Citation Nr: 1338809 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-04 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty for more than 20 years, prior to his retirement in June 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a lumbar spine disability. This appeal was previously before the Board and the Board remanded the claim in January 2010, February 2012, and November 2012 for additional development. The case has been returned to the Board for further appellate consideration. In June 2013, the Board requested a review of the claims file and an opinion by a Veterans Health Administration (VHA) neurosurgeon. In July 2013, a VHA medical expert opinion was provided. In July 2013, the Veteran and his representative were provided with a copy of the VHA opinion and were advised that the Veteran had 60 days to review it and submit additional evidence in connection with his claim. In response, the Veteran's representative submitted written argument in October 2013, which has been considered in this appeal. FINDING OF FACT The preponderance of the competent and credible evidence indicates that the Veteran's current lumbar spine disability is not related to service, including the lumbar spine complaints noted therein. CONCLUSION OF LAW The criteria for establishing service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a May 2004 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A February 2012 letter advised the Veteran concerning establishment of the disability rating and effective date elements of his claim. The claim was subsequently readjudicated in April 2012 and May 2013 supplemental statements of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the reports of VA examinations, some of the Veteran's service personnel records, private treatment reports, and statements from the Veteran. In addition, the Board also notes that actions requested in the prior remands have been undertaken. In this regard, the Veteran was asked to identify treatment providers, private treatment records were requested. The Board remanded the claim to obtain additional treatment records and a nexus opinion. Ultimately an adequate VHA opinion was obtained in July 2013. Accordingly, the Board finds that the remand directives have been substantially complied with, and no further action is required. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by responding to notices, reporting for VA examinations, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In written statements, the Veteran contends that his current lumbar spine condition began during active service and has progressively worsened since that time. He has reported that he experienced symptoms referable to the lumbar spine during active service which continued until the time he sought post-service treatment for such in 1999. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disability. Although the Veteran has a current diagnosis of a lumbar spine disability, the most probative evidence indicates that such disability is not the result of active service or the complaints noted therein. The Board noted that the service treatment records disclose that in March 1968 the Veteran sought treatment for back pain. Upon physical examination, straight leg raising was greater than 90 degrees, there was no spasm, and the Veteran had full range of motion. The Veteran also indicated he had low back pain on a report of medical history during his retirement examination in June 1988. He said that he had such pain especially in the a.m. and on arising, and that the onset had been "years." Upon physical examination at that time, no abnormalities were noted with regards to the spine. A private neurological consultation in September 1999 noted that the Veteran experienced the onset of posterior neck pain radiating to his left shoulder in December 1998. A private neurological evaluation in December 1999 noted that, five weeks ago, while undergoing physical therapy for his neck, he experienced low back discomfort. He denied any prior history of back discomfort. A December 1999 lumbar spine magnetic resonance imaging (MRI) found central canal stenosis secondary to facet hypertrophy at L4-L5. The Veteran was afforded VA examinations in June 2004 and again in February 2005. The diagnoses following the latter examination included osteoarthritis and degenerative disc disease of the lumbosacral spine. In April 2005, the physician who conducted the February 2005 examination reviewed the record. With respect to the low back, he noted the Veteran complained once in March 1968 of low back pain, again on the retirement examination, and again in December 1999. He was unable to resolve the issue regarding the etiology of the Veteran's low back disability without resorting to speculation. He did not provide an explanation as to why no opinion could be formulated. In a November 2006 letter, a private chiropractor noted he had been treating the Veteran since the previous month. As pertinent here, he stated X-rays of L2-L3 and L5-S1 revealed a late phase 1/early phase 2 stage of subluxation degeneration. He stated that this phase of degeneration typically takes 20 to 40 years to manifest. He commented that the other areas of the lumbar spine being within normal limits indicated it was possible an old trauma to these areas might have started the process at that time. A June 2008 private lumbar spine MRI found moderate to severe spinal stenosis at L4-L5 caused by facet hypertrophy and hypertrophy of the ligamentum flavum; and moderate compromise of the lateral recesses from L3 to S1 levels caused by facet hypertrophy. The Veteran was provided a VA examination by a neurologist in March 2010. The Board notes that while the VA examiner observed that the Veteran had reported low back pain during his military retirement examination, the examiner also stated that there was no record of treatment for low back pain in the military. The examiner stated that there is no evidence of an ongoing persistent problem in the low back extending through military service. The opinion of the examiner was that based on review of military treatment records and post-military treatment for lumbar stenosis beginning in 1999, it is less likely than not that this condition existed while the Veteran was in the military service, was triggered by events of military service, or was present in the presumptive period or the immediate years following military service. Thus, the Board noted in February 2012 remand, the March 2010 VA examiner failed to consider the March 1968 entry in service treatment records, and therefore, remand of the claim for an addendum was necessary. Pursuant to the Board's February 2012 remand, an addendum opinion was provided by another neurologist in February 2012. While the reviewing neurologist indicated that the Veteran's claims file was reviewed and opined that the Veteran's claimed lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, the Board observes that he also failed to address the March 1968 entry in the service treatment records documenting an in-service complaint of back pain. The Board notes that the opining neurologist discussed a March 1986 entry documenting the Veteran's complaints of neck and upper back pain, assessed as cervical strain, and may have mistakenly confused such treatment record with the March 1968 treatment record pertaining to back pain which was the subject of the Board's February 2012 remand instructions. Accordingly, the Board again remanded the claim in November 2012 for another addendum opinion. In November 2012 and March 2013 addenda, the examiner stated that there was no reason to change his original opinion. As an opinion with adequate rationale regarding the cause of the Veteran's current lumbar spine disability was not yet rendered, the Board obtained an opinion in July 2013 by a VHA neurosurgeon. After a review of the Veteran's claims file and recitation of the pertinent medical evidence, the neurosurgeon stated that the Veteran's degenerative spinal disease is a chronic phenomenon which occurs very slowly and most of the time it is not clearly associated with causatory physical events. He also noted that the Veteran complained of episodic axial low back pain with no associated neurological deficit in service. He stated this type of low back pain is a very frequent complaint in the general population, starting often at a very young age which is not necessarily related to a uniform progression to severe and symptomatic spinal stenosis. The neurosurgeon stated that the only comment he could make related to the Veteran's current lumbar spine condition is that it is a slow degenerative process which may take decades to develop to the intensity reported in the 2008 MRI study. He concluded that it is less likely that the Veteran's in-service spinal pathology correlated with his symptoms 20 or 30 years later. As this opinion was based upon a review of the claims file, considered the Veteran's history including his in-service complaints, and provided an adequate rationale for the conclusion reached, the opinion is afforded great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges the private chiropractor's November 2006 statement that it was possible an old trauma to the Veteran's lumbar spine 20 to 40 years ago caused his current lumbar spine degeneration. However, he noted only that it was "possible." Hence, the opinion is speculative and of little probative value. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that 'it is possible' and 'it is within the realm of medical possibility' too speculative to establish medical nexus). The Board notes that the Veteran is competent to report that he has experienced symptoms pertaining to the lumbar spine since active service. Thus, the Board finds that the Veteran's contentions made in connection with the current claim that he has experienced symptoms of a lumbar spine condition since service, specifically the private neurological records from 1999 discussed above, are inconsistent with the contemporaneous evidence, including the treatment records during and subsequent to service and are not persuasive when considered in light of the record as a whole. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (the lack of contemporaneous medical records, bias in lay evidence, and conflicting statements of the veteran may be facts that the Board can consider and weigh against a veteran's lay evidence). Additionally, while the Veteran contends that his current lumbar spine condition is related to service, he is not, as a lay person, qualified to render a medical opinion concerning the etiology of his lumbar pain. In this regard, lumbar spine disabilities require objective medical testing to diagnose and medical expertise is required to establish the etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Further, whether any symptoms he experienced in service or following service are in any way related to his current lumbar spine disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The most probative medical opinion of record fails to link any current lumbar spine disability to active service, including the complaints documented therein. The Board finds the July 2013 VA neurosurgeon's opinion to be more probative than the November 2006 chiropractor's statement and the Veteran's lay assertions as to the onset and etiology of his current lumbar spine condition. Moreover, while the Veteran has been diagnosed with a degenerative condition of the lumbar spine, there is no objective evidence of record reflecting that the Veteran suffered from arthritis within one year from the date of termination of active service; thus, service connection on a presumptive basis is not warranted. In summary, while there is evidence of a current lumbar spine condition, the most probative evidence of record does not establish the existence of this disability during the Veteran's active service or for approximately 10 years thereafter, or that his current lumbar spine condition is related to the Veteran's military service, to include the complaints noted therein. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs