Citation Nr: 1334861	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  13-05 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for lumbar spine disability with left leg radiculopathy, to include as secondary to service-connected peripheral neuropathy neuropathy of the left foot (hereinafter also referred to simply as a "lumbar spine disability").


REPRESENTATION

Veteran represented by:	Lisa A. Lee, Esq.


ATTORNEY FOR THE BOARD

Joseph Aquilina, Associate Counsel.






INTRODUCTION

The Veteran had active service from June 1973 to June 1977. 

This appeal comes before the Board of Veteran's Appeals (Board) on appeal from a March 2010 rating decision of the Department Veterans Affairs (VA) Regional Office (RO) in St. Petersburg Florida which in pertinent part denied service connection for the Veteran's lumbar spine disability as well as L5 radiculopathy of the left leg.

The Board observes that in March 2011 and in February 2013, the Veteran, through his representative, raised the issues of entitlement to a total disability compensation rating based on individual unemployability due to service-connected disability (TDIU) and an acquired psychiatric disorder, respectively in.  These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  To the extent the Veteran asserts that the TDIU issue was implicitly raised by the increased rating claims for peripheral neuropathy of the feet, such claims were finally denied in a December 2008 rating decision. Therefore, such issues are not pending and the Board does not have jurisdiction over them; such issues are referred to the AOJ for appropriate action.  


FINDING OF FACT

The evidence of record does not show that the current lumbar spine disability is etiologically related to active duty service; or proximately due, the result of, or aggravated by a service-connected disability, including peripheral neuropathy of the lower extremities.





CONCLUSION OF LAW

A lumbar spine disability was not incurred in or caused by active duty service; nor is it proximately due to or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions with regard to the Veteran's appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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.  Prior to the initial adjudication of the Veteran's claim, a letter dated in September 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio at 187.

Additionally, the February 2009 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).


The Board concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA treatment records are in the file.  While the Veteran has stated via a November 2008 statement that he is currently receiving social security for "neuropathy, chronic pain, depression and anxiety" the Veteran did not mention issues related to service connection for a lumbar spine disability, which the issue on appeal. 

With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

In the present case the Veteran was afforded a medical examination in November 2009 of his claimed disabilities.  The record contains medical opinions and addendums giving rationales for opinions rendered by VA examiners.  The Board also notes that the opinion supplied for the VA examination in November 2009 were found to be inconsistent and additional opinions were obtained in January 2010 and in February 2010 to reconcile inconsistencies.  These opinions were premised on a review of the medical history and the Veteran's claim and provide sufficiently detailed analyses. 

The Board also takes note of the Veteran's attorney's statements that VA has not complied with a request for a copy of the Veteran's claims file.  However, in conjunction with a letter dated December 7, 2012, VA completed the request.  

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).

The Veteran has claims he has a lumbar spine disability as a result of his active duty service.  He reports that he had a back strain injury in service and that this is related to his current degenerative changes at L3-S1 and radiculopathy.  The Veteran also asserts that his service-connected neuropathy on both feet has either caused or aggravated the current lumbar spine disability.

Generally, 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 Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2013), (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

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. See 38 U.S.C.A. § 1131 (West 2002).  However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease.  If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity.  See 38 C.F.R. § 3.303(b) (2012).  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. See 38 C.F.R. § 3.303(d) (2013).

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).  However, as the evidence below clearly demonstrates, the Veteran is not shown to have been diagnosed with arthritis of the lumbar spine within one year of service.  Therefore, presumptive service connection may not be awarded in this case.  

However, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Holton 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). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As the Veteran's lumbar spine disability arguably includes arthritis, service connection via the demonstration of continuity of symptomatology may be applicable in the present case.  

Service connection may also be independently established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  See 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).

A review of the record, including the lay and medical evidence, demonstrates that the Veteran has a history of low back problems.  The Veteran contends are caused or aggravated by his service or service-connected disabilities. To this end, the Veteran has identified back injuries in service and his service-connected neuropathy of the feet, which are attributed to cold injuries.  The Veteran has numerous VA treatments for sciatica and low back sprain in addition to low back pain productive of lower extremity pain spanning April 2008 through October 2009.  In particular, the Veteran by virtue of a November 2009 medical examination was diagnosed with lumbar strain and L5 radiculopathy.  Consequently, the first element of Holton, a current diagnosis, is met. 

As to the second Holton element, an incurrence or aggravation in service, the record contains various service treatment records involving the back.  In relevant part these include a muscle strain in 1974; however, X-rays of the lumbar spine were described as negative in July 2004.  There were also low back pain treatment notes in September 1975 and muscle strain related to an auto accident in service in October 1976.  Back pain is mentioned on other occasions throughout service with notes of mild treatment regimens with over the counter anti-inflammatory medications.  The Veteran also checks back pain on his report of medical history for discharge in 1977.  Consequently, the second element of Holton is met. 

Because part of the Veteran's contentions for his lumbar spine disability encompass a contention for secondary service connection due to service-connected peripheral neuropathy of the feet, the Board notes at the outset that the Veteran also satisfies the second element of secondary service connection, i.e., a service-connected disability.  Still, a nexus between the lumbar spine disability and the service-connected disabilities is required.  

Turning to the third element of both the Holton (direct service connection with a nexus to service) and Allen (secondary service-connection with a nexus to the service-connected disability) cases, the record contains evidence of a possible nexus.  These documents include a VA examination from November 2009 and addendums composed by VA physicians in January 2010 and February 2010 to offer clarity and guidance as to the findings of the VA examination.  The examinations and two addendums are thus discussed in turn below.  

The Veteran was afforded a VA examination in November 2009 to evaluate the Veteran's lumbar spine.  As part of this examination, the examiner noted that the objective of the exam was to decipher whether the Veteran's non-service-connected lumbar spine disability is due to his service-connected bilateral neuropathy of the feet.  The examiner noted reviewing the Veteran's service treatment records and medical history.  The examiner recounted the Veteran's complaints of his back "bothering him over the last several years" and that it had "progressively gotten worse over the past eight to ten months."  The Veteran's pain had become increasingly more pronounced with numbness and tingling on the posterior aspects of his thighs.  The physical examination showed a spasm in the paravertebral muscles of the lumbar area.  Range of motion testing was conducted with pain noted in nearly all ranges of motion.  The examiner further noted an MRI (conducted in January 2009) which showed "L5-S1 disk osteophyte with mild to moderate bilateral foraminal narrowing, L4-L5 mild bilateral foraminal narrowing, L3-L4 mild to moderate left foraminal narrowing."  The examiner mentioned a February 2009 treatment record which identified foraminal narrowing.  The examiner provided an opinion that it was "at least as likely as not that the Veteran's current lumbar strain is caused by or a result of his bilateral peripheral neuropathy."  Despite this seemingly positive opinion as to the nexus element, the examiner's attendant rationale seemed contradictory.  The rationale is as follows:

RATIONALE: This is based on the patient's bilateral peripheral [neuropathy] and would not result in degenerative changes of the patient's lumbar spine.  However, I do feel that the veteran's low back pain and L5 radiculopathy could be aggravated by his bilateral peripheral neuropathy. 

The examiner premised this rationale on the Veteran's nerves having already been compromised and that the foraminal narrowing of the lumbar spine "would cause additional insult to the lower extremity nerves." 

Because the examiner conducting the November 2009 examination referenced a possible nexus to service via aggravation and stated a rationale that was not in accord with the opinion, VA obtained an addendum in January 2010.  The January 2010 examiner was instructed to opine as to the "baseline manifestations of the veteran's low back pain...prior to aggravation or at the earliest date ascertainable."  The January 2010 examiner reviewed the previous opinion and issued an updated diagnosis.  Whereas the November 2009 examiner listed lumbar strain as a diagnosis, the January 2010 examiner specified degenerative spine disease at the L3-S1 based on imaging data.  The January 2010 examiner rendered a negative nexus and opined that it was "less likely than not that the Veteran's current lumbar spine condition and left L5 radiculopathy are caused by or a result of his bilateral peripheral neuropathy." The examiner then offered the following rationale: 

The patients' bilateral peripheral neuropathy would not result in degenerative changes of the patient's lumbar spine.  Although the Veteran's neurologic symptoms at the left lower extremity may be caused by peripheral neuropathy and L5 radiculopathy at the left leg it would be resort to mere speculation to opine that the Veteran's left L5 radiculopathy was aggravated above and beyond its natural progression by his peripheral neuropathy.

An additional addendum was composed by a VA examiner in February 2010.  The February 2010 examiner reiterated that it would resort to speculation to opine that the Veteran's current disabilities were the result of low back pain or muscle strain.  The examiner's stated rationale was that the Veteran's service treatment records had mentions of back strains, they were "silent for degenerative changes of the lumbar spine and/or left L5 radiculopathy."  The examiner then rendered an opinion stating that the Veteran's left L5 radiculopathy "was most likely caused by the degenerative changes of the lumbar spine...[t]he veteran's current L5 radiculopathy is not caused or a result of his peripheral neuropathy."  The examiner offered the rationale that while degenerative changes of the patient's lumbar spine could be the cause of radiculopathy; peripheral neuropathy does not cause radiculopathy. 

The Board finds the medical evidence weighs against the Veteran's claim, and consequently the third element of Holton, a nexus of the claimed disability to service, is unsupported.  Additionally, for purposes of secondary service connection, the evidence weighs against the finding of medical nexus evidence establishing a connection between the service-connected peripheral neuropathy and the current lumbar spine disability, to include by way of aggravation, as required by Allen.  While the November 2009 examiner offered a positive opinion as to nexus for the service-connected peripheral neuropathy causing the Veteran's lumbar spine disability, the rationale offered in support that peripheral neuropathy would not cause degenerative changes of the spine was contradictory and inconsistent.  Because of the ambiguity contained in this examination, an additional two addendums were obtained.  The January 2010 examiner offered an opinion that was negative in terms of finding a nexus and set forth that the service connected neuropathy would not result in the Veteran's current lumbar spine disability.  More specifically, as to the L5 radiculopathy, the examiner noted that it would be speculative to state that the radiculopathy was aggravated beyond normal means.  Part of the Board's consideration of how much weight to assign [a medical opinion] is the foundation upon which the medical opinion is based."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion should "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board's duty "to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record); see also 38 U.S.C. § 7104(d) (1).

The Board will accord the most weight to the addendum opinions issued in January and February 2010, which, collectively, weigh heavily against the finding of a nexus between the Veteran's current lumbar spine disability and either the service-connected feet neuropathy; or to any injury to the back sustained in service.  The examiner who authored these opinions was a physician and also the medical director of compensation and pension service for the VA regional health system.  These examinations had the benefit of a review of the Veteran's health records as well as access to the November 2009 examination report and all prior evidence.  The examiners set forth clear grounds for the findings, stating clearly that the degenerative changes apparent in the Veteran's spine were not pathologically linked to the neuropathy.  Further, likely etiology for the radiculopathy was explained to be degenerative disc disease of the lumbar spine.  However, the record demonstrates that the Veteran's degenerative disc disease is not service-connected and thus there can be no nexus.  The examiner effectively ruled out an etiology for showing a link between the service-connected neuropathy and the Veteran's lumbar spine disability and associated radiculopathy, explaining why they are of independent origins.  To the extent the Veteran claims the service-connected neuropathy has  aggravated the non-service-connected radiculopathy, the VA addendum opinion explain that there is no basis for such a conclusion because of the independent pathologies of these separate conditions.  The theories advanced by the examiner in this regard are highly persuasive.  It was also explained that while there was evidence of low back strains during service, there was no evidence of lumbar spine disease at that time.  

Consideration has also been given to the Veteran's lay statements that his service connected peripheral neuropathy caused his current lumbar spine disability.  However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the nature of his lumbar spine disability.  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 cardiac medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  While the Veteran is certainly competent to report that he experiences painful motion for his back and radiating pain and tingling, he is not competent to attribute those complaints of pain to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3  s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1)  (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  His assertions are therefore not competent evidence for purposes of establishing a link of his current lumbar spine disability to service either on a direct basis or as secondary to his service connected peripheral neuropathy.  

To the extent the Veteran asserts the current lumbar spine disability is directly related to service because he had documented low back strain in service, the evidence of record weighs against this aspect of the appeal.  Indeed, the Veteran does not claim that he had low back symptoms since leaving service.  Rather, the November 2009 examination report notes that the Veteran indicated back problems only going back several years prior, and had gotten progressively worse only within the prior eight to ten months.  In point of fact, when the Veteran filed a claim for benefits in December 2005, such claim did not include low back pain.  It was not until September 2009 that the Veteran claimed a low back disability, and at that time the claim was limited to it being secondary to the service-connected bilateral feet disability.  All of this, in conjunction with the competent February 2010 VA addendum opinion, leads the Board to conclude that the low back symptoms are a more recent development, and that the current lumbar spine disability is unrelated to the in-service low back muscle strains.  (While not dispositive, this passage of so many years between the contended date of the injury and the medical documentation of a disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)).  Indeed, the in-service negative X-rays, reported to have been performed in July 1974, are in agreement with the February 2010 addendum opinion citing to no evidence of lumbar spine disease in-service.  As such, the Board finds that direct service connection for a lumbar spine disability, including by way of continuity of symptomatology, is not warranted under the circumstances of this case.

Overall, the Veteran's assertions are also significantly outweighed by the negative opinion from the VA examiners, especially the physician who authored the January and February 2010 addendum; the examiner clearly holds the level of medical expertise to address the nature and etiology of the Veteran's complaints stemming from the lumbar spine disability. Given the competent medical evidence showing a lack of nexus of the current lumbar spine disability, as already discussed above, the Board finds that the preponderance of evidence is against a finding of a nexus of the Veteran's current disability on either a direct or secondary basis.

Accordingly, the Board finds that the claim of entitlement to service connection for a lumbar spine 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).


ORDER

Entitlement to service connection for lumbar spine disability with left leg radiculopathy, to include as secondary to service-connected peripheral neuropathy neuropathy of the left foot, is denied.



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs