that the Veteran developed low back problems as a "direct complication" of his left leg venous insufficiency with lymphangitis. He explained that the Veteran started complaining of left hip pain as early as 1961, which limited his ambulation and created a gait disturbance. He indicated that diminished shock absorption, limited motion, and other compensatory mechanisms eventually caused the current low back dysfunction. Reference was made to supporting medical treatise. The Veteran first underwent a VA examination to evaluate his low back complaints in December 2004. At that time, he complained of daily low back pain that radiated to both lower extremities and began approximately 15 years prior, which would have been 1988. The examiner observed that the Veteran had normal gait. He diagnosed the Veteran with chronic active lumbosacral strain-myositis and lumbosacral radiculopathy at L4-L5, but did not provide an opinion on the etiology of his low back disability. The Veteran was next examined in January 2006. At that time, he complained of low back pain that began more than 15 years earlier (1991) without any history of trauma or injury. The examiner observed an antalgic gait with poor propulsion. He diagnosed the Veteran with chronic active lumbosacral strain with myositis, lumbosacral radiculopathy at L4-L5 and L3-L4, and L5-S1 discogenic disease. He concluded that the Veteran's low back disability was not related to his service-connected left leg disability because the Veteran's low back disability and left leg disabilities were two difference disease entities with different pathophysiological processes unrelated to each other. The Veteran was most recently examined in November 2010. At that time, he complained of chronic low back since the 1960s. The examiner observed normal gait and diagnosed the Veteran with chronic lumbosacral strain, lumbosacral myositis, lumbosacral discogenic disease at L3-L4, L4-L5, and L5-S1, herniated nucleus pulposus at L4-L5, and lumbosacral radiculopathy. He concluded that the Veteran's low back diagnoses were less likely than not related to his service-connected left leg disability because he observed normal gait and no biomechanical deficits with no need for assistive devices. He further concluded that the Veteran's low back complaints were not documented until many years after separation and were most likely secondary to his post-service occupational activities. An opinion was subsequently solicited from a private orthopedic surgeon to address the conflicting opinions from Dr. Hernandez and the VA examiners. In November 2011 opinion with a March 2012 addendum, the orthopedic surgeon indicated that he agreed with the VA examiners. He stated that the Veteran's low back disability was not related to his service-connected left leg disability because both a 1998 private treatment record and the 2010 VA examination report documented no objective biomechanical abnormalities to suggest a relationship between the Veteran's left leg and low back disorders. He further noted that the Veteran's first complaints of post-service low back symptoms did not come until a number of years after separation in concluding that the Veteran's low back disability was also not directly related to service. An opinion from a VA neurosurgeon was subsequently obtained in July 2013. While the November 2010, November 2011, and March 2012 opinion were sufficient to address the secondary service connection questions, the Board observed that none of the physicians had considered the Veteran's in-service complaints of low back pain when addressing direct service connection. The VA neurosurgeon noted in this regard the Veteran's in-service complaint of back pain and diagnosis of muscle strain, as well as his complaints of intermittent back pain beginning in 1968, 5 years after separation. She agreed with the previous examiners' conclusion that the Veteran's low back disability was not related to his service-connected left leg disability because a review of the recent medical literature failed to reveal any reports associating chronic leg lymphedema and the development of degenerative disc disease. She added that "one might try to theorize that chronic limping on one leg from pain from his lymphedema could cause back problems." However, stated that such a relationship was mechanically "not really probable" because chronic limping generally resulted in degenerative disc disease in the presence of leg length discrepancy and scoliosis. As the Veteran's 2001 MRI did not show scoliosis and there was no evidence of leg length discrepancy, she was unable to link the Veteran's low back disability to his service-connected left leg disability. More importantly, the VHA expert concluded that the Veteran's low back disability was not directly related to his active service, including the service treatment records showing a single complaint of low back pain and diagnosis of muscle strain and an abrasion to the scapula. She concluded that the single diagnosis of muscle strain in service did not constitute a major injury that would have caused long-term injury to the lumbar spine. She further opined that the scapula abrasion would not have affected the lumbar spine given the distance between the scapula and lumbar spine. In light of her medical expertise and thorough review of the claims file, she was unable to link the Veteran's current low back disability to either his military service or his service-connected left leg disability. The Board is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In view of the foregoing, the VA, IME, and VHA examiners' opinions are found to be more probative than the opinions provided by Dr. Hernandez in September 1998 and November 2003. Neither statement addresses the Veteran's actual low back diagnoses, only his complaints of pain. Pain in and of itself is not a disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Further, contrary to what was stated by Dr. Hernandez, there is no record of the Veteran receiving treatment for back pain since the 1960s. Dr. Hernandez reports that he did not start treating the Veteran until 1998. Moreover, as will be discussed below, the Veteran's assertion that he has been experiencing left hip and/or low back pain since the early 1960s is not deemed credible. Thus, to the extent that Dr. Hernandez' favorable opinion is based on the Veteran experiencing pain since the early 1960s, the opinion would be predicated on an incredible history and assigned limited probative value. Coburn v. Nicholson, 19 Vet. App. 427 (2006) (held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran). The Board also provides weight to the fact that three individual physicians have either examined the Veteran and/or reviewed the record and determined that there is no correlation between the Veteran's current low back disability and his active service or service connected low back disability. Each physician provided rationale for his/her negative opinion. The opinion from Dr. Hernandez included rationale as well. However, notwithstanding its reliance on the Veteran's faulty history, the opinion is not supported by the same physical evidence described in the negative opinions. Specifically, contrary to what was stated by Dr. Hernandez, there has been no evidence of a scoliosis or leg length discrepancy, which would be factors in determining that a chronic limp had caused degenerative disc disease. There isn't even any evidence that the Veteran has a disturbed gait or any other biomechanical deficits that require assistive devices. In light of these deficiencies, the Board finds the opinions from Dr. Hernandez to be less probative as to the etiology of the Veteran's low back disability than the VA, IME, and VHA opinions and insufficient to grant service connection on a direct or secondary basis. The only other evidence which purports to link the Veteran's current low back disability to his military service and/or service-connected left leg disability consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe what he experiences (in this case, low back pain), he is not able to provide competent evidence as to the etiology of his low back diagnoses. Providing such an opinion requires medical expertise in the cause and symptoms of arthritis and other spinal disorders. The Veteran and his representative have no such expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also 38 C.F.R. § 3.159 (a)(1) (2013). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran has, at times, complained of low back pain since service. The VA, IME, and VHA examiners considered these complaints in forming their opinions. However, while they acknowledged his complaints, they still found that his current diagnoses were not related to his active service. Further, he has inconsistently reported the onset of his low back throughout the medical and lay evidence. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. The Veteran's assertions of experiencing low back pain since service are also found to lack credibility. Reference is made to the Veteran's initial claim for service connection for his left leg disability in 1969. He also filed a claim for a respiratory disorder at that time. Had he been experiencing low back pain at that time, and as he clearly was aware of VA benefits, he has provided no explanation as to why he did not file a claim for service connection for low back disability at that time. Such weighs against the Veteran's claimed history. See AZ v. Shinseki, No.2012-7046, 2013 WL XXXXXXX, at *Y (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Indeed, the Board's attention is drawn to the findings of the Veteran's 1963 service discharge examination and March 1969 VA examination, which were both negative for any low back symptomatology. Based upon the language and context of the earlier claims and the 1969 VA examination, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of low back pain at that time, is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service or service-connected left leg disability and his current low back disability. Although the Board notes the Veteran's current disability and in-service complaints/service-connected disability, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Consideration has been given to the argument presented by the Veteran's representative with respect to the 2013 VHA opinion. He contends that the opinion is deficient because it did not clearly address the issue of service connection based on aggravation. The Board does not agree. The examiner provided a detailed explanation as why there was no correlation between the Veteran's back disability and his service connected left leg disability. Notably, he indicated that the Veteran was not shown to have any of physical characteristics/symptoms of leg dysfunction that would result in a back disorder such as degenerative disc disease. The lack of express use of "aggravation" does not diminish the value of the opinion. Moreover, as discussed, the earlier 2010 VA opinion and 2012 private opinion sufficiently addressed the aggravation question. Accordingly, the Board finds that the claim of entitlement to service connection for a low back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs