Citation Nr: 1336855 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-06 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic lumbar strain status post L5-S1 fusion, claimed as a low back injury. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for migraine headaches, to include as secondary to a neck disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from March 1977 to March 1979. The issue of service connection for a chronic lumbar strain originally came before the Board of Veterans Appeals (Board) from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at the RO in December 2008. A transcript of his hearing has been associated with the file. In February 2012, the Board denied the Veteran's claim, and he appealed it to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested that the Board's February 2012 decision be vacated and remanded as it pertains to the issues of entitlement to service connection for a chronic lumbar strain. Following the JMR, the Board requested that the Veterans Health Administration (VHA) specialist, provide a supplemental opinion. This supplemental opinion was received in May 2013, as discussed in more detail below. The appeal has now been returned to the Board for adjudication. The issues of entitlement to service connection for neck and migraine disorders come before the Board of Veterans Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issues of entitlement to service connection for neck and migraine disorders are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A low back disability was not manifest in service or within one year of service, and is unrelated to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in November 2005 discussed the evidence necessary to support a claim of entitlement to service connection. The evidence of record was discussed. The Veteran was told that VA could help him obtain pertinent records. A January 2006 letter addressed the status of the Veteran's claim. He was asked to provide information pertaining to an identified treatment source. In February 2007 the Veteran was advised of the manner in which VA determines disability ratings and effective dates. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Following the JMR, the Board requested that a Veterans Health Administration (VHA) specialist provide an opinion as to the etiology of the Veteran's claimed disorder. This opinion was received in May 2013, as discussed in more detail below. In a June 2013 letter, VA sent a letter to the Veteran and his representative indicating that he had 60 days to respond to the VHA opinion and/or send additional evidence in support of his claim. The Veteran responded with a July 2013 opinion from a private physician, Dr. F., which is also described blow. The Board notes that records from the U.S. Public Health Service, which were not associated with the claims file when it was last before the Board, were located and placed in the record. Service treatment records as well as VA and private treatment records are also associated with the claims file. Records from the Social Security Administration (SSA) have also been obtained. With respect to the VA spine examination and subsequent records review and opinion, the Board concludes that they are adequate for the purpose of deciding that claim; the physician who provided the May 2013 VHA opinion reviewed the record and specifically pointed to evidence of record in support of her conclusion. Moreover, the record included sufficient objective evidence to provide the physician with a complete illustration of the Veteran's back disability. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Rules and Regulations The Veteran maintains that he sustained an injury to his low back when he fell from a ladder in 1978. He asserts that he has residual disabilities that are related to that incident. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease 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). However, '[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.' Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Factual Background Service treatment records and U.S. Public Health Service records are negative for any diagnosis of a chronic back disorder. A December 1977 entry to the service treatment records notes the Veteran's complaint of back pain after diving. He reported stiffness and pain. On submarine physical examination in July 1978, the Veteran denied recurrent back pain and arthritis. Clinical examination was normal, and the Veteran was deemed to be qualified for submarine duty. A September 1978 entry into U.S. Public Health Service records indicates the Veteran's report of back pain following a dive the previous day. Acute strain was assessed. An X-ray was normal. An October 19, 1978 entry to the service treatment records indicates that the Veteran fell from a ladder and sustained injury to his left leg and mouth. Concurrent records from the U.S. Public Health Service show that the Veteran presented after a traumatic injury to his face. No bony fractures were noted on X-ray. Sutures were applied to the Veteran's lip and dental care was rendered. A laceration of the left leg was also sutured, and injury to the right elbow was noted. X-rays of the left leg and right elbow were normal. The remaining service treatment records indicate the Veteran was seen in the dental clinic. He also complained of a sore throat in November 1978 and was checked for mono in January 1979. On separation examination in March 1979 the Veteran denied recurrent back pain and arthritis. He did relate that he had fallen from a ladder in October 1978. The examining physician did not note any disabling conditions. Clinical examination was normal, and the Veteran was found to be qualified for release from active duty and to perform the duties of his rate at sea and on foreign service. A March 2002 report from Pain Management Specialists indicates the Veteran's report that he sustained an injury with resulting lumbar pain from blunt force trauma in December 2000. The Veteran related that he worked as a merchant marine and had an accident aboard ship. A July 2002 report by Dr. J. notes the Veteran's history of being injured at work in December 2000. In a June 2002 private treatment note, the Veteran was evaluated for right hip pain after an injury on a chemical tanker in December of 2000. The Veteran denied any prior to injury to his back or hip. On general clinical evaluation in September 2004, for the purpose of the Veteran's SSA disability claim, the Veteran related that he sustained multiple traumas in December 2000 when a compressor exploded aboard a commercial vessel. He identified symptoms related to his right shoulder, lumbar spine, and right eye. In his SSA claim, the Veteran indicated that he had been a merchant marine from 1991 to 2001. He stated that his duties included lifting 100 pounds or more on a regular basis. He noted that he had completed fire fighter training in 1993. He stated that he was limited in his ability to work by residuals of an injury suffered in December 2000 while on the job, to include a massive rotator cuff tear and anterior lumbar fusion due to herniated disc. A November 2004 report by Dr. J. noted the Veteran's statement that his right herniated discs were the result of an injury sustained in December 2000 while working as a merchant marine. The Veteran related that a pipe fitting burst with full force while he was sandblasting, and that he was knocked down. A VA spine examination was conducted in March 2006. The Veteran's history was reviewed. He related that he had experienced back pain since his fall in service. The examiner noted that the Veteran had surgery in 2002 and indicated that per the Veteran's report, the surgery helped significantly. Following physical examination, the diagnosis was chronic lumbar strain status post L5-S1 fusion. The examiner noted that he found no documentation in the claims file of an injury in service, and indicated that surgery was required 20 years after discharge. He indicated that it was not likely that the current disability was directly related to service. An October 2006 letter from a private chiropractor indicates that the author treated the Veteran from October 1993 to February 1994. He noted that the treatment was for a cervical condition related to a fall in 1979. A November 2006 report from a separate private chiropractor also notes the in-service fall and indicates that the Veteran presented in October 2006 with complaints of cervical and thoracic spine pain. In a November 2006 statement, the Veteran related that he fell from a ladder approximately 15 feet, causing injuries to his back, legs, and right shoulder. During his December 2008 hearing, the Veteran described his in-service injuries. He noted that he was placed on light duty until his separation from service. He stated that following service, he sought treatment from a chiropractor who was since deceased. He indicated that he used chiropractors over the previous 30 years until the disabilities finally resulted in surgery. In February 2011 a VA physician reviewed the Veteran's claims file. She concluded that she could not resolve the question of whether the Veteran's low back disability was related to service without resort to speculation. She noted that the service treatment records indicated that the Veteran's in-service back condition resolved quickly. She indicated that she was unable to state whether the current low back disability was due to the previously resolved condition. In a May 2013 VHA opinion, the physician reviewed the claims file to include the Veteran's service treatment records and post-service back complaints. The examiner noted that prior to his post-service injury, there are notes from the Veteran's chiropractors which reference cervical spine pain and radiographs showing multi-level disk disease. The examiner stated that multilevel degenerative disease is most often not caused by any single traumatic event. Considering the Veteran's extensive period between his in-service injury and his claimed disability, as well as the highly physically demanding nature of his work during that time, the examiner determined that it is less likely than not that his back pain that began in 1977 is related to his current disability. In a July 2013 private examination report, the physician stated that he reviewed the claims file. He noted that the Veteran experienced neck, bilateral shoulder, and back pain after the fall. He was taken to the US Public Service for treatment. He had follow-up care from October 1978 to January 1979. Afterwards he continued to have residual pain with his neck, shoulders, and back. The Veteran injured his back again in December 2002. He experienced severe increase of baseline pain. He underwent surgery for his back, but his back pain was slightly worse than his previous baseline pain level from the fall in 1978. After a physical examination, the examiner noted a diagnosis of chronic back pain status-post fall of 1978. The physician opined that it is at least as likely as not that the Veteran's cervical and lumbar spine disabilities are related to his military service, specifically the injuries sustained during his fall from the ladder in October 1978. Analysis The evidence clearly shows that the Veteran has a current diagnosis of a low back disability. As such, the critical question is whether any current low back was incurred in service or other incident of service. Based on the evidence of record, the Board concludes that it was not. The Board finds the May 2013 VHA opinion of significant probative value. The report was based on a complete review of the claims file, including service treatment records. Further, a complete and thorough rationale is provided for the opinions rendered. As noted, the examiner considered the Veteran's reports of back pain in service and continuity of back pain thereafter, but did not find the statements sufficient on which to base an opinion as to etiology. Based on all the evidence, the examiner concluded that the Veteran's current low back disability was not caused by or a result of any incident in military service. The examiner's conclusion is fully explained and consistent with the evidence of record. The only positive nexus opinions which relate the Veteran's current back pain to an injury in service, are the October 2006 letter from a private chiropractor and the July 2013 private examination report. Though the October 2006 private opinion indicated the Veteran was treated for a fall in 1979, the opinion indicated that he treated the Veteran for a cervical "condition" and made no reference to the Veteran's claimed low back disorder. Furthermore, the physician based his opinion on what he remembered from treatment more than 10 years prior, as he noted that all of the Veteran's private treatment records have been shredded. See Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (noting that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Additionally, the Board notes that the July 2013 private opinion is based on an inaccurate history. Significantly, though the Veteran's service treatment records clearly indicate the Veteran suffered an in-service fall, there are no complaints of back pain noted at the time, or any references to follow-up treatment related to the back after the fall, as the private examiner noted. Thus, the July 2013 private examiner's diagnosis and positive opinion is clearly based on the Veteran's inaccurately reported history that his back pain started after his in-service fall. Medical evaluation that is merely a recitation of veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). See also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (the Board cannot discount medical opinion solely because it is based on history provided by the veteran without also evaluating the credibility and weight of the history upon which the opinion is predicated). The Board has considered the Veteran's reports that he experienced a continuity of low back problems since active service. Credibility, however, is an adjudicative and not a medical determination. The Board has 'the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the 'inherent characteristics' of the Veteran's current statements as to the circumstances of his in-service injury and continuity of back problems are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. In that regard, the Board notes that the Veteran's service treatment records includes no complaints of low back pain to include treatment for the in-service fall. Furthermore, a physical examination of the Veteran's back was normal at separation. After service, there is no indication that the Veteran sought treatment for back problems for multiple years. According to the medical evidence of record, when the Veteran did first report back problems, in March 2002, the Veteran had been in a workplace accident two years prior. There are no additional treatment records dated between separation and March 2002 when the Veteran sought treatment for a post-service back injury. In a June 2002 private treatment note, the Veteran denied any prior to injury to his back. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board is not relying merely on a general absence of complaints in service. Rather, the Veteran was seen for complaints of back pain and assessed with strain during service; however, he denied any associated symptoms during subsequent submarine and separation physical examinations. Moreover, following the in-service fall, no provider recorded complaints referable to the Veteran's low back, and he denied pertinent symptoms on discharge examination. Accordingly, the Board finds that the Veteran's current statements are unreliable and not credible with respect to the question of onset of his claimed low back disability. The grant of service connection requires competent and credible evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains records of medical treatment related to the Veteran's back, it does not contain reliable evidence which relates this claimed disability to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative and credible than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, a VA physician has reviewed the record and concluded that the Veteran's low back disability is not related to service. In assigning high probative value to this opinion, the Board notes that the physician had the claims file for review, and specifically discussed evidence contained in the claims file to include the Veteran's history. There is no indication that the VA physician was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The Board thus finds the VA physician's opinion to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent reliable lay or medical evidence relating these claimed disabilities to service, the Board concludes that the claim of entitlement to service connection for low back and right shoulder disabilities must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for chronic lumbar strain status post L5-S1 fusion, claimed as a low back injury is denied. REMAND The Veteran is also seeking entitlement to service connection for a neck disorder due to an in-service fall and migraines as secondary to a claimed neck disorder. The claims were denied in an October 2008 RO decision and subsequently appealed. In January 2010, the Board remanded the claim of entitlement to service connection for a low back disability in order to attempt to obtain missing service treatment records from the Department of Health and Human Services. Additional service treatment records were associated with the claims folder in September 2010. The temporary file was not associated with the claims file in March 2012, and there is no indication that the neck and migraine issues have been considered with the additional service treatment records. In addition, since the October 2009 statement of the case, the Veteran's representative has submitted additional private opinions concerning the Veteran's neck disorder that have not been considered by the AOJ. As no waiver was submitted with this evidence, and it is not duplicative of the prior evidence of record, the Board may not review it at this time. Thus, remand is indicated to afford consideration of this additional evidence as well as any additional evidence to be obtained. 38 C.F.R. § 20.1304 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) After undertaking any other development deemed necessary, to include another VA examination, the RO/AMC should review the additional evidence received since the previous October 2009 statement of the case to determine whether the Veteran's claims can be granted. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs