Citation Nr: 1337896 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-11 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served with a reserve component, which service included an initial active duty for training (ACDUTRA) period from May 1983 to October 1983. She served on active duty from November 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, the Board reopened and remanded a previously denied claim of service connection for a low back disability. In Board decisions dated September 2011, September 2012, and July 2013, the claim was remanded for further evidentiary development. As will be discussed below, review of the record now reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) most recently continued the previous denial in a July 2013 supplemental statement of the case (SSOC). FINDING OF FACT The Veteran's currently diagnosed low back disability, to include degenerative disc disease (DDD) of the lumbosacral spine, is not shown to have been manifested in service and is not otherwise attributable to active military service. CONCLUSION OF LAW The Veteran does not have a low back disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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 agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the current claim, letters dated in May 2004 and January 2009 notified the Veteran of the information and evidence needed to substantiate a claim of service connection. Specifically, she was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A March 2006 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist as to the claim on appeal, the RO obtained the Veteran's service treatment records (STRs), service personnel records, Social Security Administration (SSA) records, as well as VA and private treatment records in furtherance of her claim. The Board recognizes that the Veteran's STRs are incomplete in that some of her STRs from her period of active duty from November 1990 to September 1991 have been determined to be unavailable. See the Formal Finding of Unavailability dated October 2010. The Veteran has been repeatedly notified of this issue throughout the pendency of this appeal. To this end, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claim being decided herein, including efforts to obtain STRs that are apparently unavailable. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on VA's responsibility to obtain a veteran's service medical records. The Board finds, however, that in light of evidence that the records are unavailable there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. Additionally, a substantial number of the STRs are already associated with her claims file. In short, the Board has considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with said provisions. Pursuant to the Board Remand, a VA medical opinion was obtained in July 2013. As will be discussed below, the medical opinion reflects that the VA examiner thoroughly reviewed the Veteran's past medical history, documented her medical conditions, and rendered an opinion which appears to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the July 2013 VA medical opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from either disease or injury incurred or aggravated during active duty for training (ACDUTRA). With respect to time periods of inactive duty for training (INACDUTRA), service connection may only be granted for injury (and not disease) so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a "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. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic disease" became manifest to a degree of 10 percent within 1 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. 38 C.F.R. § 3.307. The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this matter, the Veteran asserts entitlement to service connection for a low back disability, which she contends is due to her military service. Specifically, she argues that she injured her back while putting up tents during Operation Desert Storm, which manifested in symptoms of back pain that have continued to this day. See, e.g., the statement of the Veteran's representative dated April 2006. For the reasons set forth below, the Board concludes that service connection is not warranted for the low back disability. As indicated above, the Veteran served ACDUTRA from May 1983 to October 1983. She then served on active duty from November 1990 to September 1991, which included service in Southwest Asia. Her STRs show that she was treated for complaints of back pains in June 1986, during a period of INACDUTRA. She was diagnosed with a mild lumbar strain at that time. There are no available STRs documenting an in-service injury in 1991. To this end, the Veteran's August 1991 active duty separation examination was absent any complaint or diagnosis of a low back disability. Additionally, in the August 1991 Report of Medical History, the Veteran indicated that she did not experience recurrent back pain. Post-service treatment records documented complaints of low back pain in May 1996, at which time the Veteran indicated the onset was at home that day with no injury recalled. Similarly, a VA treatment record dated May 1996 documented the Veteran's complaint of back pain for three days following heaving lifting and bending during a move one week prior; she was diagnosed with a paralumbar muscle strain. A diagnosis of chronic musculoskeletal low back pain was documented in September 1996. In an April 1998 private treatment record, it was reported that the Veteran complained of having chronic low back pain. The treatment provider then noted, She states she had an injury to her back in August 1997 that basically was work-related and had a worker's compensation settlement for that back in January 1998. She states she got off an elevator and slipped on a wet floor and injured her back. She states she went to a chiropractor, tried different medication, tried physical therapy, and also saw orthopaedics...She has not noticed any improvement. Private treatment records show that the Veteran was involved in a motor vehicle accident in March 2000 at which time she was noted to have "mid low back pian, status-post reported motor vehicle accident." Treatment records from the accident also noted a prior history of back pain, which was stable prior to the accident. See the report of Dr. M.M. dated March 2000. In a September 2000 treatment record, Dr. C.J. noted that magnetic resonance imaging (MRI) performed in June 2000 revealed disc bulge at L1-L2 and L3-L4 as well as focal mid-line posterior subligamentous disc herniation at L5-S1. In a letter dated in July 2002, Dr. A.C.P. reported, as to the Veteran: She also gives a history of chronic low back pain since 1998 when she slipped and fell at work. Initially, she was diagnosed with lumbosacral straining with treatment consisting then of physical therapy and medications that led to good results. She did fine until 2000 when she was involved in a motor vehicle accident. After the accident, she started complaining of lower back pain with evaluation at this point revealing a herniated disk along with two bulging disks. VA treatment records dated in March 2002 noted that the Veteran had chronic back and leg pain secondary to an accident two years prior. At a VA examination dated in October 2002, the examiner noted the diagnosis of DDD of L4-L5 with degenerative arthritis of the same area. A continuing diagnosis of DDD of the lumbosacral spine with two bulging disks in the lumbar spine and a herniated lumbar disc has been repeatedly documented in the Veteran's treatment records. See the VA treatment records dated July 2002, June 2004, and August 2007. In an undated statement received in October 2004, retired Sergeant Major J.L. indicated that he witnessed the Veteran's in-service injury in January 1991. Specifically, he stated that he "personally escorted [the Veteran] to the Troop Medical Clinic (TMC) after she injured her back in January [1991]." Sergeant Major J.L. explained that "[d]uring the process of loading our equipment, she was hurt with what we thought was a muscle strain. Her condition was irritated by her helping to erect tents." He indicated that he took the Veteran to the TMC where "[t]hey said that she had injured her spinal column and gave her pain killers and anti-inflammatory drugs so that she could return to duty." He continued, "[b]y the time we returned to Fort Stewart on or about the first of August, [the Veteran] was in almost constant pain from her back injury." In support of her claim, the Veteran has also submitted letters from Dr. A.H. dated in March 2004 and March 2005. In the March 2004 letter, Dr. A.H. reported that the Veteran is "under my medical care. I have diagnosed her as having...disc disease [a]ffecting her cervical and lumbar spine resulting in chronic back pain." Dr. A.H. continued, "[t]he tests that I have done do not indicate when these problems started or the etiology of her problems." However, Dr. A.H. explained, "I have reviewed a letter sent to Senator Graham by Sergeant Major J.L. regarding [the Veteran]. Based on this letter, I believe it is as likely as not that the above mentioned conditions are a result of her military experience." Similarly, in her March 2005 letter, Dr. A.H. described the statement of Sergeant Major J.L. describing the Veteran's in-service back injury. Dr. A.H. then stated, "[t]he information above establishes that these conditions were diagnosed while the Veteran was in the service. I believe it is as likely as not that her disc disease developed as a result of her military experience." Unfortunately, Dr. A.H. did not address the Veteran's intercurrent injuries (the 1998 work-place injury and the March 2000 motor vehicle accident) that are well documented in the records. Thus, although her opinions are favorable, they are afforded less probative value in that she did not recognize the back injuries that post-dated the Veteran's military service. The Veteran was afforded a VA examination in May 2009 at which time the examiner diagnosed the Veteran with a low back strain and determined, "[i]t is the opinion of this reviewer that the patient's low back strain is less likely a result of active duty. Patient was diagnosed with low back strain in 1986 and seen only once for it." The examiner continued, "[a]s noted in the claims file, patient was seen for back problems while in Saudi Arabia but there w[ere] no clinical records to confirm this and therefore cannot justify at the present time if the patient did have back problems while on active duty." The examiner concluded, "[i]t is the opinion of this reviewer that her back condition was not aggravated during any period of inactive duty. There is no documentation in the claims file to indicate [Veteran] had any further problems with her back after 1986." In the September 2011 remand decision, the Board determined the May 2009 VA examiner's opinion to be inadequate because it did not take into consideration the Veteran's lay statements concerning the continuity of her low back symptomatology dating from her military service. Accordingly, an addendum VA opinion was obtained in December 2011 at which time the examiner stated that he had "[r]eviewed the claims file with regards to [the Veteran's] back condition. Patient was seen in 1986 for low back strain. No indication that she had a back condition in 1983 and in 1990 to 1991." The reviewing physician continued, "[s]he was then noted to have chronic back problems in 1995, which is after she left the military." The examiner concluded, "[t]he claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness." In a September 2012 remand, the Board determined the December 2011 VA addendum to be inadequate because the examiner failed to mention the Veteran's service in the Persian Gulf and failed to mention the Veteran's credible lay statements concerning in-service injury. Accordingly, another VA medical opinion was obtained in October 2012, at which time the examiner concluded that "[i]t would be only resort[ing] to mere speculation to opine whether or not the Veteran's back condition was caused or aggravated to any degree by any of the back injuries documented (or stated to have occurred) during her military service or otherwise caused or aggravated to any degree by her military service." In a July 2013 remand , the Board found that another addendum was required in order to sufficiently address the Veteran's assertions of in-service injuries including the documented June 198[6] back injury as well as the corroborated injury she sustained in the Persian Gulf in January 1991. Thus, a VA opinion was obtained in July 2013 at which time the examiner similarly concluded, "[i]t would be only resort[ing] to mere speculation to opine whether or not the Veteran's back condition was caused or aggravated to any degree by any of the back injuries documented (or stated to have occurred) during her military service or otherwise caused or aggravated to any degree by her military service." The examiner explained: Although the SMR is silent for back injuries, treatment or diagnoses, the Veteran's own statements and lay statements regarding the occurrence of back injuries during her military service are duly noted and accepted as factual as directed...In addition, a visit [of] the service member to the Orlando Naval Hospital for treatment of back pain June 5, 1986 is noted. And there is a documented strain in June 1989 as well as statements corroborating a back injury in January 1991. However, the separation examination dated August 5, 1991 following theses injuries is silent for any back injuries, on-going symptoms, treatments or diagnoses; and the Veteran checked no to any back problems on that physical. The July 2013 reviewer continued: Therefore, there is no current objective evidence that the Veteran's documented/reported back injuries occurring during her military service were more than acute and transitory events or that they could have caused or aggravated to any degree her current back condition...There is no current objective evidence that the Veteran's current back condition...was caused or aggravated to any degree by her military service. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is entitled to less weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 295. A medical opinion, however, based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). The Court has provided guidance as to when VA can accept an examiner's statement that an opinion cannot be provided without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Specifically, the Court held that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation why, was inadequate. In Jones, the Court examined "how thoroughly . . . an examiner [must] . . . explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered 'without resort to mere speculation.'" In its ruling, the Court stated that an examination report "should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge . . . or that the actual cause cannot be selected from multiple potential causes." Id at 390. Here, although the July 2013 VA examiner indicated that he could not provide a conclusion as to medical nexus because "[i]t would be only resort[ing] to mere speculation to opine whether or not the Veteran's back condition was caused or aggravated to any degree by any of the back injuries documented (or stated to have occurred) during her military service or otherwise caused or aggravated to any degree by her military service," he went on to explain the rationale behind this determination. As indicated above, the examiner described the inconsistencies in the Veteran's self-report of continuing low back symptomatology. In this case, the Board finds that the July 2013 VA examiner's conclusion that it would be speculation to say that the Veteran's low back disability was caused or aggravated by her military service is sufficiently supported by an explanation. See Jones, supra. Moreover, neither the Veteran nor her representative has produced a medical opinion to contradict the conclusions of the July 2013 VA examiner. As noted above, the favorable March 2004 and March 2005 opinions from Dr. A.H. in support of medical nexus are of little to no probative value because she failed to address the Veteran's documented back injuries that post-dated her military service. As indicated above, the Veteran has submitted lay statements to support her claim of service connection. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). Neither the Veteran nor her representative nor fellow soldier, however, is competent to provide medical conclusions as to whether a disability is due to her military service. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that the Veteran and her representative are now claiming that the Veteran's low back disability is the result of her military service, neither is competent to comment as to the etiology of the claimed disorder here as the relationship goes beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered that lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence. Additionally, the Board recognizes that as with "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). There is, however, no evidence that the Veteran was diagnosed as having arthritis of the lumbosacral spine during her military service or for years thereafter. C.f., Walker, 708 F.3d at 1331. Crucially, the Veteran's statements of continuous back pain since service lack persuasiveness as these statements are inconsistent with other evidence of record, including her Reports of Medical History throughout service and at separation that expressly denied a history of recurrent back pain. Moreover, as noted above, private treatment records showed an onset of back pain in May 1996 that began "today [at] home" and the Veteran could not recall any specific injury. Also, as described above, private treatment records repeatedly documented the onset of the Veteran's chronic low back pain as 1997 or 1998 following a workplace injury, which was aggravated by the March 2000 motor vehicle accident. This evidence is inconsistent with her more recent reports of continuous pain since service. Therefore, the Board finds that the Veteran's statements of continuous symptoms are not credible, as they are contradicted by evidence made when seeking treatment, which the Board finds inherently more credible. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the evidence, including the post-service medical evidence, the July 2013 VA medical opinion, the positive opinions by Dr. A.H., and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. Even if she experienced injury in service as she claimed, there was no problem with her back in August 1991 and she in fact indicated that she had not had recurring back pain. That any problem or injury in service was acute and transitory is therefore consistent with the record and the conclusion of the VA reviewer. In conclusion, the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs