Citation Nr: 1336145 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-17 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a lumbosacral spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1988. This matter came to the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in Jackson, Mississippi, which, in pertinent part, denied entitlement to service connection for traumatic arthritis of the lumbar spine. A hearing on these matters was held before the undersigned Veterans Law Judge on October 23, 2007. The hearing transcript has been associated with the file. This matter was remanded in December 2007, August 2009, July 2011 and November 2012. FINDING OF FACT A chronic low back disability did not have its clinical onset in service and is not otherwise related to active duty or due to a service-connected disability. CONCLUSION OF LAW A low back disability was not incurred or aggravated in service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a) , must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Prior to the June 2006 rating decision, a VCAA letter was issued to the Veteran with regard to his claim of service connection for a low back disability. Thereafter, in January 2008 another VCAA notice was issued to the Veteran. The letters notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the Board Remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains service treatment records and post-service private and VA treatment records. A review of the paper claims file as well as Virtual VA does not reveal any additional documents pertinent to the present appeal. No additional outstanding evidence has been identified. In January 2009 and November 2011 the Veteran underwent VA examinations pertaining to his low back claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The February 2013 VA opinion reflects substantial compliance with the November 2012 remand directives and is fully adequate for the purposes of adjudication as is was based upon review of the claims file, prior examination reports, clinical findings, and reported history. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also D'Aries, supra. During the October 2007 hearing, the Veterans Law Judge explained the issue on appeal and asked questions designed to indicate evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the back issue in appellate status. II. Legal Criteria & Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. §3.309(a), such as arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, medical records reveal that the Veteran has been diagnosed as having various back disabilities. For example, an August 2005 private magnetic resonance imaging (MRI) scan of the lumbar spine revealed a small central disk protrusion at L4-L5. Also, a September 2012 Disability Benefits Questionnaire completed by Dr. J.R.D., a private physician as well as the February 2013 VA examination report included the diagnosis of degenerative disc disease. Thus, a current back disability has been demonstrated. The Veteran claims that he injured his back during basic training in July 1984 while lifting boxes and continued to have problems, including muscle spasms. He reported that he sought treatment and was diagnosed with a low back sprain. See October 2007 hearing transcript. He is competent to report symptoms of a back disability, such as muscle spasms, as well as a continuity of symptomatology. However, his reports must be weighed against the objective evidence and their credibility must be assessed. See Jandreau, 492 F.3d at 137; Buchanan, 451 F.3d at 1337. Service treatment records reflect that in July 1984 the Veteran was seen for complaints of back pain of one day duration. He was diagnosed with a muscle strain. November 1984 the Veteran was involved in a go-cart accident and sustained a fracture of the right tarsal navicular without displacement. A cast was applied. He sought private and service treatment following the accident, but there were no findings or complaints related to the low back. On April 1988 separation Report of Medical Examination, his 'spine, other musculoskeletal' was clinically evaluated as normal. The first post-service clinical evidence of back problems is a January 1992 private treatment record from Laurel Bone and Joint Clinic that reported back pain. There is no clinical evidence of any earlier back symptoms following service. The Veteran is competent to report that he has had back symptomatology since active service. However, the Veteran has provided varying statements as to the history of his back problems. For example, he has contended on several occasions that back symptoms (including muscle spasms) have persisted ever since he strained his back muscle in 1984. However, on an April 1998 separation Report of Medical History, the Veteran denied having or having had 'Recurrent back pain'; 'Arthritis, Rheumatism, or Bursitis; and 'Bone, joint, or other deformity'. The January 1992 treatment record from Laurel Bone and Joint Clinic revealed that the Veteran had back pain since a motor vehicle accident 5 days ago. X-rays were negative and he was diagnosed with lumbosacral strain. It would seem logical if low back pain persisted since service the Veteran would have claimed recurrent back pain on his Report of Medical History; he did mention other musculoskeletal problems. Also, his statement for treatment purposes in 1992 that low back pain was of recent onset is highly probative as it was made prior to any claim for compensation, was made during an attempt to seek treatment and relief, and appeared to be a frank description of when the back pain started. Also September 1997 treatment records from Laurel Bone and Joint Clinic noted complaints of low back, right hip and knee, and neck pain since being involved in a motor vehicle accident in July 1997. The record noted a history of a prior motor vehicle accident in 1992 with back pain that lasted a few months. X-rays of the lumbosacral spine were within normal limits and he was diagnosed with lumbosacral strain. There is no record of a recurrence of back problems following the July 1984 muscle strain, and the April 1988 separation examination did not reflect any back abnormalities. The inconsistent and contradictory statements concerning the history of his back symptoms undermine establishing a basis for a finding of continuity of symptoms since service. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis. In a December 2010 submission, the Veteran asserted that his the lumbar spine disability is due to his right ankle disability. He stated that he has always limped and absorbed most of the weight on his left leg which has caused arthritis in his back. Service connection is in effect for status post right tarsal navicular fracture, rated noncompensably disabling, effective July 16, 2001, and 10 percent disabling, effective December 5, 2002, and service connection is in effect for chronic right ankle sprain with lateral instability, rated 10 percent disabling, effective March 29, 2006. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Evidence in support of the Veteran's claim, includes correspondence received in October 2007, in which Dr. G.G. noted that the Veteran reported that he hurt his knees and ankle during his time in the military. Dr. G.G. found that there was no doubt that if the chronic injury to the ankle or knee caused changes in the Veteran's gait, that these injuries could be the cause of the Veteran's spinal difficulties. Dr. G.G. indicated that there were other factors to consider including the Veteran's job and weight. In May 2009 correspondence, Dr. G.G. acknowledged that the Veteran did not have a history of a spinal injury in service, although he was seen for back pain in 1984. Dr.G.G. opined that the right foot and knee injuries sustained while in service caused the Veteran's gait and spine stability to be altered enough to cause a lot of his problems. In October 2010 correspondence, Dr. J.R.D. noted the Veteran's reported history of a motor vehicle accident in 1984 as well as experiencing low back pain due to lifting and pulling. The Veteran reported that the pain only required conservative treatment and resolved. However, the Veteran reported intermittent problems in his back in a similar location to the present day. Dr. J.R.D. opined that the injuries that the Veteran sustained while in the military, i.e., his contusion involving his left knee, as well as the fracture and sprain of the right ankle, and the lifting may have contributed to his current situation. Dr. J.R.D. added that the Veteran's obesity and activities that he performed since his military career had some impact. Dr. J.R.D. indicated that his opinion was based upon the Veteran's reported history, including persistent problems and visits to medical professionals dating back to his military service. Evidence against the Veteran's claim includes a treatment record from the Internal medicine Clinic of Laurel dated in February 1998 that noted that the Veteran had low back pain since his accident in July 1997. Dr. R.S. documented that the Veteran's problems appeared to be due to chronic neck and sacroiliac strain bilaterally, which caused secondary fibromyalgia. Additionally, there appeared to be meralgia paresthetica in the right thigh due to compression of right lateral femoral cutaneous nerve under the inguinal ligament nearer the anterior superior ileac spine, probably due to him being overweight. Dr. R.S. added that the Veteran's job required bending down and lifting weight, which did not help the condition. On January 2009 VA examination, the examiner found no evidence of traumatic arthritis of the lumbar spine. The examiner summarized the Veteran's pertinent medical history. The examiner stated that the MRI scan reported a small central disc protrusion at L4-5, which was of questionable clinical significance. Otherwise, x-rays were reported as normal and the examiner noted that he could find no documentation to support a contention that the Veteran's present back complaints were the direct and proximate result of any incident or occurrence in the service. On November 2011 VA examination, the same examiner summarized the pertinent medical evidence. He reported that he found no evidence that the Veteran had a lumbar spine disability which had undergone a permanent increase in severity due to his service-connected post right tarsal navicular fracture or service-connected chronic right ankle sprain with lateral instability. The examiner noted that he reviewed the opinions from Dr. G.G. and Dr. J.R.D. The examiner stated, "While I have no doubt that these are both very fine practitioners, there is no indication in the opinion from Dr. [G.G.] that he had access to the service treatment records of the Veteran." The examiner noted that Dr. J.R.D. stated that he had been caring for the patient since 2003; however, it did not appear that he had access to any service medical records or any other records prior to 2003, which would have been 15 years after his discharge from the service On February 2013 VA examination, the same VA examiner opined that it is less likely than not (less than 50% probability) that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was a history of low back pain after a motor vehicle accident in 1997; however, x-rays at the time were negative. The examiner also noted that x-rays in 2005 showed no significant abnormality. Although, an MRI in 2005 reported a small central disc protrusion at L4-5, this finding was of questionable clinical significance. Records from examination in January 2009 noted that the Veteran moved slowly with a slight limp on the right. Additionally, the Veteran was 6 ft. tall and weighed 290 pounds. The examiner reported that he could find no evidence of any disability of the lumbar spine that was proximately due to or permanently worsened by service connected right tarsal navicular fracture or service connected chronic right ankle sprain with lateral instability. The examiner reported that the Veteran walked with a "slight" limp; however, the examiner was not aware of any scientific studies that supported a claim that a limp would cause a disc protrusion or permanent worsening of a disc protrusion. The examiner indicated that the disc protrusion was likely representative of some degree of degenerative disc disease which was extremely common in the population at large. Therefore, the Veteran's degenerative disc disease was more likely a function of age and body habitus. The VA examiner concluded that the preponderance of evidence did not support a claim that the Veteran's back disability was either directly caused by or permanently worsened by the service connected ankle and foot conditions. There was no evidence of record supportive of a diagnosis of traumatic arthritis of the lumbar spine The October 2007, May 2009, and October 2010 private opinions are minimally probative because they are predominantly based on the Veteran's reports of chronic intermittent back symptomatology in the same location since his in service back injury. However, as explained above, the Board has determined that such reports are not credible in this case. Additionally, the private opinions did not consider the Veteran's complaints of back pain in relation to multiple motor vehicle accidents since his discharge from service. Thus, as the October 2007, May 2009, and October 2010 opinions are based on an inaccurate history they are of little probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 20 -06 (1994) (finding that presumption of credibility of evidence did not arise as to medical opinion that a veteran's disability was incurred in service because it was based on an inaccurate history, one which failed to acknowledge an injury well-documented in the record, and hence holding such evidence not "material"); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value"). Moreover, in regards to the portion of Dr. G.G.'s opinion that if the injury to the ankle or knee caused changes in the Veteran's gait, then these injuries could be the cause of the Veteran's spinal difficulties, the Board finds that this is not an opinion of probative value because both language and context do not reflect an opinion of probability, but only possibility; therefore, the statement is speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In regards to Dr. J.R.D.'s belief that the injuries that the Veteran sustained while in the military, i.e. , his contusion involving his left knee, as well as the fracture and sprain of the right ankle, and the lifting 'may' have contributed to his current situation, a physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). In regards to Dr. G.G.'s belief that the right foot and knee injuries sustained while in service caused the Veteran's gait and spine stability to be altered enough to cause a lot of his problems, is of minimal probative value because it is not accompanied by any relevant explanation or reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The January 2009 and November 2011 VA opinions are also of limited probative value as the examiner did not provide a rationale for his opinions. An opinion that does not contain a rationale, i.e. the examiner merely states his conclusion, but does not say why he reached this conclusion lacks probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In regards to the February 2013 VA opinion, the examiner did not find any evidence of traumatic arthritis. The examiner opined that it is less likely than not (less than 50% probability) that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was a history of low back pain after a motor vehicle accident in 1997; however, x-rays at the time were negative. The examiner also noted that x-rays in 2005 showed no significant abnormality. The examiner opined that the Veteran's degenerative disc disease was likely a function of his age and body habitus (it was noted that the Veteran was 6 ft. tall and weighed 290 pounds). The examiner reasoned that the Veteran's disc protrusion was likely representative of some degree of degenerative disc disease which was extremely common in the population at large. Additionally, the examiner acknowledged the Veteran's slight limp; however, he was not aware of any scientific studies that supported a claim that a limp would cause a disc protrusion or permanent worsening of a disc protrusion. The examiner reported that he could find no evidence of any disability of the lumbar spine that was proximately due to or permanently worsened by service connected right tarsal navicular fracture or service connected chronic right ankle sprain with lateral instability. The discussion by this VA examiner leads to a finding that the Veteran's low back disability was not incurred in service, or otherwise related to service, and was not proximately caused or aggravated by his service-connected right tarsal and right ankle disabilities. The Board accepts the February 2013 opinion of the VA examiner as being the most probative medical evidence on the subject, as such was based on prior in-person examinations, a review of all historical records, and contained detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). There is no other evidence of a relationship between the Veteran's current back disability and service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. To the extent the Veteran is claiming that his current degenerative disc disease of the spine is related to low back strain in service, he is not competent to determine the etiology of disc disease. Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology. Thus, the preponderance of the evidence is against a finding that the Veteran's current back disability is related to service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for a back disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for a lumbosacral spine disability, including arthritis is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs