Citation Nr: 1335501 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-25 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: J. William Parker, III, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California that in relevant part denied service connection for lumbar strain/low back pain. In September 2008 the file was transferred from the Oakland RO to the RO in Philadelphia, Pennsylvania at the Veteran's request. The Veteran testified before the undersigned Veterans Law Judge by videoconference from the RO in October 2009. A transcript of the hearing is of record. FINDING OF FACT Competent medical opinion is in equipoise in showing that the Veteran's low back disorder is due to injuries received in service. CONCLUSION OF LAW With resolution of the doubt in favor of the Veteran, the requirements for establishing service connection for a low back disorder are met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In the decision below, the Board grants the Veteran's request service connection. As this represents a complete grant of the benefit claimed, no discussion of VA's duty to notify and assist is necessary. Applicable Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence that (1) the condition existed prior to service, and (2) the condition was not aggravated by service. The claimant is not required to show that the condition increased in severity in service before VA's duty under the second prong of the rebuttal standard attaches. VAOPGCPREC 003-03 (July 16, 2003) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show the Veteran had a pre-induction physical examination in October 1969. In the self-reported Report of Medical History the Veteran endorsed a history of recurrent low back pain, and the examiner endorsed "non-neurogenic low back pain" that was mild and not considered disabling (NCD). The corresponding Report of Medical Examination in October 1969 showed clinical evaluation of the spine to be "normal." In January 1971 the Veteran complained of back pain, stating he had fallen from a ladder about three years before (i.e., prior to service) but the pain had now returned. In April 1971 he complained of back pain that he stated had been present throughout his tour of service. He complained of continued back pain in September 1971, and he was referred for orthopedic evaluation with provisional diagnosis of thoracic scoliosis. The orthopedic evaluation in September 1971 noted history of a fall from a ladder at age 17 (prior to service) with consequent back pain that had resolved after 1-2 weeks but returned in December 1970. Current X-ray showed minimal thoracic scoliosis, which was probably positional since it was not seen clinically. As diagnosis, the orthopedist stated there was no orthopedic cause for the Veteran's back pain, which did not appear to be related to scoliosis (if present). The current symptoms were not those of spasm and were rather reminiscent of an arthritic process such as Marie-Strumpell disease. A subsequent orthopedic consult in October 1971 stated the Veteran had been totally unresponsive to conservative treatment. An orthopedic consult in October 1971 states the Veteran presented complaining of lumbar spine pain since an accident several months previously while he was serving as a mess cook. Clinical examination and X-ray was within normal limits; the diagnosis was probable chronic sprain. The Veteran had a replacement physical examination in June 1972 in which he specifically denied current or previous recurrent back pain. The corresponding Report of Medical Examination does not show any current abnormality of the spine. In September 1972 the Veteran presented to the emergency room complaining of back problem, which appeared to be doing better with treatment. In June 1973 he complained of persistent back trouble radiating down the right arm; the clinical impression was a "definite abnormality" of the cervical spine, although subsequent cervical spine films in August 1973 showed no abnormality. In August 1974 the Veteran presented requesting a "light duty" profile due to recurrent back pain while running, but the physician stated the Veteran was fit for duty. The Veteran had a separation physical examination in September 1974 that noted no abnormalities of the spine. He was subsequently discharged from service in September 1974. Private treatment records from Dr. Mark DeBenadetto show that in August 2003 the Veteran reported a history of intermittent low back pain since 1970. The Veteran cited a history of accidents including a motor vehicle accident in the 1970s during service, a slip-and-fall accident in service in 1973, another slip-and-fall accident in 1974, a head-on motor vehicle accident in 2002 and a slip-and-fall accident also in 2002. Also documented in Dr. DeBenadetto's treatment records was a workplace fall in April 2004 in which the Veteran thought he had cracked a rib, although X-ray of the rib did not show an actual fracture. No diagnosed low back disorder is shown in Dr. DeBenadetto's treatment records. The Veteran received physical therapy at HealthSouth of Nittany Valley during the period April-May 2004 for low back pain; the admission notes indicate that this was a worker compensation issue. Contemporaneous treatment records from Geisinger Family Practice confirm that in April 2004 the Veteran had a workplace fall in which he fell onto his back and subsequently complained of residual pain in the thoracic spine and left ribs. No diagnosis is shown in the rehabilitation records. In his claim for service connection, received in November 2005, the Veteran asserted his claimed low back injury occurred in February 1971 when he tried to pick up a heavy garbage can ("GI can") in the mess hall. The Veteran had a VA examination of the spine in June 2006, performed by an examiner who reviewed the claims file. The Veteran reported having been a mechanic most of his life; he also worked in construction paving roads and worked as a truck driver. The Veteran also worked for the Department of the Navy in a job that entailed cataloguing parts, which did not entail heavy lifting. The Veteran asserted his back pain was consequent to the incident in service in which he had picked up a heavy can in the mess hall. The examiner noted the Veteran's subjective history and objective medical history in detail. Based on clinical examination the examiner diagnosed lumbar strain with unusually mild degenerative changes seen on X-ray. The examiner stated an opinion that the Veteran's back condition was not likely to have been aggravated beyond its normal progression by military service. The July 2006 rating decision on appeal denied service connection for lumbar strain/low back pain based on a determination that the condition preexisted service and was not aggravated by service. In his Notice of Disagreement (NOD), received in December 2006, the Veteran asserted that his claimed low back pain began with the mess hall incident he had previously reported; the Veteran stated that after the incident he repeatedly sought medical treatment but was ridiculed. After reassignment to Okinawa the Veteran was advised by a physician to have back surgery but he refused. During service on Okinawa the Veteran had an accident in the motor pool that broke, fractured or dislocated nearly all his ribs. Both these accidents in service contributed to his current back problems. In his Substantive Appeal, received in August 2008, the Veteran reiterated that his back problems were due to the two accidents in service cited above. He also asserted that he was inducted into service despite having a curved spine; on Okinawa he was advised to have surgery to remove that portion of the spine and replace it with a steel rod, but the Veteran did not submit to such surgery because of the potential side effects. Treatment records from Mifflintown Family Chiropractor show the Veteran presented in August 2003 complaining of backache; he cited no auto accidents in the past, but reported a history of broken ribs in 1976 and a left leg injury in July 2002. The Veteran stated his current back pain had been present since childhood. The Veteran had several chiropractic adjustments. In September 2007 the Veteran had a severe motorcycle accident that resulted in renewed complaint of back pain, and the Veteran continued to have chiropractic adjustments until August 2008. Chiropractic records do not show a diagnosed low back disorder other than pain. Treatment records from Geisinger Family Practice dating from the period September 2001 to September 2008 show no complaint of back pain until the above-cited workplace injury in April 2004; the thoracic spine pain residual to that injury apparently resolved by May 2004. The Veteran also had a motorcycle accident in September 2007, resulting in back pain that was being treated by a chiropractor. The Veteran had several annual physical examinations at Geisinger that are silent in regard to any observed or diagnosed abnormality of the lower back. The active problems list at Geisinger as of September 2008 included "gouty arthropathy" but there is no indication as to the specific joint(s) affected by such disorder. The treatment records from Geisinger are silent in regard to any specific diagnosis of a low back disorder. The Veteran testified before the Board in October 2009 that he should not have been allowed to enlist because he had a scoliosis of the spine of which he was not aware. During service he was constantly being told to stand up straight. At Camp Lejeune he had an accident in the mess hall that resulted in a back injury for which he was simply given pain medication. Later, while assigned to duty in Okinawa, he had another injury in which he fell from a grease rack in the motor pool. As a result of this second injury he was finally seen by a physician, who identified the scoliosis and recommended the Veteran have surgery. Since 2004 the Veteran had been treated by a chiropractor, which resulted in considerable relief of back pain. The Veteran complained that the military had been negligent in allowing him to enlist in the first place, and then in giving him pain medication to mask the ongoing aggravation of his injuries through daily wear-and-tear. The Veteran submitted a Statement in Support of Claim in November 2009 in which he essentially reiterated the assertions he had made in his oral testimony before the Board. The Veteran had a VA examination of the spine in July 2010, performed by a physician who reviewed the claims file. The Veteran initially had no memory of having had a back injury prior to service; after reviewing the record he recalled having fallen off a ladder onto his feet prior to service but he denied any resultant back injury. The Veteran also admitted to having had two motor vehicle accidents in 1969 prior to service but denied resultant back injury. The Veteran reported having been born with scoliosis and narrated the two accidents in service cited during his testimony before the Board as noted above. After service he sought chiropractic treatment, which helped to ease his pain, but he had a motorcycle accident in 2007 that made the situation worse. The examiner performed a clinical examination of the spine and noted observations in detail. The examiner diagnosed lumbar strain with mild degenerative changes, multilevel thoracic degenerative disc disease (DDD) and degenerative joint disease (DJD) at the atlantoaxial junction. The examiner stated an opinion that the Veteran's condition was at least as likely as not permanently aggravated by service. As rationale, the examiner stated the Veteran reported scoliosis from childhood, which accordingly pre-dated service, and which was not symptomatic prior to service. The Veteran was treated for back complaints during service, although he did not seek treatment after service until 2001. Accordingly, the examiner believed the Veteran to have had aggravation during service, although the degree of such aggravation could not be quantified due to his incongruent histories. The Board reviewed the file in June 2011 and observed that the medical opinion expressed by the most recent VA examiner was incomplete. The Board remanded the file in order to obtain an addendum opinion by the examiner in regard to the following questions: (1) whether the Veteran clearly had congenital scoliosis prior to service; (2) whether the evidence clearly establishes that the Veteran had a chronic back disability other than scoliosis prior to service; (3) if preexisting scoliosis or other low back disability was shown, whether such disability was permanently aggravated during service beyond the normal progression of the underlying disorder; (4) if so, is the Veteran's current low back disorder related to such in-service worsening? In rendering an opinion, the examiner was asked to discuss the significance, if any, of the post-service accidents (i.e., is the current disorder more likely related to the post-service accidents or more likely related to the in-service complaints). The examiner provided the requested addendum opinion in August 2011. The examiner again reviewed the medical record, including extensive review of the claims file. The examiner expressed the following opinions. (1) The Veteran did not clearly have scoliosis prior to service, as there is no indication such condition was observed by the Veteran's family physician or by the examiner at induction. (2) The Veteran clearly had a back disorder prior to service, as shown by the Veteran's report of recurrent back in the pre-induction examination and by the orthopedic evaluation in September 1971. (3) The Veteran's preexisting low back disorder was likely to have been permanently aggravated during service beyond the normal progression of the disorder, because the Veteran reported having been asymptomatic prior to service having continual problems since discharge from service. (4) The Veteran's post-service accidents had no permanent effect on his current diagnosis because his current disorder is unrelated to such injuries. The examiner stated that all these opinions were based on the Veteran's history. The Board reviewed the file in June 2012 and determined the medical opinion of record remained incomplete as to whether the Veteran had a preexisting disorder that was aggravated by service; the Board noted that the August 2011 addendum opinion appeared to be based on the Veteran's subjective history, which was inconsistent in some respects with the objective medical records incorporated into the STRs. The Board referred the file to an expert from the Veterans Health Administration (VHA) to resolve the same four questions that had been posed to the VA examiner. The requested VHA opinion was provided by a neurosurgeon, who opined as follows. (1) The Veteran is not shown to have had congenital scoliosis prior to service. There is no definitive evidence of preexisting scoliosis, and the only subjective evidence is the Veteran's own report. Also, X-ray in service showed an impression or minimal thoracic scoliosis that was probably positional, since it was not seen clinically. (2) In October 1969 the Veteran reported a history of (pre-service) recurrent back pain, although physical examination was normal. STRs also mention that the Veteran had chronic back pain after falling from a ladder at age 17. (3) There is no clear evidence that the Veteran had scoliosis or other preexisting low back disorder that was worsened during service. At several times during service the Veteran was treated for complaints of pain that may have been transient exacerbations of his baseline intermittent pain. Despite these instances, his recurrent low back pain may represent natural progression of his low back symptoms prior to service. (4) It is certainly possible that the post-service accidents (car accidents in 1984 and 2002, fall in 2004 and motorcycle accident in 2007) could have exacerbated or more permanently worsened the baseline low back pain. There were two accidents in service, but these four post-service accidents could just as well have contributed to the current lumbosacral strain with mild degenerative changes. It is difficult to say which group of accidents or incidents (pre- or post-service) were more contributory to the Veteran's current condition. In summary, the VHA expert stated there is simply not enough objective data to properly distinguish whether the Veteran's post-service accidents versus his in-service time contributed more - or the most - to his current disorder. Thus, the previous examiner's opinion was based mostly on the Veteran's statements, and the lack of objective date makes it harder to discount the Veteran's subjective comments. Pain is a subjective complaint, and the Veteran noted in at least some of his statements that his back pain had worsened as a result of his time in service. It is as likely as not that this is the case, as much as it is the case that is current condition could also be related to his post-service accidents. Review of the evidence above shows the Veteran is competently diagnosed with a thoracolumbar spine disorder (lumbar strain with mild degenerative changes, multilevel thoracic DDD and DJD at the atlantoaxial junction). Accordingly, the first element of service connection - medical evidence of a disability - is met. A great deal of time has been spent to determine whether the Veteran is shown to have a low back disorder that clearly and unmistakably existed prior to service, per 38 U.S.C.A. § 1111. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). The Board cannot find the Veteran had scoliosis prior to service or during service. STRs show evaluation of the spine to have been "normal" at induction and at separation, and the only specific reference to scoliosis in STRs is that the Veteran did not appear to actually have it. Further, the VHA expert stated an opinion that scoliosis was not shown prior to service; the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board similarly cannot find a disorder other than scoliosis that existed prior to service. The pre-induction Report of Medical History endorses a history of recurrent back pain, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). During service the Veteran alluded to pre-service back problems, but only such conditions as are recorded in physical examination reports are to be considered as "noted" on entry into service; the veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed service. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In this case, the Veteran's report of back pain prior to service does not clearly and unmistakably demonstrate a preexisting low back disorder, and the presumption of soundness applies. Turning to the question of direct causation, the Veteran is shown to have been treated during service for low back complaints, although no diagnosis was made during service and examination at the time of discharge was "normal." The medical opinion of record is conflicting as to whether the Veteran's current low back disability is caused or aggravated by service, with the VA examiner in June 2006 having opined that the Veteran's back condition was not likely to have been aggravated beyond its normal progression by military service, whereas the VA examiner in July 2010/August 2011 and the VHA expert both essentially opined that the Veteran's current low back disability as likely as not is due to or aggravated by injuries during service. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds that in this case the most probative medical opinion is that provided by the VHA expert. The VA examiner in June 2006 did not provide a clinical rationale for his opinion, and was also acting under the faulty premise that the Veteran had a low back disorder that preexisted service. In contrast, the VHA expert demonstrated that the Veteran did not have a preexisting back disorder and that the current claimed back disability is at least as likely due to the documented in-service injury as to the documented post-service injuries; this opinion is supported by a clinical rationale. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds the medical evidence of record is at least in equipoise. Accordingly, with resolution of the doubt in favor of the Veteran, the criteria for service connection are met and the appeal is granted. ORDER Service connection for a low back disorder is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs