Citation Nr: 1338285 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-11 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In December 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In October 2009 and March 2011, the Board remanded the case for additional development. The Board finds that the Appeals Management Center (AMC) has complied with the remand instructions, and that neither the Veteran nor his representative has contended otherwise; therefore, it may proceed with its review of this appeal. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDING OF FACT A back disability did not begin in service or within a year of separation from service and is not attributable to the Veteran's military service. CONCLUSION OF LAW The Veteran does not have a 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, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3,159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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 and 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 (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional letter dated in June 2005 complied with VA's duty to notify the Veteran with regards to the service connection issue addressed herein. Specifically, this correspondence apprised the Veteran 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. In addition, a March 2006 letter 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), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the totality of the required notice was not provided until after the Veteran's claim was initially adjudicated, the claim was subsequently re-adjudicated in a March 2008 statement of the case, thereby correcting any defect in the timing of the notice. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA has obtained service treatment and personnel records, private treatment records, VA treatment records, and records from the Social Security Administration (SSA). The Veteran underwent VA examinations in November 2007 and January 2010 (with March 2012 addendum). In that regard, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran complains that he was not examined prior to the March 2012 addendum. The Board notes, however, that the March 2011 Remand Order instructed the AMC to obtain an addendum opinion from the January 2010 examiner. The record does not reflect that either the 2010 or the 2012 opinion is inadequate. As discussed below, the VA opinions obtained in this case are predicated on consideration of service records, post-service private records, and SSA records and provide a rationale for the conclusion that the Veteran's back disability is not related to his service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. See 38 C.F.R. § 3.159(c)(4). In addition, there was substantial compliance with the October 2009 and March 2011 remand directives. Specifically, the Board directed the AOJ to obtain additional relevant private treatment records and complete service and personnel records. In a November 2009 letter, the AMC requested names, addresses, and dates of treatment of all VA and private healthcare providers. A follow-up letter was sent in January 2010. No response was received. In a March 2011 letter, the AMC requested treatment records from Dr. Sterneberg and Good Samaritan Hospital. The Veteran subsequently provided releases for St. Elizabeth Physicians (formerly Summit Medical Group), St. Elizabeth Medical Center, Good Samaritan Hospital, Deaconess Hospital, and Providence Hospital. The AMC obtained additional treatment records from St. Elizabeth Medical Center and St. Elizabeth Physicians. The Board notes that Dr. Sterneberg was associated with the Summit Medical Group. Negative responses were received from Deaconess Hospital, Providence Hospital, and Good Samaritan Hospital. In addition, as instructed, an adequate VA medical opinion was obtained in January 2010 (with March 2012 addendum). Finally, the AMC obtained the Veteran's personnel file and clinical records from the 3rd Field Hospital in Saigon from June 1968 where the Veteran was initially treated after a jeep accident. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duties to notify and assist have been met. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303(b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, 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). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection can be granted for certain diseases, including arthritis, if manifest to a compensable degree within one year of separation from active service. Such disease shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking service connection for DDD of the lumbar spine. He contends that he injured his back when a jeep he was working on fell on him in 1968. He maintains that he was working on a jeep that was "jacked up" by the use of large water cans. The water cans collapsed, trapping his left arm and upper body. The Veteran submitted his initial claim for VA disability compensation benefits in February 1969. He claimed residuals of a left wrist fracture in service and hearing loss. He did not make any reference to a back injury in service. He was afforded a VA examination in July 1969 where orthopedic complaints relative to his left wrist were thoroughly examined. Again, he made no mention of any type of back pain or problems at that time. (The Board notes that the Veteran is service connected for residuals of fractured left radius and ulna.) The Veteran submitted his claim for service connection for DDD of the lumbar spine in April 2005, approximately 36 years after service. He also submitted a newspaper article concerning treatment for back injuries. Service treatment records (STRs) reflect that in June 1968, the Veteran fractured his left wrist after a jeep he was working on fell on him. The clinical records contain no notations of back pain or a diagnosed back injury. The January 1969 separation examination revealed a clinically normal spine. The Veteran reported no problems with his back on the accompanying medical history report. SSA records show that the Veteran was found to be disabled due to degenerative and traumatic degenerative joint disease (DJD) of the lumbar spine. The records document treatment provided to the Veteran dating back to 1977. There is no mention in any of the records of a crushing-type injury to the chest or back during the Veteran's military service. The first notation of back pain is contained in a report dated March 10, 1977 by R.M.R., M.D., which reflects that the Veteran complained of pain in his left lower back and left hip that had been present over the previous two weeks. He reported a similar episode about three months earlier that lasted for 3-4 days. The Veteran was seen again on March 21, 1977 with complaints of back pain. On May 9, 1977, Dr. R.M.R. noted that the Veteran had been hospitalized at Good Samaritan Hospital in April 1977 with a complaint of back pain. A lumbar myelogram showed a disc defect at the left L4-L5 interspace. In May 1977, the Veteran underwent a lumbar laminectomy, L4-L5, left side, with excision of herniated disc. A lumbar myelogram in January 1984 was interpreted to show a probable herniated nucleus pulposis of L4-L5 with a definite lateral disc component. In January 1984, the Veteran underwent reopening of laminectomy, L4-L5, left side with excision of recurrent ruptured disc. In June 1986, the Veteran was treated for low back pain that he associated with "much lifting and bending" the past weekend. An April 1994 SSA examination report indicates that the Veteran had an onset of low back pain in 1977 unassociated with prior trauma or injury. There was no reference to any type of back injury during the Veteran's service. In an April 2005 letter, Dr. Sterneberg (a family practice physician) diagnosed significant DDD. He referenced two spinal surgeries, one in January 1977 and the second in January 1984. Dr. Sterneberg stated that the Veteran had "a significant jeep accident in 1968 while serving in Vietnam." He stated that the Veteran suffered "a crushing type injury to his arm, chest, and low back." He opined that "a significant injury like that can be the precipitant for DDD later in life." A June 2005 VA wrist examination shows that after being discharged, the Veteran worked for Monsanto until 1989 "when he retired with a back disability." In a July 2005 statement, the Veteran noted that while stationed in Vietnam he sometimes had to run and/or dive for cover. He stated that the terrain was hazardous and that this resulted in "missteps." He also stated that he experienced jarring of his back during helicopter rides. See July 2005 VA Form 21-4138. In a November 2005 lay statement, D. Decker stated that he was stationed with the Veteran when the jeep accident occurred. He said the Veteran was trapped from the waist up after the water cans collapsed. The only injury he noted was the Veteran's left wrist. He stated that the Veteran spent two days in the hospital for treatment. In a July 2006 letter, Dr. Sterneberg stated that the Veteran "sustained a major traumatic injury in 1968 when a military jeep fell on him." Specifically, he stated that the Veteran received "waist and up trauma to his body." He noted that the Veteran had a diagnosis of degenerative arthritis of the spine including the low back area. He opined that the Veteran's symptoms "can arise from trauma years before." The doctor stated that the jeep accident was the only major trauma that the Veteran had sustained. He concluded that the Veteran's symptoms "may not have been noticeable for 8-10 years." Also of record are September 2007 lay statements from the Veteran's mother and a friend. These statements appear to recount the history of the in-service jeep accident as told to them by the Veteran. In November 2007, the Veteran was afforded a VA spine examination. He complained of constant, achy, often sharp, low back pain at L4-5 that flares up every 1-2 months, lasting for 3-7 days. The Veteran reported that the onset of his back problem occurred in 1977 while working at Monsanto when he used a dolly to move a 250-pound drum of chemicals. He reportedly underwent a laminectomy of vertebrae L4-5 in 1977 (noted as 2007) and a repeat laminectomy in 1984. The examiner diagnosed DDD of the lumbar spine. In regard to whether the Veteran's disability was related to his active military service, the examiner responded, "I cannot resolve this issue without resort to mere speculation." He wrote: "Problem arose 9 years post military service while patient was doing strenuous physical labor at Monsanto." During the December 2008 hearing, the Veteran testified that he was hospitalized for 2-3 days after the jeep accident. Hearing Transcript at 4. He could not recall having any back pain after the accident, at least "[n]othing more than what I felt going through basic training or while in Germany working on vehicles." Id. at 10. He implied that his memory of the incident was hazy because of the pain medication he received. He stated that he worked for Monsanto after discharge and that the biggest thing he moved was drums that weighed approximately 350 pounds, but that he used a dolly or a cart to move the drums. The Veteran then gave the following testimony: Q: Okay, so you didn't have any type of back injuries while working... A: No. Q: ...at your civilian job... A: No. Q: ...at the chemical company? A: That's just the one day or, well, I was on the nightshift and worked that night running the vat. I went to get ready to leave and I couldn't get out of the chair. They had to help me out of the chair. That's when they discovered that a disc is, I guess, dislocated or blown disc they called it and discovered I had degeneration of the spine. That was in '77. Id. at 5-6. The Veteran testified that Dr. Sterneberg had been his family physician for 25 years and "had all of my records transferred to him from the other physicians that I had been seeing over the years." Id. at 8. The Veteran submitted to a second VA spine examination in January 2010 with a board certified neurologist. He reported that his back first bothered him in 1977, at which time he was diagnosed with degeneration of the spine. The examiner reviewed the claims file and indicated that the Veteran had "clearly" injured his back in 1977 after lifting 250-pound chemical vats, and that he had filed both a private disability claim and a social security claim in connection with that injury. She opined that his current back disability "was not caused by or a result of" the in-service jeep accident. She reasoned that there was no way to link a left wrist or forearm fracture and the later development of lumbosacral DDD. The examiner further opined that "[i]t is not within the normal bounds of medical pathophysiology to develop back pain so many years after an injury." She noted that the Veteran "would at least have had some symptoms at the time of the injury." In a correspondence dated in February 2011, the Veteran indicated that his job at Monsanto involved using a tow motor or drum dolly to move the vats. He wrote: "I operated a vat (kettle) which held 10,000 pounds of additives that were pumped into the vat. The additives were dispersed in small amounts into 20-25 pound buckets which I then lifted into the vat." The AMC requested an addendum from the January 2010 VA examiner after determining that her opinion was based on inaccurate factual information. Specifically, the AMC noted that the claims file did not support a finding that the Veteran injured his back in 1977 as a result of lifting 250-pound vats of chemicals. In March 2012, the VA examiner thoroughly reviewed the paper and electronic claims file and summarized the medical evidence. She opined "it is less likely than not" that the Veteran's DDD was caused by or a result of any incident in service. She acknowledged the Veteran's claim that he used a dolly to move vats of chemicals while working at Monsanto, but wrote: "What I did not make a mistake on is that the veteran had no back condition or injury of any type prior to 1977 and that he gave as a stated history in a previous VA compensation and pension examination in November 2007 that his back condition had started in 1977 while he was working on that job and had gotten progressively worse since that time." She noted that the Veteran's reported history of the jeep accident "seems to have increased over time from being that his upper body was trapped to stating that he sustained a crushing injury to the chest to stating that he sustained a crushing injury to the chest and low back." The examiner also noted that neither the clinical records nor the buddy statement support the Veteran's description of the injury. The examiner considered the Veteran's report of running for cover and jarring helicopter rides and explained that "[n]either of these would have led to the biomechanical force need[ed] to cause lumbosacral degenerative disc disease." Furthermore, the examiner noted that the Veteran gave no such history when he first sought treatment for back pain in 1977. She concluded "[t]here is simply no credible medical evidence" to link either the Veteran's remote jeep accident or his other theories to DDD that required surgery eight years after discharge. She explained that the more likely etiology is the heavy lifting (aside from chemical vats) the Veteran was required to do at Monsanto or some other post-service injury. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the opinion rendered by the VA physician in January 2010 (with March 2012 addendum), indicating that the Veteran's DDD is unrelated to service, to be the most probative and persuasive medical opinion evidence of record. The Board finds compelling the fact that the VA examiner had full access to the Veteran's medical history, to include clinical records from the field hospital where the Veteran was first treated following the jeep accident. The examiner's findings were based on a thorough and detailed examination of the Veteran and the claims folder and supported by an adequate and persuasive rationale. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the veteran's history, and the thoroughness and detail of the opinion). Additionally, the Board considers it significant that the VA examiner's opinion constitutes the most recent medical evidence of record and was requested specifically to address the issue on appeal. Moreover, the January 2010 VA opinion (with March 2012 addendum) is consistent with the other competent clinical evidence, to include the service records and November 2007 VA examination report. In contrast, the Board finds that the private provider's opinion linking the Veteran's DDD of the lumbar spine to his active service is entitled to less probative weight. First, Dr. Sterneberg's opinion is equivocal. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Second, it appears that Dr. Sterneberg did not have access to the Veteran's STRs. The Board acknowledges that claims file review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not conduct such a review. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran contends that Dr. Sterneberg was familiar with his post-service medical history since he was the Veteran's treating physician for a number of years. However, the private provider did not indicate any familiarity with the Veteran's pertinent in-service clinical history. In fact, it is quite clear that Dr. Sterneberg did not review the clinical records from the field hospital where the Veteran was first treated after the jeep accident since those records were not associated with the claims file until April 2011 - well after the doctor submitted his April 2005 and June 2006 letters. On the contrary, he appears to have based his assessment entirely on the Veteran's unsubstantiated statements with respect to the 1968 jeep accident. A medical opinion premised upon an unsubstantiated account of a claimant is of negligible probative value. Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Finally, the doctor did not explain the significance, if any, of the Veteran's post-service occupational injury as a civilian. For all of these reasons, the private medical opinion is entitled to less probative weight. Moreover, the Veteran did not seek treatment for any back problems until 1977, eight years after his separation from service. Normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333(Fed. Cir. 2000). Thus, service connection for any arthritis of the lumbar spine is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges the Veteran's belief that his DDD of the lumbar spine is related to his military service. However, there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Veteran's own assertions as to etiology of a disability have no probative value. Under these circumstances, the Board concludes that the claim for service connection for DDD of the lumbar spine must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a disability of the low back is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs