Citation Nr: 1338615 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-03 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to service-connected residuals of a right femur fracture. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from December 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, service connection for a low back disorder. In February 2013, the Veteran testified at a Videoconference hearing before the undersigned Acting Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. The Veteran's claim was remanded in May 2013 for further development. The requested action was taken and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). As noted in the Introduction section of the May 2013 Board remand, the issue of entitlement to service connection for a right knee disorder, to include as secondary to the right femur fracture has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ again for any appropriate action. FINDING OF FACT A low back disability was not first manifested on active duty service nor was arthritis shown within the first post-service year; the preponderance of the evidence is against finding that a low back disability is related to active service or due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection of a low back disorder are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). A June 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Pursuant to the Board's May 2013 remand directive, the Appeals Management Center attempted to obtain additional records from the Washington State Department of Labor and Industries (for Workers' Compensation records) and Enumclaw Medical Center dated between 1990 to 2007. In a June 2013 notice, the Veteran was requested to complete the releases to obtain these outstanding records. The requested Enumclaw Medical Center records were associated with the claims file. Despite the June 2013 request to do so, the Veteran did not submit the required releases to obtain records from the Washington State Department of Labor and Industries. In other words, the Veteran has not, despite a request to do so, supplied VA with properly executed releases to permit any inquiry of these records for complete, potentially relevant and helpful records. The VA's duty to assist is therefore met; VA is required to make reasonable efforts only to obtain private records, and the Veteran's failure to supply complete information regarding his treatment or appropriate releases has rendered any further efforts unreasonable. 38 C.F.R. § 3.159(c)(1)(i) and (ii). The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). In October 2013, the Veteran was afforded a VA examination of the low back. The examiner performed an examination, considered the relevant evidence following review of the claims file, and offered requested medical opinions with supporting rationales when necessary. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The October 2013 examination is therefore adequate for adjudication purposes. Given the October 2103 VA examination and report and the subsequent readjudication of the claim and receipt of the Enumclaw Medical Center records, the Board finds that there has been substantial compliance with its May 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 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). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background and Analysis The Veteran contends that his low back disorder was caused by or aggravated by his service-connected residuals of a right femur fracture. A review of the Veteran's service treatment records shows no treatment for complaints of low back problems. These records show treatment for the right femur fracture and his complaints of right leg and hip pain. Discharge physical examination, dated in March 1983, shows no history of low back problems or a current low back disorder. In the Veteran's own report of medical history dated that same month, the Veteran specifically denied any recurrent back pain. There were no treatment records in the first post-service year showing any arthritis of the low back. His treatment and examinations were limited to the right leg and hip. During these examinations, he did not report any problems with his back. The Veteran sought private treatment in July 1990 following a lifting injury. He indicated that he was loading ceramic pallets into the back of a pickup truck and he injured his back. X-rays of the spine were negative. The assessment was lumbosacral strain versus disc disease. Following further examination, there was a notation of slight bulging disc at L4-5, but without any significant pathology. At the time of this treatment, the Veteran did not report any in-service injury to the spine. It appears that he was first noted as having mild degenerative joint disease of the lumbar spine in 2004. He sought VA treatment for increasing low back pain in early-2007. In a February 2007 VA treatment note, the treating professional noted that the Veteran has a history of a femur injury on the right that caused some gait problems. In September 2007, the Veteran was in a rollover accident in his ATV. He denied any neck or back pain, and denied having problems before that. In an October 2007 VA treatment note, the Veteran reported that he was out of work from the school district in which he worked due to a back injury. In his January 2008 Notice of Disagreement, the Veteran reported that he was injured on the job and due to his back disability he was "forced to quit a job." He indicated that he was told that his back problems are preexisting and caused by his bad hip. The Veteran sought VA treatment for increasing back problems in 2008. It was noted that he is being seen by workers' compensation professionals regarding his back . The treating professional also noted that the Veteran incurred a 2007 back injury. During his February 2013 Board hearing, the Veteran testified that he believed he fell at work due to his right leg weakness. He advised that he was rolling up wrestling mats at work and it aggravated his back to the point where he could not return to work. He claims that the Washington State Liabilities and Industries Department cut him off because they said his injury was service related. Again, the Board notes that the Veteran did not provide the appropriate releases to retrieve these records. The Veteran testified that he has fallen due to his right leg giving out and this has contributed to his back pain. He stated that he first recalled falling in 1986. The Veteran was afforded a VA examination in October 2013 during which he was diagnosed as having lumbosacral spondylosis. He reported that he injured his low back in service during the same incident that cased his right leg fracture. He reported that he reinjured his low back when he worked as a printer and had to perform large amounts of lifting and standing. Noted was a history of working as a custodian that caused repetitive injuries to his low back. Following review of the entire claims file, the examiner opined: The Veteran's low back disorder is less likely than not caused by or is aggravated by his service-connected residuals, right femur fracture. The Veteran's gait has been observed today and in previous C&P exams as normal with normal leg lengths, thus not causing any alteration to normal spine alignment. Per C-file C&P exam 3/1986 reported "normal gait and lower extremities are equal length." Per C-file C&P exam 10/2007 reported "leg length during exam: 88 cm bilaterally. Feet show no sign of abnormal weight bearing." It is more likely that the Veteran's low back disorder is related to, in part by several injuries: Per C-file 7/1990 the Veteran injured his low back loading ceramic pallets into the back of a pick-up truck. Per C-file 2/2007 the Veteran had an L&I claim for low back pain following injury to his low back "when rolling (2) wrestling mats" while working as a custodian in an elementary school. Per C-file in 4/2009 the Veteran had a low back sprain following a motor vehicle accident in which he was rear-ended. And the Veteran has worked many years as a custodian which is a physically demanding job which requires a large amount of lifting. There is no clinical opinion to the contrary. There is no question that the Veteran current has a low back disorder, variously diagnosed as degenerative disc disease, degenerative joint disease, and spondylosis. The main question before the Board is whether the Veteran's back disorder is presumptively related to service, directly related to service, or secondary to a service-connected disability. For the reasons explained below, the Board finds that it is not. The Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disorder on any basis. The 2013 examiner reviewed the history and determined that the Veteran's low back disorder not caused or aggravated by his service-connected residuals of a right femur fracture. Medical records failed to show any correlation between the low back disorder and his service-connected right leg disorder. Moreover, the record is replete with evidence showing post-service injuries to the spine that have not been clinically attributed to his right leg disorder. The October 2013 examiner specifically noted that the Veteran has a history of equal leg lengths and no altered gait. The Board finds this opinion to be highly probative evidence. It was rendered on the basis of the Veteran's history, as gleaned from the private and VA treatment records and interview and examination of the Veteran. It is well-reasoned, and is not contradicted by the competent evidence of record. The Veteran is competent to report that he injured his low back in-service, but the Board finds such statements lack credibility. Importantly, he has never requested service connection for his back disorder on a direct basis and only reported an in-service injury to his back during the October 2013 VA examination. If the Veteran had indeed sustained some sort of injury to the back during service, it would be reasonable that he would have reported in some respect, whether during service, his Board hearing, VA treatment, private treatment, or otherwise, prior to his 2013 examination. The Board finds that to the extent that the Veteran is claiming direct service connection, the criteria to warrant a VA examination for direct service connection have not been met and the Veteran is not prejudiced by the Board reaching a decision here. 38 C.F.R. § 3.159(c)(4). Specifically, there is no credible evidence of an event, injury, or disease in service upon which a current disability may be based. Ultimately, there is no competent or credible evidence showing a link between the Veteran's current back disorder and his military service. Service connection for a low back disorder is also not warranted on a presumptive basis. There is no clinical evidence showing any diagnosis during the first post-service year. The earliest x-ray of the lumbar spine was performed in 1990, more than one year following service, and did not show arthritis. Accordingly, service connection on a direct or presumptive basis is not warranted. Service connection as secondary to residuals of a right femur fracture must also be denied. The fact that the Veteran had numerous back injuries and a career of physical labor is strong evidence against a causative relationship. Moreover, the October 2013 VA examination offering an opinion found that the Veteran's gait was normal, leg lengths were normal, and therefore, his low back disability could not have been caused or aggravated by his service-connected right leg disorder. The examiner also noted multiple, documented post-service injuries to the low back through the course of his employment or as a result of accidents. By contrast, the sole evidence of a relationship of any kind between the low back disorder and residuals of a femur fracture is the opinion of the Veteran himself. As a layperson, the Veteran lacks the necessary medical training and knowledge to render a competent etiology opinion in this case; it is not a matter of an observable cause and effect. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not repeating the information a doctor gave to him, which he is competent to do. He is instead indicating that an altered gait and not the numerous post-service injuries, some of which he may have received workers' compensation benefits for, caused his current low back disorder. The sole competent medical opinion of record is entirely negative, and definitively states that there is no relationship between the Veteran's low back disorder and the service-connected residuals of a right femur fracture. The weight of the evidence is against the claim; there is no doubt to be resolved. Service connection for a low back disorder is not warranted. ORDER Service connection for a low back disorder is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs