Citation Nr: 1337600	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  10-32 421	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. Juliano, Counsel


INTRODUCTION

The Veteran served on active duty from January 1988 to January 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Boise, Idaho.  

Additional evidence was submitted within one year of the July 2009 rating decision, and August 2009 and November 2009 rating decisions continued the denial of the Veteran's claim.  See 38 C.F.R. § 3.156(b) (2013).

In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Boise, Idaho.  A transcript of the proceeding has been associated with the claims file.

In January 2013, the Board remanded the Veteran's claim for further development.  Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review.


FINDING OF FACT

The preponderance of the evidence is against a finding that Veteran's low back condition is casually or etiologically related to a disease, injury, or incident in service; no arthritic condition has been shown within one year of separation from service.


CONCLUSION OF LAW

Service connection for a low back disability is not warranted, nor may it be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board finds that June 2009 and January 2010 VCAA letters fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013).  The June 2009 and January 2010 letters informed the Veteran of what information or evidence was needed to support his claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain.  These letters also explained how VA assigns disability ratings and effective dates.  See Dingess, supra.

The Board also concludes that VA's duty to assist has been satisfied.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file.  The Veteran has not identified any outstanding, relevant treatment records for VA to obtain.  

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of 
(1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4) (2013);  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran was provided with a VA examination relating to his claim in March 2013.  The Board finds the March 2013 VA examination report to be sufficient upon which to base a decision with regard to the Veteran's claim.  The Veteran was interviewed and thoroughly examined in March 2013, the examiner reviewed the claims file, and the examiner's opinion and rationale are sufficient upon which to base a decision with regard to the Veteran's claim.

To the extent that the Veteran's representative argues that his lay testimony was not adequately considered in the VA opinion of March 2013, the Board disagrees.  Review of the opinion confirms that the examiner acknowledged and accepted the Veteran's credible testimony of in-service pain and pain thereafter.  However, the examiner placed more weight on the medical evidence of record and provided an adequate rationale for doing so.  Therefore, the Board finds the opinion is adequate.

In January 2013, the Board remanded the Veteran's claim so that copies of his VA treatment records dated since February 2009 could be associated with the claims file, and so that the Veteran could be provided with a VA examination relating to his claim.  Pursuant to the Board's remand directives, copies of the Veteran's VA treatment records dated since February 2009 were associated with the claims file, he was subsequently provided with a VA examination in March 2013 that answered all of the questions posed by the Board, and then his claim was readjudicated by way of a March 2013 Supplemental Statement of the Case (SSOC).  Therefore, the Board finds that there was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2013).  Such will support a grant of service connection when the disability at issue is one considered "chronic" pursuant to 38 C.F.R. §§ 3.307, 3.309 (2013).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013).
For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013).  In the instant case, however, there is no presumed service connection because the Veteran's degenerative disc disease or degenerative joint disease (i.e., arthritis) of the low back was not medically diagnosed within one year of discharge; rather, it was not diagnosed until 2006, as shown below.  Nevertheless, the Board will consider whether service connection is otherwise warranted on a direct basis.
In the absence of presumptive service connection, 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).

The Veteran served on active duty from January 1988 to January 1992.  He claims that he incurred a low back disability in service.  Specifically, he asserts that he injured his low back during a training exercise in Saudi Arabia lifting M108 and M109 Howitzers that weighed up to 205 lbs, and that he was treated by a corpsman who told him he had a strained back muscle.  See, e.g., Statement, July 2009; Notice of Disagreement, January 2010; Form 646, October 2011.

The Veteran's service treatment records are silent as to any back problems except that the Veteran's December 1987 enlistment report of medical history reflects that the clinician noted a pre-service history of a back injury in a motor vehicle accident in 1984, but that the Veteran had no admission, no treatment, and no present complaints about his back.  Examination of the spine was normal.

As an initial matter, the Board acknowledges the Veteran's reported history to the VA examiner regarding a pre-service 1984 motor vehicle accident, and that his December 1987 enlistment report of medical history reflects his reported history of a back injury in a motor vehicle accident in 1984.  Even so, the Veteran's spine was found normal on examination upon entry into service.  Therefore, the Board emphasizes that no preexisting condition was noted on entry, and the Board adds that there is no medical opinion linking the Veteran's low back condition to any preexisting condition, such that the provisions relating to preexisting conditions and aggravation of a preexisting condition are not for application in this case, and that the presumption of soundness applies.  See 38 U.S.C.A. §§ 1111, 1132, 1153 (West 2002).

Also, the Board notes at the outset that the Veteran himself has never alleged that he injured his low back in combat, and there is no evidence that the Veteran injured his low back in combat.  Rather, his representative asserts that because the Veteran served in a combat area or combat zone, the 38 U.S.C.A. § 1154(b) combat presumption should apply in this case.  See Board hearing transcript at 13.  The Court of Appeals for the Federal Circuit held in Moran v. Peake, 525 F.3d 1157 (2008), however, that "the term 'engaged in combat with the enemy' in § 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis.  A showing of no more than service in a general 'combat area' or 'combat zone' is not sufficient to trigger the evidentiary benefit of § 1154(b)."  Therefore, the Board finds that the combat presumption provisions of 38 U.S.C.A. § 1154(b) are not for application.  Nevertheless, the Veteran may establish entitlement to service connection on a direct basis.

Post-service, the first medical evidence of any low back problems is a June 2006 private treatment record from Dr. E.D. reflecting that the Veteran reported pain in his back since helping his parents move a few days prior; he was referred to physical therapy.  An August 2006 record from Dr. E.D. reflects that the Veteran strained his back in June 2006 moving furniture, and also notes a prior history of injuring his back in a motor vehicle accident (in 1984, albeit the Veteran testified that the notation of a fracture was in error, which the Board accepts as credible for purposes of this decision).  An August 2006 MRI showed, among other things, degenerative disc disease (DDD) at L3 to L4 and L4 to S1, and disc herniation at L3 to L4.

Private treatment records from Dr. J.V. reflect that in September 2006, a microdisectomy for a herniated disc at L4-L5 was performed, in December 2006, redo surgery was performed, and in October 2008, a decompressive laminectomy and various spinal fusions were performed (all by Dr. J.V.).

Subsequent VA treatment records reflect that the Veteran has been followed for low back pain.  See, e.g., May 2012.  Private treatment records also show that he received post-surgical physical therapy.

The Veteran was provided with a VA examination in March 2013.  The VA examiner noted the Veteran's reported history of injuring his low back in service around 1990 while lifting a 205-pound artillery round.  The Veteran reported that a medic told him that he strained a back muscle, and that with a little bed rest it got better.  The Veteran reported experiencing back pain the rest of his service and after discharge.  At the same time, however, the Veteran also reported working post-service as a corrections officer, that his back was "pretty good" at that time, and that he subsequently was able to work for a lumbar company for eight years doing a lot of lifting and that it was at that time that his back pain became more frequent.  The examiner noted the Veteran's history of surgical treatment in 2006 and 2008.  An x-ray report reflects an impression of stable mild degenerative changes and chronic appearing changes involving the lumbar spine.  The Veteran also reported that in 1984 (prior to service), he was in a motor vehicle accident in which his head hit the windshield and that he thought he remembered breaking a little vertebrae although his parents told him he had not.  The examiner recorded a diagnosis of DDD/degenerative disc disease of the low back or lumbar spine status post two microdisectomies and fusion at L5-S1.  

The examiner opined that it is less likely than not that a nexus could be established between the Veteran's low back condition and his active service due to the lack of medical documentation necessary to establish a nexus.  The examiner further explained that although he found the Veteran to be a credible historian with regard to having injured his back in service lifting heavy artillery shells and having been told that it was a strain, the Veteran recovered per his own history, he reported working physically demanding jobs over the years after service including working in a lumbar yard having to lift a lot of weight, and that he himself reported injuring his back in 2006 lifting a box of books helping his parents move, which incident was followed by multiple surgeries.  The examiner noted that there was no medical record of back problems until after the Veteran injured his back in 2006.  

As shown above, the examiner recorded a diagnosis of DDD/degenerative disc disease of the low back or lumbar spine status post two microdisectomies and fusion at L5-S1.  Therefore, the Board finds that the Veteran has a current low back disability.

Also, the Board concedes for purposes of this particular decision that the Veteran incurred a low back muscle strain in service after lifting a 205 pound artillery round.

With regard to whether there is an etiological link between the Veteran's current low back disability and his active service, in light of the above opinion of the March 2013 VA examiner, the Board finds that the preponderance of the evidence is against a finding that the Veteran's low back disability is related to his active service.  As explained above, the March 2013 VA examiner attributes the Veteran's low back disability to his post-service 2006 back injury, and the examiner provided a clear rationale for his conclusions.  As addressed further below, the Board notes that there is no probative medical opinion of record that contradicts the opinions of the March 2013 VA examiner (as the Board finds the opinions of Drs. E.D. and J.V. to be of no probative value due to their speculative nature, as explained below).

The Board acknowledges that a May 2009 VA treatment record reflects that the Veteran reported a history of injuring his back in service lifting a 200 pound round.  The Board notes, however, that the mere transcription of the Veteran's lay report of injuring his back in service does not transform his report into medical evidence.  See LeShore v. Brown, 8 Vet. App. 406 (1995); see also Board hearing transcript at 5 (Saudi Arabia, not Germany).

Regarding the August 2009 letter from Dr. E.D. of record, the physician noted that she had been the Veteran's PCP since 2006, and that the Veteran reported to her that he injured his back in service.  She opined that it was "entirely possible" that the injury was the "initial inciting event that has ultimately resulted in his current disability."  The Board finds that her opinion that it is "possible" that the Veteran's back condition is related to his reported in-service injury is merely speculative.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection).  Therefore, the probative value of her speculative opinion is by far outweighed by the well-reasoned opinion of the March 2013 VA examiner.  

Similarly, the Board acknowledges an August 2009 letter from Dr. J.V., who performed the Veteran's above-noted back surgeries, and who opined that "it is possible that his back injury could have been occurred while serving in Operation Desert Storm."  Again, however, the Board finds that such a speculative opinion is of no probative value and not sufficient upon which to establish a link to the Veteran's service.  See id.  Furthermore, the opinion offered no underlying rationale for the conclusion, and did not address the intercurrent events regarding the Veteran's back.  It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.  The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Here, it appears significant facts were left out of this private physician's analysis.

With regard to the lay statements submitted by the Veteran from friends, a former supervisor, and his current wife, all who came to know the Veteran several years after service, the Board notes that their lay observations many years after service do not serve to provide an etiological link to the Veteran's service.  With regard to the lay statement submitted by the Veteran's parents, while the Board acknowledges their account of watching the Veteran "progressively deteriorate in health" after returning home, the Board finds that, unfortunately, this lay statement does not serve to link the Veteran's current low back condition to his active service.

The Board also acknowledges the lay statements made by the Veteran, including his contention that his low back condition was incurred in service.  In that regard, the Board acknowledges that he is competent to report symptoms capable of lay observation, such as experiencing low back pain.  The Veteran is not, however, shown to in this case to have any medical education, training, or experience in order to render a competent medical opinion as to the etiology of his low back condition.  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).  Therefore, the Board finds the medical opinion of the March 2013 VA examiner to be by far more probative based on the VA examiner's medical credentials, and based on the clear rationale provided.  

Insofar as the Veteran's statements may be construed as asserting continuity of symptomatology since service, and with regard to the Veteran's assertion in his brief that he self-medicated for years prior to seeking medical treatment, the Board finds that the credibility of such assertions is diminished by the fact that, as noted above, the Veteran reported to the VA examiner that he was able to work for years as a corrections officer and that his back was "pretty good," that he subsequently was able to perform work lifting for a lumbar company for eight years, all without any record of complaint, and that he reported to his physical therapist and other clinicians that he injured his back in June 2006 helping his parents move, not in service.  See, e.g., Idaho Physical Therapy, December 2008; Dr. E.D., June 2006; Hands on Physical Therapy, October 2007.  Generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992).  Therefore, the Board finds that the Veteran's reports to treating clinicians that he injured his back in 2006 diminish the probative value of his contrary assertion in this case that he has experienced continuity of symptomatology, and that his low back condition is due to an injury in service.

In summary, the Board concludes that the preponderance of the evidence is against granting service connection for a low back disability.  The benefit-of-the-doubt rule is not for application, as there is not an approximate balance of evidence.  See 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a low back disability is denied.



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs