Citation Nr: 1340045 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 05-15 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to the service-connected stress fracture of the left proximal tibia. 2. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected stress fracture of the left proximal tibia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from August 1972 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This matter was previously before the Board in September 2009, September 2012, and May 2013, at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case must take into consideration the existence of the electronic record. FINDINGS OF FACT 1. A low back disorder was not manifested during service, was not diagnosed within the first post-service year, and is not otherwise related to active service or to a service-connected disability. 2. A left hip disability was not manifested during service, was not diagnosed within the first post-service year, and is not otherwise related to active service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a low back disorder, to include as secondary to the service-connected stress fracture of the left proximal tibia, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for the establishment of service connection for a left disorder, to include as secondary to the service-connected stress fracture of the left proximal tibia, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in May 2004, October 2008, December 2009, March 2010, August 2010, September 2010, October 2010, December 2010, and October 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, Social Security Administration, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. VA examinations were conducted in June 2010, July 2011, and October 2012. The Board further observes that this case was remanded in May 2013 in order to afford the Veteran a VA examination so as to assess the nature and etiology of his asserted disabilities. Thereafter, the Veteran was afforded a VA examination in July 2013 wherein the VA examiner reviewed the claims file and provided the requested opinion based on objective findings, reliable principles, and sound reasoning. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). However, because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the claimant. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Low Back Disorder The Veteran asserts entitlement to service connection for a back disorder, to include degenerative disc disease of the lumbar spine, as directly related to an in-service injury. In the alternative, he contends service connection is warranted for a back disorder secondary to his service-connected left tibia fracture. A review of the Veteran's service treatment records reveals that they reveal no problems involving the low back or spine during the Veteran's period of active service. The Veteran's January 1972 separation examination report shows clinical evaluation of the spine and musculoskeletal system was normal. Following service, an October 1991 record reflects that the Veteran reported a 10 year history of lower back pain. A February 1998 private treatment record shows that the Veteran reported having pain on his left side following a motor vehicle accident. A private medical record dated in November 2001 notes that the Veteran did quite a bit of daily manual labor while employed at a waste water treatment plant. He reported severe back pain whenever the weather changed, or after he stopped doing a lot of active labor at the waste water treatment plant. A November 2002 private orthopedic examination report reflects that the Veteran reported that his back problems began following an automobile accident in 1998 and that he had experienced left hip pain for several years. In a February 2002 letter, the Veteran's private treating physician reported that the Veteran suffered from multiple disorders, to include generalized osteoarthritis and severe lumbosacral disease. In August 2004, the Veteran underwent a VA joints examination, at which time the claims file was reviewed by the VA examiner. The Veteran reported that he injured his back during service. He stated that he experienced chronic back pain since that time. He was noted to work as a laborer. Following a clinical examination, the diagnosis was degenerative joint disease of spondylosis of the lumbosacral spine. A VA examination report dated in June 2010, shows, in pertinent part, that the Veteran reported that he developed low back symptoms following an in-service fracture of his left tibia. He described that low back pain began within six months following the in-service incident, and that the condition had progressively worsened since onset. The diagnosis was degenerative disc disease of the lumbar spine. The examiner opined that it was less likely than not that the Veteran's low back disorder was related to his left tibia fracture. As it did not appear that the VA examiner considered all of the lay and medical evidence of record, the Board found the examination report to be of limited probative value. A VA examination report dated in July 2011 shows that the VA examiner concluded that it was not at least as likely as not that the Veteran had a lumbar spine disorder related to service, noting no evidence of a lumbar spine disorder during service and no evidence of back complaints until approximately 1998, after a motor vehicle accident. A VA examination report dated in October 2012 shows that following examination of the Veteran and review of the claims file, the examiner opined that that the Veteran's diagnosed lumbar spine degenerative disc disease was not related to or aggravated by active service or by a service-connected disability. The examiner explained that the service connected conditions preceded the back condition based on the objective medical evidence. The examiner reported that there was no medical evidence for either condition starting in service based on review of the service treatment records. It was also reasoned that the severity of the back condition was mild based on the imaging studies, and that the medical evidence had shown the onset as starting years after active service. The examiner reported that the residuals of the service-connected condition of his left leg were also mild based on the objective data, and there was no gross leg length difference noted, no abnormal pelvic girdle angulation, and a lack of grossly antalgic gait. The examiner reported that based on the data, the most likely causes of the back condition were aging, obesity, and the Veteran's post-service occupation. A VA examination report dated in July 2013 shows that the Veteran reported low back pain which he attributed to an in-service injury wherein he had fallen down stairs. He added that his back pain had progressed since service. Physical examination revealed a diagnosis of lumbar spine degenerative disc disease. The VA examiner opined that the claimed low back disorder was less likely as not related to, caused by, or aggravated by time in service and/or the service-connected left proximal tibia condition. The proximal left tibia condition was not significant enough to be an etiology for the condition. This was based on the lack of leg length discrepancy, the lack of grossly altered joint architecture (based on imaging), and the lack of abnormal pelvic girdle angulation. All these factors were said to be needed for any possible transmission of effects to other locations such as the back or hip. The examiner added that the injuries in service were not sufficient enough to be etiologies of the condition based on the account of the incidents as well as the medical documentation. This was also confirmed by the fact that there was a lag of several decades between service and the onset of the condition based on the objective imaging data and medical records. If service had been the etiology of the condition, then the confirmation of the diagnosis would have been much sooner and the severity of the condition would have been more severe. The examiner concluded that the onset of the condition was age appropriate and consistent with the physical post-service occupations and obesity. The examiner added that if either service or a service-connected condition had been an etiology, then the onset would have been sooner and the condition worse once diagnosed. The condition was said to be a prevalent one that was extremely common with aging. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disorder. The Board recognizes that in August 2004 the VA examiner noted that the Veteran had provided a history of back symptoms since service. However, this is of limited probative value as a transcription of the Veteran's self-reported medical history is not transformed into competent medical evidence simply because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Additionally, while the Veteran stated in July 2012 that he did not injure his back in the 1998 motor vehicle accident, noting the only back injury he sustained was during active duty when he slipped going down some wet wooden stairs while on guard duty, and to the extent that the Veteran has attempted to establish a continuity of symptoms based on lay statements, the Board finds such attempt to be inconsistent with the more probative contemporaneous evidence of record, to include not only the negative service treatment records and normal separation examination report, but also the remarkable gap between separation and the initial documented complaints in regard to the back. The initial objective evidence of back symptoms is many years after service. Both the June 2010 and October 2012 VA opinions are to the effect that it is not at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine is related to service. The opinions note onset of back symptoms documented many years after service, the current severity of which was noted to be only mild. The October 2012 examiner concluded that the most likely causes of the Veteran's back condition are aging, his obesity, and his post service occupation. Consistent with all VA opinions above is the opinion of the July 2013 VA examiner who determined that the injuries in service were not sufficient enough to be etiologies for the Veteran's back condition based on not only the account of the incidents but also the medical documentation. The examiner's determination was noted to be confirmed by a lapse of several decades between service, as well as the onset of the back condition based on the objective imaging data and medical records. The examiner added that if the back condition was etiologically related to service, confirmation of the diagnosis would have been much earlier and the severity of the condition would be more severe. The onset of the condition was noted to be prevalent and extremely common with aging, and to be age appropriate for the Veteran consistent with both his physical post service occupations and obesity. The Board finds probative the July 2013 opinion of the VA examiner to be probative as it was definitive and unequivocal, fully informed of the pertinent factual premises, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). With respect to secondary service connection, the July 2011 VA opinion is to the effect that the Veteran's back disability is not caused by the minor left tibial stress fracture during service noting evidence of satisfactory healing of the left lower leg during service. The October 2012 VA examiner determined that it is less than likely that back condition was caused or is aggravated by the service-connected left tibia fracture. It was noted that residuals of the service-connected left tibial fracture were mild based on the objective data. The examiner based the opinion of the fact that there had been no gross leg length difference, abnormal pelvic girdle angulation, or grossly antalgic gait. The July 2013 VA examiner similarly determined that the proximal left tibia condition was not significant enough to be an etiology for the left hip condition based on the lack of leg length discrepancy, the lack of grossly altered joint architecture (based on imaging), and the lack of abnormal pelvic girdle angulation. All of these factors were noted to be needed for any possible transmission of effects to other locations, such as the back. Although not bound by a Social Security Administration determination, the Board has given consideration to the Social Security Administration records and determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the Social Security Administration's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a Social Security Administration decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim). A 2002 Social Security Administration determination reflects disability began in 2002, primarily for ischemic heart disease and only secondarily to disorders of back. Records upon which the determination was based include the Veteran's report that duties at work included lifting items and or bags weighing up to 100 pounds on a regular basis. Regardless, the records do not establish a back injury during service and do not contain an opinion relating a back disability to service. In reaching a determination, the Board has accorded more probative value to the VA opinions. The July 2013 opinion reflects review of the claim file, and the rationale provided for the opinion is based on objective findings, reliable principles, and sound reasoning. Moreover, it is consistent with the contemporaneous evidence as well as the other VA opinions. Such is far more probative than the Veteran's remote lay assertions. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran is able to observe continuity of back symptoms, his opinion is outweighed by the competent medical evidence. Simply stated, the Veteran's service treatment records (containing no competent medical evidence of a back disorder) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a back disorder for several years, and no competent medical evidence linking the reported back symptoms to service or to a service-connected disability) outweigh the Veteran's contentions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Consequently, service connection for a back disorder, to include degenerative disc/joint disease of the lumbar spine is not warranted. Left Hip Disorder The Veteran asserts entitlement to service connection for a left hip disability directly related to an in-service injury. In the alternative, he contends service connection is warranted secondary to his service-connected left tibia fracture. Although an October 2002 private record reflects a prior history of fracture of the left hip during service and the August 2004 VA joints examination report reflects a history of having been discharged from service because of joint problems, a transcription of the Veteran's self-reported medical history is not transformed into competent medical evidence simply because the transcriber is a medical professional. See LeShore, 8 Vet. App. at 409. As noted in the June 2010 VA opinion and the October 2012 VA report of examination, service treatment records are negative for complaints or findings pertaining to the left hip. The January 1972 separation examination report shows the spine and musculoskeletal system and lower extremities were normal, except for a left tibia fracture. Although the October 2002 private record notes arthritis of the left hip, the August 2004 VA examination noting the Veteran worked as a laborer and had developed left hip pain reflects X-ray examination was negative. Although the June 2010 VA opinion notes left hip degenerative joint disease, the October 2012 VA report of examination reflects X-ray examination of the left hip showed bones and joint spaces of the left hip were normal, and no acute fracture subluxation or significant degenerative changes were noted. Regardless, the objective evidence does not establish a left hip disability during service or for many years after separation, and the competent, reliable evidence does not establish any left hip pathology related to service. The Veteran is competent to report he has had left hip symptoms since service. The June 2010 VA opinion notes that the Veteran's complaints of left hip pain in 2007 had been present for several years, not since service. The October 2012 VA examiner reported no medical evidence of a left hip disorder during service, or until many years after service, and noted that the left hip symptoms were mild. Consistent with the VA opinions above is the opinion of the July 2013 VA examiner. The examiner determined that the injuries in service were not sufficient enough to be etiologies for the Veteran's left hip condition based on not only the account of the incidents but also the medical documentation. The examiner's determination was noted to be confirmed by a lapse of several decades between service, as well as the onset of the left hip condition based on the objective imaging data and medical records. The examiner added that if the left hip condition was etiologically related to service, confirmation of the diagnosis would have been much earlier and the severity of the condition would be more severe. The onset of the condition was noted to be prevalent and extremely common with aging, and to be age appropriate for the Veteran consistent with both his physical post service occupations and obesity. With respect to secondary service connection, the June 2010 VA opinion states that it is less than likely that the Veteran's left hip degenerative joint disease is caused or aggravated by service-connected left proximal tibial stress fracture noted to have occurred 29 years earlier. The October 2012 VA examiner determined that it is less than likely that a left hip condition is caused or aggravated by the Veteran's service-connected left tibia fracture noting only mild residuals of the service-connected left tibial fracture. The examiner reported no gross leg length difference and no abnormal pelvic girdle angulation, as well as a lack of a grossly antalgic gait. The most likely causes of the Veteran's left hip condition were noted to be aging, obesity, and his post service occupation. The Board finds probative the aforestated VA medical opinions to be probative as they were definitive and unequivocal, fully informed of the pertinent factual premises, and supported by detailed rationale. Accordingly, they are found to carry significant weight. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray, 7 Vet. App. at 492-93. The Board has also given consideration to the Social Security Administration records and determinations. See Collier, 1 Vet. App. at 417; Martin, 4 Vet. App. at 140. A 2002 Social Security Administration determination reflects disability primarily due to ischemic heart disease and secondarily to disorders of back. Regardless, the records do not establish a left hip injury during service and do not contain an opinion relating left hip pathology to service. In reaching a determination, the Board has accorded more probative value to the VA opinions. The July 2013 examination report reflects review of the claim file, and the rationale provided is based on objective findings, reliable principles, and sound reasoning, and consistent with the contemporaneous evidence. Such is far more probative than the Veteran's remote lay assertions. To the extent that the Veteran is able to observe continuity of left hip symptoms, his opinion is outweighed by the competent medical evidence. Simply stated, the Veteran's service treatment records (containing no competent medical evidence of a left hip disorder) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a left hip disorder for several years, and no competent medical evidence linking the reported left hip symptoms to service or to a service-connected disability) outweigh the Veteran's contentions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Consequently, service connection for a left hip disability is not warranted. ORDER Service connection for a low back disorder is denied. Service connection for a left hip disorder is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs