Citation Nr: 1336329 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-29 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a back injury including degenerative disc disease at L5-S1. 2. Entitlement to service connection for radiculopathy of the left lower extremity due to a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1991 to April 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2011 the Board remanded the case to the RO for further development. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in March 2013, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA), and in July 2013 received a requested addendum to clarify the March 2013 opinion. In August 2013, the Board provided the Veteran copies of the opinions and afforded the Veteran the opportunity to submit additional evidence and argument. The Veteran did not submit additional evidence or argument, however, his representative acknowledge the opinion in an October 2013 brief in response to the medical expert opinion. FINDINGS OF FACT 1. Residuals of a back injury including degenerative disc disease at L5-S1 were not affirmatively shown to have had onset during service, and degenerative disc disease at L5-S1 is not otherwise related to an injury, disease, or event in service. 2. Radiculopathy of the left lower extremity was not affirmatively shown to have had onset during service, and radiculopathy of the left lower extremity is not otherwise related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a back injury including degenerative disc disease at L5-S1 have not been met. 38 U.S.C.A. §§ 1110, 5107(b) West 2002); 38 C.F.R. §§ 3.303 (2013). 2. The criteria for service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1110, 5107(b) West 2002); 38 C.F.R. § § 3.303, 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letters in July and December 2006. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and for the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. In July 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). As the VHA medical opinion was based on a review of the Veteran's history and described the disabilities in sufficient detail so that the Board's review is a fully informed one, the VHA opinion is adequate to decide the claims. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records show that in October 1993 the Veteran was seen for complaints of pain in the right lower back after he injured his back attempting to lift a ship deck hatch. He stated that at the time of the injury he felt an odd sensation in his lower back and his back felt weak. He stated that his current symptoms were pain, radiating down through the hip and numbness to the lower extremities. The pertinent findings were spasm at L-3 and L-4 and pain with flexion to 70 degrees. The assessment was mild lumbar spasm. On follow-up in November 1993, the Veteran still had throbbing pain, but not radiating pain or numbness or tingling. The assessment was resolving lumbar spasm. In May 1995, the Veteran complained of low back pain for two days after playing golf. He stated that at that time when the pain began, he had bent over to place a ball on the ground and then experienced a sharp pain in his lower back that brought him to his knees. The assessment was lumbosacral strain. On follow-up several days later, the Veteran stated that the pain had decreased, but he still had right-sided pain and left-sided stiffness. The assessment was lumbosacral strain, slowly resolving. When he was seen several days later, the pain was reduced. On separation examination in April 1997, the Veteran gave a history of back spasms, but not recurrent back pain. Evaluation of the spine and the lower extremities was normal. After service private medical records in August 2002 show that the Veteran complained of the sudden onset of low back pain radiating to the left leg. He stated that the pain started on July 30, 2002. He stated that he had had chronic intermittent low back symptoms since he was in the Navy, but this was something new, and it rapidly began to progress. A MRI showed disc herniations at L5-S1 and at L4-L5. Subsequent diagnoses included L5-S1 herniated nucleus pulposus and left lower extremity radiculopathy. In June 2003 the Veteran had surgery for a herniated disc at L5-S1. In December 2005, he had additional surgery at L4-L5 and at L5-S1 because of left lower extremity radiculopathy and stenosis and disc herniation. On VA examination in March 2007, the Veteran stated that he first injured his low back in May 1995 while assigned to a Navy destroyer, the USS Radford. The Veteran stated that he and other crew members were moving ammunition and after that he had mechanical low back pain so severe that he went for treatment. He stated that he was treated with pain medication and rest and placed on light duty for one week. He stated that since then he has had problems with intermittent low back pain. He stated that he began experiencing left leg dysesthesia in 2002 or 2003. The assessment was lumbar degenerative disc disease, L5-S1 percutaneous discectomy in June 2002, L5-S1 and L4-L5 laminotomy, discectomy, and facetectomy in December 2005. The VA examiner expressed the opinion that it was less likely as not that the current lumbar spine condition was a result of the lumbar strain in service in May 1995. The VA examiner stated that it was likely that the current lumbar spine symptoms were the result of degenerative changes due to aging and the repetitive stresses incurred during the course of the Veteran's civilian employment. On VA examination in March 2011, the Veteran stated that he first injured his low back lifting a hatch cover aboard ship in 1993. He stated that he reinjured his low back in 1995 while bending over to tee up a golf ball. He stated that he began experiencing left leg dysesthesia in late 2002, and he had a L5-S1 herniated nucleus pulposus and other low back symptomatology. The impression was degenerative disc disease at L5-S1 with moderate disc interspace narrowing and mild degenerative spurring. The VA examiner expressed the opinion that it was less likely as not that the lumbar spine condition was related to service. The VA examiner explained that on separation examination the Veteran denied recurrent low back pain symptoms and the spine examination was normal. In March 2013, the Board obtained a VHA medical expert opinion, addressing the question of the likelihood that the post-service low back disc pathology with radiculopathy, first shown by MRI in 2002, was a progression of the low back symptoms in service or the development of a new and separate condition. In July 2013, the Board obtained a second opinion from a VHA expert, who is a VA Chief of Neurosurgery Service and assistant professor in the department of neurosurgery for a university medical school. The VHA expert reviewed and discussed the Veteran's chart including as to the events during service and afterward. The VHA expert expressed the opinion that it was less likely than not that the post-service low back pain, disk pathology, and radiculopathy was a progression of the symptoms during service. The VHA expert explained that there was no clear evidence of radiculopathy during service, and on separation examination, there was no history low back symptoms or radiculopathy and examination was within normal limits. The VHA expert noted that dysesthesia was documented in 2002 or 2003. The VHA expert noted that the operative note in December 2005 showed herniated disks and stenosis. The VHA expert expressed the opinion that it was unlikely that the condition started in 1993 and that it was unlikely that a herniated disk in 1993 or in 1995 did not cause radicular symptoms until 2002 or 2003. The VHA expert concluded that the symptoms during service and after service are more likely to be two separate conditions. The Veteran asserts that he injured his back while stationed on the USS Radford. He stated in his substantive appeal in August 2007 that he had back problems after the in-service injury, which became worse over the next several years in service and afterward due to two herniated disks. Analysis The service treatment records show that the Veteran was treated for a back injury in October 1993, and he was treated for complaints of low back pain in May 1995 after playing golf. This is satisfactory evidence that the Veteran experienced an injury during service. But on the basis of the service treatment records alone, neither degenerative disc disease at L5-S1 nor radiculopathy of the left lower extremity was affirmatively shown to have been present in service; and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. Also neither degenerative disc disease nor radiculopathy is a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date, 38 C.F.R. § 3.303(b), is available only for chronic diseases enumerated in the only regulation listing named chronic diseases, 38 C.F.R. § 3.309(a)). As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), the Veteran is competent to describe symptoms of back pain during service and since service, which is within the realm of his personal experience, and his statements are credible. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). And the Veteran is competent to identify a simple medical condition. Jandreau, at 1377. Neither degenerative disc disease nor radiculopathy is a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, without specialized education, training, or experience. 38 C.F.R. § 3.159; Layno, at 469-71. Also neither degenerative disc disease nor radiculopathy is a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, degenerative disc disease and radiculopathy are more analogous to an internal process such as rheumatic fever than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative disc disease and radiculopathy are not types of conditions under case law that has been found to be capable of lay observation. The Veteran's statements therefore are not competent evidence on the question of the presence or diagnosis of degenerative disc disease and radiculopathy in service and since service, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claims. To the extent the Veteran relates degenerative disc disease and radiculopathy to service, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As degenerative disc disease and radiculopathy are not the types of conditions that can be identified by the Veteran as a lay person based on personal observation either as a simple medical condition under Jandreau, or by case law, the Veteran's opinion as a lay person, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus of the claimed disabilities and the in-service injury or events Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claims. As the evidence is not admissible, the Board need not reach the credibility of the evidence. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or of a causal relationship or nexus between degenerative disc disease and radiculopathy and injury in service, then medical evidence is required to support the claim. The competent medical evidence of record consists of the opinion of a VHA expert, who is qualified through education, training, or experience to offer a diagnosis and to render a medical opinion. 38 C.F.R. § 3.159 (Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.). With regard to a medical opinion, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). In considering the analysis of the medical opinion and the conclusion rendered in the opinion that the Board can consider and weigh, the Board finds that the opinion of the VHA expert in July 2013 is persuasive medical evidence against the claims. The VHA expert's opinion is consistent with the facts of the case that the Veteran's disabilities can be traced to the sudden onset of low back pain radiating down the left leg in July 2002. Also the Veteran stated that while he had intermittent low back symptoms since service, the current back symptoms were something new. The VHA expert expressed the opinion that it was less likely than not that the post-service disk pathology and radiculopathy were a progression of the symptoms during service, because there was no clear evidence of radiculopathy during service and on separation examination there was no history low back symptoms or of radiculopathy and examination was within normal limits. The VHA expert explained that it was unlikely that degenerative disc pathology and radiculopathy started in 1993 and that it was unlikely that a herniated disc in 1993 or in 1995 did not cause radicular symptoms until 2002 or 2003. The VHA expert concluded that the symptoms during service and after service were more likely to be two separate conditions. The Board finds that the opinion of the VHA expert is persuasive evidence, which opposes rather than supports the claims. As there is no favorable medical evidence, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for either disability. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a back injury including degenerative disc disease at L5-S1 is denied. Service connection for radiculopathy of the left lower extremity due to a back injury is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs