Citation Nr: 1337402 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-00 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a lumbar spine disability. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to December 1973, and from January 1980 to May 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at video conference hearings before the undersigned Veterans Law Judge in February 2010 and November 2011. The appeal was previously remanded by the Board in May 2010 and May 2013, for additional development. That development having been completed, the case has been returned to the Board at this time for further appellate review. The Veteran's claim of service connection for bilateral chondromalacia patellae was previously before the Board in May 2010 and May 2013 when it was remanded for additional evidentiary development. In June 2013, the RO granted service connection for right and left knee chondromalacia patellae. Therefore, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. A review of the documents in such 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 The most probative evidence indicates the Veteran's lumbar spine disability is not shown to have had its onset during service; arthritis of the lumbar spine was not manifest to a compensable degree within one year of separation from service; and a lumbar spine disorder, first documented after service, is not shown to be related to any injury, disease, or event of service origin. CONCLUSION OF LAW The requirements for establishing service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in May 2005, September 2006, September 2008, May 2010, and July 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice was timely because the claim was readjudicated in the August 2013 supplemental statements of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran appeared at two hearings before the Board. He presented oral testimony in support of his claim and also introduced additional documents for inclusion into the record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the Veterans Law Judge asked specific questions directed at identifying the elements of the claim that were lacking to substantiate the claim for benefits, and elicited testimony from the appellant in regard to his service during the period in question. In addition, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, the Social Security Administration (SSA) records, Virtual VA file, and available private and VA treatment records have been obtained. In addition, he has been provided with appropriate VA examinations in connection with the claim which provide etiological opinions and sufficiently describe the manifestations of the Veteran's disability for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic condition, to include arthritis, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he developed a lumbar spine disability as a result of multiple parachute jumps with heavy equipment during service. While in service, the Veteran received the Parachutist Badge. Moreover, included in the Veteran's claims folder is a Jump Record representing 22 parachute jumps during the period from August 1980 to April 1983. The service treatment records do not show any lumbar spine disorder, and on expiration of term of service (ETS) examination in March 1986, the Veteran's spine was clinically evaluated as normal. After service, VA medical records showed a low back injury in November 2002, at which time the Veteran was working as a truck driver, for which he received Workmen's Compensation. A private treatment record in October 2003, associated with the Veteran's Worker's Compensation claim, noted that the Veteran injured his back in November 2002 when he slipped and fell while climbing down a cabin of a refuse truck. The clinician noted a lumbar strain with aggravation of degenerative disk disease at L4-5, L5-S1. In correspondence dated in September 2005, the Veteran's private physician indicated that the Veteran was currently suffering from chronic low back pain secondary to osteoarthritis, which, although fairly common in the general population, was likely to have been caused at least in part by the Veteran's prior history of repeated trauma as a paratrooper. VA clinical treatment reports in February and March 2006, noted the Veteran's report of onset of low back pain in 1980 during parachutist school in service, worsened when he was thrown from a truck during a motor vehicle accident in 2001. Similarly, an August 2009 VA clinical treatment note recorded a history of an occupational injury to the back at age 50, after which the Veteran became too disabled to work. The Veteran underwent an orthopedic examination in June 2010. He related gradual onset of the back disorder in 1980 progressing with repeated parachute jumps. Following an examination of the Veteran, the examiner diagnosed lumbar spine osteoarthritis with no evidence of specific trauma. The examiner noted that a review of the claims file revealed multiple lumbar issues after 2003, following the work injury in November 2002. The examiner indicated that he could not find prior trauma that could be related to the Veteran's military service on description of his anatomic studies. Accordingly, based on examination of the Veteran, specific anatomic changes on available imaging studies, and considering the Veteran's reported history, the examiner concluded that the lumbar spine problem was less likely than not related to service. As set forth in the May 2013 remand, the Board determined that the June 2010 medical opinion was insufficient for deciding the claim. Accordingly, the Board remanded for a new examination and instructed the examiner consider the Veteran's complaints of onset of low back pain due to parachute jumps in service, his reports of recurrence of pain since that time, the September 2005 private physician's opinion that associated the Veteran's current back problems to the Veteran's in-service parachute activity, and the October 2004 evaluation report which suggested that the Veteran's lumbar spine disorder pre-existed the November 2002 work injury and was aggravated by it. Pursuant to the remand instruction, the Veteran was afforded a VA examination in June 2013. He reported onset of low back pain in service associated with wearing heavy equipment. He described worsening of the symptoms as the years progressed. The examiner noted that while the service treatment records documented injuries associated with the Veteran's performance of his duties, they did not contain any findings consistent with a lumbar medical condition or injury. The examiner noted that radiographic film of the Veteran's lumbar spine revealed diffuse lumbar spondylosis and the Veteran had undergone anterior lumbar fusion at L4-S1 in 2011, with no relief. Following an examination of the Veteran and a review of the evidence in the claims file, the examiner diagnosed lumbar spondylosis with intermittent radiculopathy and opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. With regards to the Veteran's report that his back was symptomatic when he wore a heavy payload during service, the examiner explained that these symptoms were considered a non-specific history and finding, which was common. Because the Veteran stated his pain was relieved upon removal of the payload, more likely than not his symptoms were attributable to non-specific muscular pain. Moreover, the current findings of diffuse lumbar changes, including a recent L4-S1 fusion without improvement in symptoms, suggested that the Veteran was suffering from osteoarthritis of the lumbar spine that was degenerative in nature and more likely attributable to aging, genetic pre-disposition, and a lifetime of use, as opposed to specific trauma, or cumulative repetitive stress injury while in the military. The examiner further addressed the medical evidence that suggested that the Veteran's lumbar spine disorder pre-existed the November 2002 work injury and was aggravated by it, and opined that such a finding was speculative as there was no evidence in the claims file to support the existence of a back disorder prior to 2002. The examiner reiterated that the Veteran's reports of intermittent low back pain in service associated with wearing heavy equipment and which remitted once the equipment was removed, was consistent with nonspecific muscular pain and fatigue, as opposed to aggravation of pre-existing osteoarthritis which was more refractory in nature. In this case, the medical evidence shows that the Veteran has a lumbar spine disability. Having determined that the Veteran currently has a diagnosed lumbar spine disability, the remaining question before the Board is whether such disability is related to his service. Upon review of the record, the Board finds that the most probative evidence is against the claim. The service treatment records do not show any lumbar spine disorder, and on ETS examination in March 1986, the Veteran's spine was clinically evaluated as normal. The Board finds that the service treatment records lack sufficient observation or even notation to establish any disability onset or chronicity in service. The Board acknowledges that arthritis is considered a "chronic" disability. However, the theory of continuity of symptomatology is only required when the condition noted during service (or in the presumptive period) 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). As previously noted, a chronic low back disability was not noted in service. Additionally, none was noted within the presumptive period post service. As an aside, and in the alternative, even when considering the veteran's competent and credible report of back problems in service, and in light of the fact that he was awarded the Parachutist Badge, the evidence still does not support a finding of continuity of symptomatology for lumbar spine arthritis. After service, the next record of treatment for a back disorder is not until 2003, when the Veteran was seen for complaints related to an occupational injury in 2002, more than 10 years after discharge from service. This evidence weighs against the Veteran's claim. That is, the prolonged period without complaint or treatment for low back pain at least until 2002, and the lack of clinical findings relating to the back until 2003, factor against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, as further discussed below, the VA examiner in June 2013 explained why the Veteran's alleged in-service reported lumbar spine symptoms were temporary in nature, as opposed to manifestations of a chronic lumbar spine disorder. As noted, the initial radiographic documentation of degenerative changes of the spine is well beyond the one-year presumptive period for manifestation of arthritis, service connection cannot be established for arthritis of affecting the spine on a presumptive basis. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Thus, the Board finds that service connection for arthritis is not warranted on a presumptive basis as a chronic disease. On the question of a link between the claimed disability and service, there is evidence both for and against the claim. Initially, the Board notes that a private treatment record in October 2003, associated with the Veteran's Worker's Compensation claim, noted a lumbar strain with aggravation of degenerative disk disease at L4-5, L5-S1. While the clinician appears to have suggested that a lumbar spine disability pre-existed the Veteran's occupational injury, the clinician did not etiologically associate any lumbar spine disability to service. Also in support of the claim, in September 2005 the Veteran's private physician indicated that the Veteran's chronic low back pain, secondary to osteoarthritis, was likely to have been caused at least in part by the Veteran's prior history of repeated trauma as a paratrooper. The clinician, however, failed to acknowledge post-service back injuries and the fact that back problems were initially recorded more than 10 years after discharge from service. Moreover, neither clinician provided a rationale or discussion to illustrate how the opinions were reached or what clinical data would support the opinions. Thus, although the statements were made by health-care professionals, the statements are nevertheless conclusory without medical analysis and are insufficient to allow the Board to make an informed decision as to what weight to assign against contrary evidence on the question of whether the Veteran's low back disability had onset in service. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion). As such, the Board affords these opinions less probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board assigns greater weight to the medical opinion of the June 2013 VA examiner because the examiner applied medical analysis to the significant facts of the case. The opinion provided adequate rationale and is consistent with other evidence of record, and included an access to the accurate background of the Veteran. Prejean v. West, 13 Vet. App. 444 (2000). The VA examiner's opinion was based on review of the Veteran's claims file, to include the service treatment records, and included an examination of the Veteran, and addressed his contentions as well as the September 2005 private physician's opinion that associated the Veteran's current back problems to the Veteran's in-service parachute activity, and the October 2003 evaluation report which suggested that the Veteran's lumbar spine disorder pre-existed the November 2002 work injury. The examiner explained why current findings associated with the lumbar spine disorder were not due to service. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record, to include the VA examiner's findings in June 2010. The Board recognizes the Veteran's contentions as to the diagnosis of a lumbar spine disability and relationship between lumbar spine disorder and multiple parachute jumps with heavy equipment during service with recurrence of symptoms. The Veteran is competent to report about what he experienced; however, as to the specific issue in this case, the diagnosis of spondylosis and degenerative changes of the lumbar spine, and its etiology are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person. The diagnoses were based on clinical findings, to include radiographic studies and are medical in nature. Due to the medical complexity of the issues involved, the Veteran's assertions alone are insufficient to establish service connection. As a lay person, the Veteran has not been shown to be qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. Thus, his lay assertions are of little, if any, probative value when offered to establish a causal connection between his lumbar spine disability and service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current lumbar spine disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the onset and etiology of his current lumbar spine disability is not a competent medical opinion. For the reasons set forth above, the Board finds the opinions of the VA examiners to be the most probative on this point. In summary, the most probative evidence shows that a lumbar spine disability was not shown in service or for many years after service, and is not otherwise related to active service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs