Citation Nr: 1336576 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 04-32 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1979 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been before the Board several times. In May 2007 and January 2010, the Board remanded the claim so that the Veteran could receive corrective notice and so the RO could adjudicate the claim under the regulations in place when the claim was filed. In February 2011, the Board remanded the claim so that a spine examination and a neurological examination could be afforded to the Veteran. Finally, in May 2013, the Board requested a medical opinion through the Veterans Health Administration (VHA). The case has been returned to the Board for further appellate consideration. In the February 2011 decision, the Board found that new and material evidence had been submitted and reopened the claim. Therefore, that issue will not be discussed in this decision. The Board notes that in a February 2013 rating decision, the AMC granted an increased rating for the Veteran's service-connected major depressive disorder to 100 percent disabling effective May 8, 2000. The same rating decision found that the Veteran is not competent to handle the disbursement of funds. The issues from the February 2013 rating decision have not been appealed by the Veteran and are therefore not currently before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The evidence of record does not show that the Veteran's current back disorder is related to active duty service, or that arthritis was manifest within a year of service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active duty service, nor may it be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice 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. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by a letter dated in August 2001. However, that notice did not include the necessary proper notice requirement for reopening a claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Further notice was provided in February 2010. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the February 2010 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. The claim has been subsequently readjudicated by the RO in October 2010 and December 2012. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, and the Veteran's own assertions in support of her claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing her. See Bernard v. Brown, 4 Vet. App. 384 (1993). After the Board's February 2011 remand, the RO arranged for a VA orthopedic examination and a VA neurological examination in March 2011. The AMC referred the orthopedic examination report back to the examiner to obtain a clarification of the opinion. The examiner was not available and the Veteran was examined by another physician in October 2012. Later, the Board requested a VHA opinion from a neurosurgeon or an orthopedic surgeon. That opinion was provided in June 2013. The Board finds that the findings and medical opinions obtained in this case are more than adequate, as the examination reports and the medical opinions provide medical conclusions relevant to determining service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the claims file, including the pertinent medical records, was reviewed by the medical expert who provided the June 2013 VHA opinion. The Board finds that the examinations and opinions were adequate to allow proper adjudication of the issue on appeal. The Board finds that all attempts to develop the relevant facts have been properly and sufficiently exhausted. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection Criteria Service connection may 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(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran was first denied service connection for a back disorder by the RO in March 1981. That decision was appealed and the Board denied the claim in October 1982. As mentioned above, the current claim for service connection for a low back disorder was reopened by the Board in February 2011. In deciding whether service connection should be granted, the Board considered the service treatment records, private treatment records, VA treatment records, and the Veteran's own assertions in support of the claim. Each piece of evidence will be discussed in turn. The Veteran initially indicated on her enlistment medical history that she had recurrent back pain, but then crossed out that marking and marked that she did not have a history of recurrent back pain. She also indicated that she did not have arthritis. She was noted to have a normal spine at the time of her enlistment examination in August 1979. Service treatment records contain complaints of and treatment for bilateral hip pain and lumbar spine pain on a few occasions beginning in March 1980. The Veteran suffered a concussion after getting dizzy and falling in March 1980. She was assessed with minimal back strain when seen in April 1980. However, she had a normal spine and musculoskeletal examination at discharge in June 1980. Her separation examination did note patellar crepitance bilaterally. The Board also notes that there is a document in her personnel record from May 1980 where the Veteran's commanding officer noted that the Veteran had been seen in sick call 19 times since joining the Army in December 1979. The commander indicated that he felt that the Veteran was manipulating the system, and he felt that she was an ineffective soldier. The Veteran was afforded a VA examination in January 1981. X-rays of the lumbosacral spine did not reflect any findings of arthritis or disc herniation. The X-rays also noted normal contour and alignment of vertebrae and normal disc spaces. There were minimal sclerotic changes seen on the iliac margin of both sacroiliac joints. The VA examiner concluded that there was no evidence of an orthopedic condition of the lower back. The Veteran submitted a statement from a private physician dated in April 1982. The physician said the Veteran had severe arthritis in both hips and this caused a problem with ambulation. The Veteran did not provide any records from this physician. The Board denied her original claim in October 1982. In 1988, the Veteran submitted a statement from a physician. The statement explained that the Veteran was treated for osteoarthritis of the spine. No other records from that physician were provided and the claim was denied. Most of the evidence in the file was submitted with the current claim from August 2000. The claims file contains private treatment records from a number of sources that date from March 1989 to December 2009. A letter from Urban Healthcare, dated in March 1989, indicates the Veteran had been a patient since July 1988. She was reported to have received treatment for several conditions to include osteoarthritis and mallet toe that caused hip and back pain. The Veteran received treatment from Jacobi Medical Center from 1996 to 2009. A July 1996 computed tomography (CT) scan of the lumbosacral spine provided evidence of end-plate sclerotic changes and mild disc space narrowing at L1-2, and L5-S1 with mild disc bulge at L3-4 and L4-5 and a disc herniation at L5-S1 with indentation of the ventral aspect of the thecal sac and left neural foraminal narrowing. The Veteran also had X-rays of the lumbosacral spine taken in June 2003 and November 2005, respectively, with those reports in the claims folder. There is a partial report for what appears to have been X-rays of the lumbosacral spine in October 2007. The impression is the only page included and it indicates the X-rays showed minimal multilevel changes with mild mid-lumbar scoliosis that may be positional. This appears to be the first mention of scoliosis in the medical records. In February 2011, the Board remanded the Veteran's claim to obtain VA examinations to assess the evidence of records and provide opinions as to whether any currently diagnosed back disorder could be related to the Veteran's military service. The Veteran was afforded a VA orthopedic examination in March 2011. The Veteran provided a full history. She described her injury that occurred in 1980. She had been on a road march at Fort Jackson when she felt a sudden sharp pain and fell to the ground. The Veteran was given a profile and put on bed rest. She described suffering from a constant moderate level of pain that she described as sharp and burning in her low back. The pain radiates through the hips and down both legs. She also reported having daily severe flare-ups of pain in the low back. Her condition allegedly worsens with walking, going up and down stairs, prolonged sitting, and laying in one position for too long. She reported numbness and tingling in both legs and feet. She also claimed to have suffered one incapacitating episode in the previous year. The Veteran was afforded a complete physical examination that tested her range of motion, reflexes, and sensory and motor ability. Her range of motion was limited and there was pain with movement. Abnormalities were noted in her sensory and motor tests. The Veteran had X-rays of the lumbosacral spine taken at the examination. The interpretation was that there was scoliosis and mild arthritic changes. The examiner provided four diagnoses as follows: lumbar sprain, lumbar degenerative joint disease (DJD), lumbar discopathy and lumbar derangement. The VA examiner provided an opinion that it was at least as likely as not that the Veteran's current back disability/disabilities were due to her military service. The rationale was that the Veteran had back pain in service that was diagnosed as lumbar sprain in 1980. The examiner said the Veteran likely developed DJD of the lumbar spine, but noted that it was a non-service connected condition. The examiner also commented that it was noted the Veteran had scoliosis that may have been long standing and the scoliosis could have caused DJD. However, the examiner also opined that the inactivity of the Veteran due to other medical problems could have played a part in the progression of her back pain and complications. The Board notes that this examiner's opinion weighs in favor of service connection. The Veteran was also afforded a VA neurological examination in March 2011. The Board had requested such an examination if it was determined that any back disability was found to be related to service. The purpose was to evaluate the Veteran for any neurological disorders of the lower extremities that could be related to her back disability. The examiner did not diagnose a neurological disorder but said the Veteran had a diffused pain joint syndrome. The AMC referred the orthopedic examination report back to the examiner to obtain clarification of the opinion of March 2011. The AMC wanted an opinion on whether the Veteran's scoliosis, which was noted to have possibly been long standing, was the cause of the Veteran's current back disorder, or if the Veteran's one time complaint of back pain in service in 1980, that carried a diagnosis of lumbar strain, was the cause of the Veteran's current back disorder. The examiner who performed the March 2011 examination was not available and the Veteran was examined by another physician in October 2012. The new examiner provided three diagnoses for back disabilities that included: back strain, mild degenerative changes, and scoliosis. The examiner reviewed the claims folder and the Veteran's history during service. The history that the Veteran provided differed from the one she gave to the previous examiner in that she claimed she began experiencing back pain radiating down both of her legs in December 1979. She claims to have gone on leave and that when she returned, the pain got worse. She said she was placed on profile for light duty. She also reported the March 1980 fall. She claimed the pain got worse and she was put on bed rest. She said she was on crutches because of the back pain and leg swelling and she had bandages on both legs. She reported that she had to do a 13 mile road march on crutches. The Veteran reported that after she was discharged from service she continued to have back pain. She reported that over the years it got worse and she started to have numbness in her feet (she had diabetes diagnosed in 2006). She claimed to have been using a cane since leaving the military. She was diagnosed with upper and lower limb weakness and she cannot use a walker. She reported pain from her neck down on a daily basis and pain that radiates down both her legs. The pain was described as constant in her legs. A physical examination was conducted that tested her range of motion, reflexes, and sensory and motor ability. The examiner noted the treatment for back pain in service but said there was no acute injury at that time. The examiner cited to the November 2005 X-ray from Jacobi that showed mild degenerative changes. The examiner concluded that, the time lag and the mild degenerative changes shown on the X-ray pointed to the degenerative changes being age related. Therefore, the examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not address the other evidence of record to include the statement from the private physician regarding arthritis in the 1980s, the 1996 CT scan report and the June 2003 X-ray report. The Board then forwarded the claims file to obtain another medical opinion. The Board requested a VHA opinion on whether there is at least a 50 percent probability or greater (at least as likely as not) that any current back disability/disabilities are a result of service. The Chief of Neurosurgery from the San Francisco VAMC provided an opinion in June 2013. The examiner reviewed the evidence submitted since May 2000. The Veteran has had several imaging studies of the lumbar spine including plain X-rays, CT scans and MRI. The examiner found that all of these studies show findings in the lumbar spine that are most commonly associated with age-related degenerative changes. These changes appear to be progressive over the time frame from May 2000 to the present. For example, in June 2003 the patient had AP and lateral lumbar X-rays. These showed that her intervertebral disc spaces to be "within normal limits" with no evidence of spondylosis. The opinion also noted the October 2007 X-ray. The partial X-ray report noted "minimal" multilevel degenerative changes, which appears to have been a change since June 2003. The 2007 X-rays also noted a mild rotational scoliosis, but that this could be "positional." The opinion explained that rational scoliosis means that the bones of the spine appear to be rotated slightly relative to one another. The opinion provided that this may be a real phenomenon, but also could simply mean that the patient was not lying or standing straight while the X-rays were being taken. If the rotational scoliosis were real, one would expect this finding to be seen on subsequent imaging, but this does not appear to be the case. Further, the opinion pointed out that in November 2005 there was a total spine MRI and there was no mention of scoliosis on this study. The VHA opinion explained the difference between plain X-rays and CT scans or MRI. Plain X-rays cannot provide detailed evaluation of the disc spaces or subtle changes in the vertebral bodies. For example, although the June 2003 X-rays appear to be benign, there was a CT scan performed in August 1996 which did show disc space endplate changes with mild disc space narrowing at L1-L2 and L5-S1, as well as mild disc herniations particularly at L5-S1. The L5-S1 disc bulge was on the left side and caused some narrowing of the nerve space (foramen) on that side. The VHA opinion noted, these findings would not necessarily be reflected on plain X-rays. The patient's MRI from "November 2005 did show the left sided disc herniation at L5-S1 as well as an apparently new disc at L1-L2 with an annular tear (a weakened spot on the outer border of the disc)." The opinion also noted that the only mention of any findings in any of the imaging studies that appeared to be clearly traumatic in nature was an old coccygeal fracture mentioned on the June 2003 X-rays. The opinion noted that there is no way to tell how old this fracture is, although there was no mention of it in prior imaging reports. Moreover, the opinion noted, such a fracture would manifest as pain that could be chronic in nature but limited to the tailbone region only. The opinion provided that the radiographic studies in the timeframe specified for review show evidence of progressive changes in the spine, all of which are commonly seen as one advances in age. "There is no evidence of prior trauma other than the coccygeal (tailbone) fracture mentioned in one report. The changes seen in the spine on these studies could be expected to cause symptoms that could range from nothing (no symptoms at all) to moderate back pain and/or symptoms of sciatica (radiculopathy) in the left buttock, posterior leg and perhaps part of the left foot. No symptoms would be expected in the right leg, and none of these findings would cause any symptoms above the low back. Moreover, on physical examination, the most likely finding that the patient would have is a positive straight leg raise test on the left, meaning that any sciatica-like symptoms would be worsened by raising the left leg. This would correspond with nerve compression on the left side due to herniated disc at L5-S1. Upon review of the record, however, the patient has pain everywhere 'from the neck down.' She has no pattern of pain or symptoms as documented by multiple examiners that correlate anatomically with the findings on MRI or other imaging studies. She also has a negative straight leg raise test as documented by physical examination in the record." In summary, the opinion provided that although the Veteran has evidence of changes in her spine that have been progressive over the past 13 years, the symptoms that she is having do not correlate with her imaging findings. Therefore the examiner did not believe that the Veteran's symptoms are being caused by these spinal findings. Further, the opinion noted that the Veteran has "a number of other medical problems (most notably diabetes and depression) that can cause pain and other somatic symptoms all over the body in a non-specific pattern, which sounds more consistent with her own description of her pain. Diabetes can cause nerve symptoms by causing destruction of the nerves themselves, and depression is very well known to be associated with a 'whole body' pain syndrome that often masquerades as spinal or joint problems. Finally, the changes in her spine are consistent with simple aging of the spine, and in the overwhelming majority of patients (even those with a history of trauma) these changes are due to age-related degeneration and nothing more." The examiner concluded that "in reviewing the record as a whole including her imagining findings, her own description of her pain and the physical examination findings documented in the record, I believe there is less than a 50% probability that her current back disability is the result of her military service. There is simply no radiographic evidence and not enough physical findings evidence to sufficiently support such a claim. As mentioned above, there are also multiple other medical issues present (particularly diabetes and depression) that could easily account for the symptoms that she is currently having." The competent medical opinion supports a finding that service connection is not warranted. The Board also considered the Veteran's assertions. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has made numerous statements over the course of this claim. Many of the statements reflect a description of her symptoms and history that she has provided to the various examiners discussed above. The Veteran also asserted on several occasions, including in a statement in September 2004, that her back pain was chronic since service and that the pain she experienced in service was not acute or transitory. The Veteran's sister submitted a statement that asserted that the Veteran had been healthy before joining the military but that she began complaining of health problems during service. A statement from the Veteran's daughter asserts that the Veteran has been in significant pain for as long as the daughter can recall. The Board recognizes that these lay observations are competent to describe symptoms; however, they are not competent to provide an opinion on a question as complex as the etiology of the Veteran's back condition. The Board also considered the arguments made by the Veteran's representative. In the brief filed in September 2013, the representative argued that service connection is warranted and should be granted, especially in light of the dueling and conflicting expert medical opinions. The Board recognizes that the March 2011 VA examination findings favor a finding of service connection but the October 2012 VA examination findings and the June 2013 VHA opinion weigh against a finding of service connection. In weighing the competent medical evidence, the Board gives greater probative weight to the VHA opinion as it offers an opinion on the complete etiology of the Veteran's back condition. The VHA opinion is clear that the current problems are not likely related to the Veteran's time in service. While she had a documented injury in service and has current back problems, the medical evidence does not support a finding of a nexus between the current problems and the 1980 injury. The March 2011 examination that did suggest a finding of service connection, was not clear on the etiology of the Veteran's condition. That was exactly the reason why the AMC remanded the claim. The second examiner provided a more complete assessment of the etiology of the Veteran's back condition and found that the condition was not connected to service. Even though the second opinion was more complete and clear, in the interest of providing the benefit of the doubt to the Veteran and because the opinion did not refer to certain past radiological evidence, the Board sought a VHA opinion. That opinion, as discussed in the preceding paragraph, found that in light of the Veteran's history, her back condition is less likely than not related to service. The Board gives greater probative weight to the competent medical opinion of the VHA opinion over the Veteran's assertions. The Veteran's current problems were not caused by or aggravated by her time in service. Therefore, the Board finds that service connection cannot be granted. Accordingly, the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs