Citation Nr: 1339740	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  09-14 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a lumbar spine disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to August 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2010, the Veteran testified before the undersigned at a hearing at the RO.  A copy of the hearing transcript (Tr.) has been associated with the claims file.

In July 2011, the Board reopened the Veteran's lumbar spine disorder claim, which had been previously denied in an April 2002 rating decision that had become final.  The Board then remanded that reopened claim for additional evidentiary development.  As discussed in further detail below, the Board finds that there has been substantial compliance with its prior remand directives such that appellate review may now proceed.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the prior remand instructions met with substantial compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).


FINDING OF FACT

The Veteran's lumbar spine disorder did not have its onset in service or within the initial post-service year, and is otherwise unrelated to his active service.   


CONCLUSION OF LAW

The criteria for service connection for a lumbar spine disorder have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA applies to the instant issue.  

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim at issue.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 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.  38 C.F.R. § 3.159(b)(1) (2013).  VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice requirements apply to all five elements of a service-connection claim:  veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).  

In this case, VCAA notice was provided through a letter issued in March 2008, prior to the initial unfavorable adjudication.  The March 2008 letter advised the Veteran of the specific evidence needed to substantiate his service-connection claim, as well as his responsibilities, and those of VA, for obtaining such evidence.  That letter also described in detail how VA assigns a disability rating and an effective date following the grant of service connection.  As such, that letter not only comported with the Pelegrini notice provisions but also satisfied the heightened VCAA requirements set forth in Dingess.  Accordingly, the Board finds that VA has fully met its duty to notify the Veteran.

Duty to Assist

The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c).  In this regard, the agency of original jurisdiction (AOJ) has obtained copies of his service treatment records (STRs), pertinent VA medical records, and SSA records.  Although the Veteran has identified additional records of private treatment, he has expressly indicated that such records are no longer available.  See Hearing Tr. at 6.  Significantly, the Veteran has neither alleged nor otherwise shown that any additional pertinent records remain outstanding in connection with this appeal.

In addition to obtaining pertinent records, the AOJ has assisted the Veteran by affording him multiple VA examinations in support of his claim.  Although the initial VA examination, administered in June 2008, did not adequately account for the lay evidence of record, that deficiency was remedied in a follow-up VA examination, conducted in September 2011.  While the Veteran and his representative have tacitly disagreed with the September 2011 VA examiner's findings, neither party has alleged that such findings are inadequate to decide the appeal.  Nor has the record otherwise suggested that to be the case.  The September 2011 VA spine examiner conducted a physical examination, elicited pertinent medical history, and provided an opinion supported by a rationale.  Accordingly, the Board finds that any additional VA examination would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken.  

Nor should any other evidentiary development be undertaken as the Board's prior remand has been met with substantial compliance by the AOJ.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the AOJ has made reasonable efforts to obtain the Veteran's treatment records and SSA records, and has arranged for a VA examination that is adequate for rating purposes.  Thereafter, the AOJ has readjudicated the appeal in a March 2012 Supplemental Statement of the Case (SSOC), which has expressly considered the relevant evidence concerning this appeal.  Accordingly, absent any showing to the contrary, the Board is satisfied that there has been substantial compliance with the terms of its latest remand, including its instruction to readjudicate the Veteran's claim an SSOC.  See Stegall, 11 Vet. App. at 271.  

As a final matter regarding the duty to assist, the Board notes that the Veteran has had the opportunity to testify before the undersigned in support of this appeal.  See 38 C.F.R. § 20.700(a) (2013).  The transcript of the November 2010 hearing reflects that the undersigned set forth the issue on appeal at the start of the proceeding, then focused on the elements necessary to substantiate that claim and sought to identify any further development that was required.  See Board Hearing Tr. at 2, 4-9.  Specifically, the undersigned elicited testimony from the Veteran regarding his in-service motor vehicle accident (MVA), which allegedly precipitated his current lumbar spine disorder, as well as his subsequent treatment for that disorder by private and VA clinicians.  Id.  The undersigned also advised the Veteran of the importance of lay evidence in establishing a continuity of symptomatology that could support his appeal.  Id.  These actions, which later led the Board to reopen the Veteran's service-connection claim and remand that issue for further development, satisfied the duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the provisions of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error, either by failing to fully explain the issue on appeal or by neglecting to suggest the submission of relevant evidence that may have been overlooked.  

For the foregoing reasons, the Board finds the Veteran has had the opportunity to meaningfully participate in the adjudication of his claim for service connection for a lumbar spine disorder.  See Washington v. Nicholson, 21 Vet. App. 191 (2007).  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


II.  Analysis

The Veteran contends that he injured his lower back during an in-service MVA and thereafter developed a chronic lumbar spine disorder for which service connection is warranted.  See Board Hearing Tr. at 2-5.  

In light of the Veteran's contentions, and the fact that he has been diagnosed with degenerative joint disease of the lumbar spine - a disease expressly recognized as chronic under 38 C.F.R. § 3.309(e) - the Board will consider whether to grant his claim on both direct and presumptive basis.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record).  

Service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  Establishing service connection on a direct basis generally requires evidence showing: (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.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

As is relevant in the instant case, the second and third Hickson requirements (in-service incurrence/aggravation and nexus) may be rebuttably presumed for certain chronic diseases, including arthritis, which manifest to a compensable degree within one year after discharge.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  Service connection for such diseases may also be presumed based upon a showing of continuity of symptomatology emanating from service.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). 

Here, the record reflects that the Veteran has been treated extensively for lower back pain, stiffness, and related symptoms comporting with a diagnosis of degenerative joint disease of the lumbar spine.  Such clinical evidence of current lumbar spine pathology is sufficient to satisfy the threshold requirement of a current disability for service connection under Hickson.

The second element of Hickson has also been satisfied.  In this regard, the Veteran's STRs reflect that, in November and December 1972, he sought treatment for lower back pain incurred in a recent MVA.  Concurrent X-rays were negative for any evidence of lumbar fractures, but did yield a clinical finding of spina bifida occulta, which had not been shown on entry.  Parenthetically, the Board notes that this lumbar spine abnormality is not a disease or injury within the meaning of the applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.  Rather, spina bifida occulta considered a life-long defect and normally static condition, which is incapable of improvement or deterioration.  See VAOGCPREC 67-90 (1990).  As such, it does not warrant service connection unless subjected to a superimposed disease or injury, which causes additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).

Based upon the above X-rays, in-service clinicians assessed the Veteran with lumbar strain and prescribed a regimen of physical therapy, which he completed without incident.  Thereafter, the only relevant in-service notation is an isolated April 1973 complaint of back and shoulder pain following a weekend playing football.  The Veteran was treated with a heating pad and over-the-counter painkillers.  His symptoms appear to have resolved by the time of his separation examination.  Indeed, the report of that June 1973 examination is negative for any complaints or clinical findings of lumbar spine abnormalities.  Nevertheless, the Board recognizes that the Veteran has since alleged that his "back never stopped hurting" following his in-service MVA.  See Board Hearing Tr. at 5.  The Veteran is competent to report such ongoing symptomatology because his back pain is capable of lay observation.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge).  Moreover, the Board observes that his assertions in this regard may serve as competent evidence of chronic disability, even when not corroborated by contemporaneous medical evidence at separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

Accordingly, the Board finds that the totality of the record is sufficient to establish that the Veteran injured his lumbar spine in service.  His claim therefore turns on whether a nexus exists between that in-service injury and his current disability.  

In an effort to meet this third and final Hickson element, the Veteran submitted a January 2008 written statement from his VA treating provider, who purported to have "reviewed several pages of [service treatment] records," including those pertaining to the November 1972 MVA.  Based upon that evidence, and her own treatment of the Veteran, the VA treating provider opined that it was "as likely as not that the pain he has now is related to injury in service and should be considered service-connected."

A countervailing medical opinion was offered by a different VA clinician who examined the Veteran and reviewed his pertinent service and post-service medical records in June 2008.  Despite concurring with the Veteran's treating providers that he met the diagnostic criteria for lumbar degenerative joint disease, the June 2008 examiner opined that this condition was less likely than not related to the 1972 MVA, or any residual thereof, noting: 

By Veteran's history, he sustained several injuries since [service] to his back.  In 1975, he hurt his back while he was working in a cardboard box factory.  He was involved in MVA twice since he was retired from the military.  Veteran's medical service record shows a diagnosis of lumbar spine strain.  The x-rays showed no fracture.  There were no further back problems noted while in the service except a 1973 complaint of back pain.  There was no diagnosis of a chronic condition of the spine and no evidence of chronic symptomatology of the spine.  Therefore, it is this examiner's opinion that it is less likely than not the [V]eteran's back condition is related to his service-connected condition of lumbar spine strain.

The above VA medical opinion was predicated on a review of pertinent evidence, both clinical and lay.  Nevertheless, that opinion preceded and, thus, did not account for the Veteran's August 2008 written statement, and November 2010 hearing testimony, in which he effectively attested to continuous back problems since his in-service MVA.  Accordingly, the Board determined that it was necessary to remand the claim for a follow-up medical examination and opinion to specifically address the Veteran's assertions in this regard.  See Dalton v. Nicholson, 21 Vet. App. 23, 37-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

A follow-up VA examination was conducted in September 2011 and included a review of the entire claims file.  However, despite the current lay assertions of continuous low back symptomatology since service, the September 2011 examiner concurred with his predecessor's negative nexus opinion, elaborating in this regard:

The STR shows treatment for back pain secondary to MVA in 11/30/1972.  The Veteran was again seen for back pain in 12/7/1972.  The thoracic x-ray showed no evidence of fracture.  The diagnosis was lumbosacral strain secondary to trauma.  He was sent for PT [physical therapy].  The Veteran complained of back trouble in April 1973.  There are no other documented evidence that the Veteran was treated for a chronic back condition in the military.  He was discharged from the military in 1973.  The seperation [sic] examination does not show any back condition.  There are [sic] no documented evidence for a treatment for a back condition until 1998.  The Veteran reported that he had injured his back several times after the military.  The Veteran reported that he hurt his back while he was working in a cardboard box factory in 1975.  He was involved in MVA[s] twice since his discharge from the military.  The Veteran reports that he received physical therapy for back condition for 4 months after the MVA.  The Veteran reports he injured his back while working in the oil field.  There are no evidence for a chronic back condition in the military or within one year of his discharge from the military.  There are [sic] no evidence for a fracture or dislocation in the x-rays.  Therefore, it is less likely than not the veteran's back condition had its onset in the service, or related to his periods of service, to include 1972 MVA.

Where, as here, the record contains conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning.  See Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

In this instance, the Board finds the September 2011 VA examiner's opinion, which corroborates his predecessor's finding of a negative nexus between the Veteran's current lumbar spine disorder and active service, to be more probative than the contradictory January 2008 findings of the VA treating provider.

In making this determination, the Board considers it significant that the September 2011 VA examiner not only interviewed and examined the Veteran but also reviewed his entire claims file.  The Board recognizes that such review is not a strict prerequisite for medical opinions, even those authored by VA examiners.  
See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  Nevertheless, the probative value assigned to a medical opinion may be reduced if the clinician fails to acknowledge relevant information, particularly that which is contrary to the opinion.  Conversely, greater reliance may be placed on an opinion rendered by a clinician who fully accounts for all salient evidence, both clinical and lay.  Indeed, it is the responsibility of each clinician to duly consider such competent evidence and reserve the Board's right to determine the overall weight of that evidence in the final adjudication of the claim.  

Here, by reviewing the pertinent evidence in full and supporting his conclusions with a detailed rationale, the September 2011 examiner demonstrated a robust understanding of the pertinent facts of this case.  See Nieves-Rodriguez, 22 Vet. App. at 302-03 (applying the Federal Rules of Evidence to find that the probative value of a medical opinion depends on whether the opining clinician is fully informed of the pertinent facts, i.e., history, of the case).  As such, the Board is satisfied that the September 2011 opinion describes the Veteran's lumbar spine pathology in sufficient detail to allow for a fully informed evaluation of his claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding an examination report adequate where it describes the disability in sufficient detail to make a fully informed decision).  

In contrast, the VA provider did not predicate her January 2008 opinion on any evidence apart from her own treatment of the Veteran and the specific STRs documenting his November 1972 MVA.  Such evidence is certainly pertinent to the Veteran's claim for service connection.  However, it does not account for his current disability picture so as to allow for a fully informed decision on that claim.  Most notably, the VA provider's opinion makes no mention of the Veteran's history of lumbar spine injuries following his active service.  That is a critical omission because this history of intercurrent injury directly undermines the Veteran's claim for service connection and must therefore be weighed against the other clinical and lay evidence supporting his claim.  

For the foregoing reasons, the Board considers the findings of the September 2011 VA examiner to be more probative than those of the January 2008 VA treating provider and to constitute the most persuasive medical opinion evidence of record.  The Board recognizes that the Veteran disagrees and is himself of the opinion that his current lumbar spine disorder had its onset in service.  While a lay person, he is certainly competent to opine as to medical questions that fall within the realm of common knowledge.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  Such questions, however, do not include the etiology of his current lumbar degenerative joint disease, which, because of their complexity, generally require a medical expertise to resolve.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his [active service], 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.").  Indeed, that is especially true where, as here, the Veteran's lumbar spine disability picture is complicated by his significant history of intercurrent low back injuries.  The Veteran has not been shown to have training in the medical field, to include the spine, so as to be able to provide competent evidence regarding the etiology of his lumbar spine disorder.

Accordingly, the Board finds that, on the strength of the September 2011 VA examiner's negative nexus opinion, and the lack of any similarly probative counterevidence, including the Veteran's own lay assertions, the totality of the record is insufficient to establish a direct link between his active service and currently diagnosed lumbar spine disorder.  

Moreover, the record does not in any way suggest that the spina bifida occulta, which was noted in service, was therein subjected to a superimposed in-service disease or injury that generated additional lumbar disability.  Indeed, the Veteran has not advanced such a theory, and none is supported by the medical evidence of record.  To the contrary, that evidence shows that the Veteran's current lumbar spine disorder is attributable to his post-service low back injuries and was neither caused nor aggravated by any aspect of his active military service.  As such, the Board finds that the third and final Hickson element has not been met in this case and, thus, direct service connection is not warranted.

Nor is presumptive service connection warranted.  Tellingly, the Veteran has not alleged that his currently diagnosed degenerative joint disease of the lumbar spine manifested to a compensable degree in service or within the initial post-service year.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  There is also no other evidence of record that suggests that this was the case.  To the contrary, the X-rays taken after the Veteran's in-service MVA were negative for any sign of fracture or other injury that could potentially trigger the degenerative changes inherent in his current lumbar diagnosis.  

The Board notes that the claims file is devoid of any treatment for low back problems until 1998, approximately 25 years after the Veteran left the Army.  The Board recognizes that he has since attested to an earlier history of post-service treatment.  See Board Hearing Tr. at 6.  However, by his own admission, that treatment did not take place until 1975, when he injured his lower back in the course of his civilian employment.  Id.  Such a lapse in time between service and post-service medical treatment is a factor that weighs against entitlement to service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury was incurred during the active military service and resulted in a chronic or persistent disorder).  

Furthermore, in this particular case, the gap between the Veteran's service separation examination, when he denied any current lumbar spine pathology, and his first reported post service low back treatment, following his civilian job injury, weighs against a finding of continuity of symptomatology.  This, in turn, further undercuts his claim for service connection on a presumptive basis.  See 38 C.F.R. § 3.303(b) (2013); see also Walker, 708 F.3d at 1337-1338. 

In summary, the Board finds that the evidence of record weighs against a finding of service connection under any applicable theory of entitlement.  Thus, while mindful of the benefit-of-the-doubt doctrine, the Board finds that rule is not for application and that the benefit sought on appeal must accordingly be denied.  See 38 U.S.C.A. § 5107 (West 2002) 38 C.F.R. § 4.3 (2013).


ORDER

Entitlement to service connection for a lumbar spine disorder is denied.


____________________________________________
PAUL SORISIO
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs