Citation Nr: 1336857 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-09 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to July 1987, and from September 1988 to June 1990. He was discharged for "misconduct - commission of [a] serious offense," but his character of discharge was general discharge under honorable conditions. See DD 214. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington denied service connection for lumbar disc disease and status post lumbar disc surgery with fusion and laminectomy at L5-S1; bilateral hearing loss; and tinnitus. In a September 2007 rating action, the RO in Indianapolis, Indiana granted service connection for tinnitus (10%, from March 14, 2006). The Veteran has not filed a notice of disagreement with the rating or effective date assigned to this now service-connected disability. No claim regarding the Veteran's tinnitus is in appellate status before the Board at this time. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The statement of the case issued in March 2008 included only the issue of entitlement to service connection for a lumbosacral spine disability. In an August 2008 statement, the Veteran withdrew his claim for service connection for hearing loss. Thus, the only issue that is currently in appellate status before the Board is the Veteran's claim for service connection for a lumbosacral spine disability. [Due to the location of the Veteran's current residence, jurisdiction of his appeal has been transferred to the RO in St. Paul, Minnesota.] On the April 2008 VA Form 9, the Veteran requested a hearing at the RO before a Hearing Officer. However, in an August 2008 statement, the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(e) (2013). In March 2012, the Board remanded this appeal for additional development. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see August 2012 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records dated from 2006 to 2010 and an October 2013 Informal Hearing Presentation. The remaining documents in the VVA file are either duplicative of the evidence in the paper claims file or irrelevant to this appeal. In a July 2012 statement, the Veteran raised claims for service connection for psychiatric disability and nerve damage in both legs. In an October 2012 rating action, the RO denied both issues. See VVA. The Veteran has not filed a notice of disagreement with the October 2012 rating decision; thus, no claim regarding these disabilities is in appellate status before the Board. FINDING OF FACT Any lumbar spine injury in service was acute and resolved with no residual disability at the time of separation, arthritis of the lumbar spine was not diagnosed within one year of service discharge, and the preponderance of the evidence fails to establish that the Veteran's current lumbar spine disability is related to any event, injury, or disease during service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the service connection claim, the Veteran was mailed a letter in May 2006, prior to the initial adjudication of the claim in October 2006, advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. The Veteran's available service treatment records (STRs) are associated with his claims file. Pertinent post-service treatment records have been associated with the claims file. He has not identified any outstanding, available evidence, to include medical records, which could be obtained to substantiate the claim. The Veteran was provided the appropriate VA examinations and the appropriate medical opinion was obtained, most recently in June 2012, to determine the nature and etiology of his claimed disability. The June 2012 opinion was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the June 2012 opinion satisfied the directives of the March 2012 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, evidentiary development is complete. Accordingly, the Board is satisfied that VA has complied with its duties to notify and assist the Veteran. II. Service Connection Claim A. Law and Regulations Under the relevant laws and regulations, 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. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis is a qualifying chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. B. Factual Background and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he injured his back in 1990 during service while stationed in Panama. He reported that he was in a bar fight and was thrown into some chairs. See March 2006 statement from the Veteran and August 2006 VA examination report. The Veteran has stated that his back had bothered him since the in-service accident. See March and April 1997 private treatment records. STRs show that, in December 1988, the Veteran sought treatment for complaints of low back pain, a sore throat, and a cough with sputum. A physical examination of the Veteran's back demonstrated tenderness to palpation, decreased range of motion, and ridged back muscles. A possible viral infection was assessed. In February 1989, the Veteran injured his back after swinging an axe. He complained of pain that radiated to his right thigh but denied a history of chronic back pain. Upon physical examination, there was tenderness on palpation. The Veteran would not cooperate with range of motion testing, but could sit and squat down to tie his shoes. Straight leg raising was 90 degrees bilaterally. The Veteran would not move his legs voluntarily, but could wiggle his toes. The assessment was "supratentorial disorder and somatic expression thereof with probable acute need to go home and lie down." No organic pathology was found. On April 30, 1990, the Veteran complained of back pain following a reported injury two days earlier. He related a history of back pain of two years' duration. A small wound on the upper back was noted. X-ray studies were negative. The impression was contusion. A May 1, 1990 follow-up note shows that the Veteran complained of back and neck pain. He reportedly had been thrown against a chair a few days earlier. He also complained of parasthesis of his left upper extremity. There was tenderness to palpation of C7 and T1. X-ray studies were normal. No diagnosis was given. On May 5, 1990, the Veteran received emergency care for pain in the interscapular area. X-ray studies were normal. The assessment was back pain. The Veteran was reevaluated on May 8, 1990, at which time he reported minimal improvement but denied paresthesis. There was tenderness to palpation at T3-T4. A neurological examination was normal. The assessment was contusion to the back. The Veteran was placed in a soft cervical collar. A May 15, 1990 "Chapter" examination contains an abnormal clinical evaluation of the spine. The clinician noted that there was right trapezius tenderness with reduced active range of motion and strength secondary to discomfort. The diagnosis was skeletal muscular strain improving with treatment from physical therapy. The Veteran denied recurrent back pain on the accompanying medical history report. On May 25, 1990, the Veteran was treated for pain in his neck and back. At that time, he mentioned the back injury that had occurred two years earlier. There was marked impairment in range of motion of all spheres secondary to pain and stiffness. There was a profound spasm in the right trapezius with tenderness to palpation. There was also tenderness to the midline at T2, T3 and mild posterior lower cervical tenderness. A motor examination was normal. There was diminished light touch sensation at C5, C6. Deep tendon reflexes were normal. X-ray studies were normal. The assessment was rule out upper cervical/thoracic spine injury. A hard cervical collar was prescribed. On May 28 and 29, 1990, the Veteran received emergency care. He reported that his legs, right arm, and right shoulder felt numb shortly before he fell to the floor. He also complained of a muscle spasm in his upper back and neck. The clinician noted that the Veteran had a collar on his neck that was reportedly "from an old problem." The initial assessment was back and shoulder spasms, but was later noted to be history of chronic cervical spine pain. A May 30, 1990 neurosurgical consultation record contains a diagnosis of "probabl[e] [herniated cervical disc and herniated lumbar disc]." The doctor prescribed cervical traction and noted that a myelogram would be requested if there was no improvement. The Veteran was discharged two weeks later. According to post-service private treatment records, the Veteran was treated for low back pain in March 1997 after injuring his back at work ("Regis"). There was a conflicting story as to what had triggered his most recent acute episode. He gave a prior history of back problems, to include an incident one year earlier that had lasted 4-6 weeks, but denied any recent problems. The diagnosis was acute annular tear, lumbosacral spine. Upon follow-up a few days later, the Veteran described a history of low back pain going back as far as 1991 when he was told that he had a herniated disc. He also reported being seen in 1993 and described a "pelvic bone pushing inward." There was palpable tenderness in the low back area at approximately L5-S1 at midline, which radiated diffusely to the right side where there was tenderness just above the right buttock. There was also sciatic notch tenderness. Straight leg raising was negative bilaterally except for low back pain. Range of motion was highly compromised with forward flexion to 20 degrees. Extension was negligible and very painful. Motor and sensory examinations were normal. The diagnosis was acute mechanical low back pain due to annular tear. A March 1997 private MRI study revealed minimal posterior facet degenerative changes L4-L5 and L5-S1 level and minimal dehydration of the L4-5 disc and loss of disc height consistent with early degenerative change. When the Veteran was seen in April 1997, he reported that he started having problems with his back in 1990 when he fell during a fight and developed upper and lower back pain. He was reportedly diagnosed with a herniated disc, which he claimed was confirmed by MRI. He stated that the pain persisted for about a year, then "went away completely." He was "okay" until the previous year when the pain gradually came back and became significantly worse at work. He worked at a warehouse, and his job involved "a lot of lifting." He underwent a facet joint block L4-L5 and L5-S1 on the right. A May 1997 private treatment record shows that the Veteran had attended several sessions of physical therapy but continued to complain of significant pain confined to the lower lumbar region. He was released to work in July 1997. In the following month, he reported that he had injured his back again while lifting at work. Degenerative disc disease with secondary changes in the facet joints and muscle strain/sprain was diagnosed. October 1997 private treatment records note that the Veteran injured his back lifting boxes at work in August 1997. CT scan showed diffuse bulging of L5-S1. The examiner noted that a March 1997 MRI study following a work injury was essentially within normal limits, with only minimal disc bulging. The examiner opined that the Veteran's "present condition is 85% due to due to his first injury at 'the Ridges.' I believe the remaining 15% is due to his last injury which was on August 15 . . . while lifting heavy boxes." In November 1997, the Veteran underwent a discography of L3-4, L4-5, and L5-S1. In January 1998, he underwent an L5-S1 discectomy. The diagnosis was discogenic pain syndrome at the L5-S1 level; confirmed segmental instability; and contained disc herniation at the L5-S1 level. A post-surgical CT scan revealed postoperative changes L5-S1 with cages in good position and a small piece of bone adjacent to the left L5 nerve root that did not impinge on the nerve root. The Veteran again received private treatment for his back in April 2005. The diagnosis of probable pseudoarthrosis L5-S1 status post PLIF with Ray cages (and iliac bone grafting) was confirmed by MRI scan. In June 2005, he underwent a lumbar discography L3-4 and L4-5. An August 2006 VA examination report shows that the Veteran stated that he had injured his back in 1990 during a bar fight. He related problems with low back pain and stiffness off and on afterwards. He also reported injuring his back at work in 1997, after which he developed chronic back problems. He complained of chronic low back pain that was aching in nature, as well as stiffness and dysmobility. The pain radiated down both lower extremities into his feet. He also noted diffuse numbness and tingling with weakness and fatigability in both lower extremities, as well as intermittent erectile dysfunction. He wore a back brace and used a cane to walk. The examiner diagnosed lumbar disc disease and status post lumbar disc surgery with fusion and laminectomy at L5-S1; chronic psychogenic lumbosacral spine pain; and wedge compression fracture at T12 of undetermined age. The examiner stated that he could not provide a nexus opinion without resorting to speculation because the claims file was not available for review. VA treatment records dated from 2006 to 2007 note the Veteran's ongoing complaints and treatment for back problems. An October 2007 VA examination report shows that the Veteran complained of back pain since 1992. The examiner reviewed the history that the Veteran gave during the August 2006 examination. In addition, the examiner reviewed the claims file (to include the STRs) and administered a detailed examination. The examiner opined that the Veteran's low back disability was not caused by, or was a result of, an injury during service but rather was caused by a work-related injury sustained in 1997, which resulted in bulging of the L5-S1 disc. The examiner explained that there was no mention of back problems after the Veteran's discharge until 1997. In May 2008 a VA examiner reviewed the claims file, including the October 2007 VA examination report and reiterated the October 2007 examiner's opinions. VA treatment records dated from 2008 to 2010 note the Veteran's ongoing complaints and treatment for back problems. A June 2012 disability benefits questionnaire (DBQ) notes that the VA physician reviewed the claims file and opined that the Veteran's current lumbar spine disability was less likely than not incurred during his military service or related to an in-service injury. He stated: Veteran was seen for back pain during military service and had back injury and was determined by neurosurgery to have HCP [herniated cervical pulposus] and HLP [herniated lumbar pulposus] prior to discharge. He had no further evaluation prior to discharge to confirm this diagnosis. He had no ongoing care for this condition until he experienced a work-related injury in 1997. He has verbal reports of ongoing symptoms regarding this condition including verbal documentation of visit in 1993 when he describes "pelvic bone pushing inward" however there is no primary medical evidence regarding this care. The VA physician noted the Veteran's history of back injury in 1990, and that the Veteran reported in April 1997 that his pain persisted for one year, went away completely, and then gradually came back in about a year earlier. The VA physician opined: Therefore, there is evidence from medical records with [the Veteran's] report that he had no ongoing chronic condition severe enough to seek intervention until he had an additional intervening interceding injury with work-related injury. Intervening private opinions regarding work-related injury [as shown in an October 1997 private treatment record] [a]lso do not refer to any ongoing issues relating to military service. After his work-related injury veteran had chronic ongoing care, and evaluation including CT scans, MRIs, epidural steroid injections, discograms, decompression with interbody fusion . . . with further ongoing care for pain. It was therefore the examiner's opinion that the Veteran's current low back disability is not related to service, to include any back injury therein. Rather, the examiner believed that the Veteran's current back disability is at least as likely as not due to post-service work injuries. [It was only after these injuries that the Veteran sought medical intervention for his back problems.] Regarding the etiology of lumbar spine disability, the medical evidence of record shows that such disability has been diagnosed. Upon review of the evidence, the Board acknowledges that the Veteran was seen for complaints specific to the low back (lumbar spine) on during active duty. However, there is no evidence (nor does the Veteran contend) that he was treated for ongoing back problems for many years after May 1990. The first post-service medical evidence of such disability is in 1997, nearly 7 years after service. Here, the Board notes that, in the absence of a diagnosis of arthritis within one year of service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307 and 3.309. Regarding the etiology of the Veteran's current low back disability, the June 2012 DBQ opinion is clearly against the claim. The VA physician considered the Veteran's history of in-service accident as well as his stated contentions. After considering evidence of record, the VA examiner opined that the Veteran's back disability is less likely than not incurred in or caused by service, to include the accident in 1990. The VA examiner's references to specific evidence make for persuasive rationale. There is no medical evidence to the contrary. (The Board notes the arguments presented by the Veteran's representative in October 2013 to the effect that an October 1997 examiner opined that the Veteran's current back condition was 85% attributed to an in-service event. See VVA. In fact, this is a misstatement of the treatment record. As noted above, the October 1997 private physician stated that the Veteran's current back disability was 85% due to his first injury post-service work injury in March 1997 and that the remaining 15% was due to his most recent work injury in August 1997.) The Board has not overlooked the Veteran's contentions but finds that the contradictory nature of his statements casts doubt on his assertions that he suffered chronic back problems following the above referenced in-service injury. There is little question that he sustained back injuries in service. Such is well-documented in the record. However, there is simply no evidence to support his more recent assertion that he experienced ongoing pain since that accident. As noted above, he told a private physician that this pain had completely resolved within a year of the accident. Further, there were no findings of complaints or diagnosis of back problems until a March 1997 work injury. In short, his claim of experiencing chronic pain since injuring his back in service is not found to be credible. Also, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating and determining causal connections for musculoskeletal disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). This lay evidence does not constitute competent evidence and lacks probative value. The Board has considered the benefit-of-the-doubt doctrine, but the preponderance of the evidence is against this issue. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs