Citation Nr: 1340396 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-35 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back condition. 2. Entitlement to service connection for a right knee condition. 3. Entitlement to service connection for a right wrist condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. On his VA Form 9 appeal to the Board, the Veteran indicated he wanted a hearing in Washington, D.C., which was scheduled for August 22, 2013. However the Veteran withdrew his hearing request via letter in August 2013. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issues of entitlement to service connection for a right knee condition and a right wrist condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of degenerative joint disease of the thoracolumbar spine. 2. He was treated for lower back pain in service after he hurt it lifting various materials. 3. He has not established by that his current thoracolumbar degenerative joint disease relates back to service. CONCLUSION OF LAW The criteria for service connection for thoracolumbar degenerative joint disease have not been established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a January 2010 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination for his lower back condition which contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's claimed condition. The Board finds that VA's duty to assist with respect to the back disability claim has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Merits of the Claim The Veteran contends that his lower back condition is related to his period of active service. Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is an alternative path to service connection using a presumption. Presumptive service connection is available to Veterans who suffer from certain chronic disorders and diseases that manifest during service or within one year after service to the required minimum compensable degree of at least 10-percent disabling. This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If the conditions to presumptive service connection cannot be said to be "chronic" in the medical sense, a Veteran may still yet succeed if he can show a continuity of symptomatology under 38 C.F.R. § 3.303(b), but only assuming his condition is one listed in § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). With regards to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based on medical evidence in the record for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Federal Circuit Court has held that "[l]ay 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 profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). But in determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336. Consider also that a Veteran is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also 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 documentation of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran received treatment for lower back pain from December 2009 to October 2010 at the Hampton VA medical center. He was formally diagnosed with mild degenerative joint disease of the thoracolumbar spine at his September 2011 VA compensation examination. The Veteran claims that his back injury originated while on active duty, specifically in January 1988. At that time, he claims he injured his back while "over-lifting" heavy material for the Army, "such as military ammunition rounds and all other equipment...[including] tents and weapons." The Veteran's STRs do contain record of treatment for back pain in January 1988. That report stated the Veteran began experiencing back pain while lifting a tent. It also states the pain increased when the Veteran "lifted a jug." The medical examiner indicated the Veteran's left lateral portion of his back was in pain and noted there was no spasming present. The Veteran declined pain meds at that time. Later in service, in August 1989, the Veteran experienced muscle spasms in the "mid thoracic region" of his back. In a document summarizing the Veteran's in-service problems, "mechanical low back pain" is listed, dated January 1988, in the "Temporary (minor) Problems" category. In the Veteran's separation-from-service report of medical history dated May 1991, he noted that he experienced recurrent back pain. In the accompanying physician's summary, there is notation that the Veteran last experienced lower back pain six months prior due to overuse. However this was marked as "[r]esolved [no complications, no sequelae]." At his May 1991 separation examination, the Veteran's spine was marked as normal. No back condition was noted. At the aforementioned September 2011 VA examination, an MRI of the Veteran's back revealed mild thoracolumbar degenerative joint disease. There, the Veteran reported that his back "just went out" in 1993, forcing him to crawl to his bed. Since then, he reported shooting pain in his back to buttocks when bending over, along with difficulty standing up from a bent position. He reported nightly back spasms and that his back would "go out" four times a year. He self treated this condition with aspirin and rest. After reviewing the Veteran's claims folder, it was the examiner's opinion that the degenerative joint disease of the thoracolumbar spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale included the fact that the Veteran's separation examination was normal, his separation report of medical history indicated his back pain had resolved, and there was "[n]o documentation found of ongoing back condition since military service...[the Veteran] appears to have had an acute injury which resolved." The Board concludes that the Veteran has a current diagnosis of degenerative joint disease of the thoracolumbar spine and experienced an event in-service that may have caused a back condition. However, the Board finds that the preponderance of the evidence is against establishing a "nexus" between these two elements. The Board recognizes that the Veteran stated he believes his current condition is related to his service. Although lay persons are nonetheless competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of degenerative joint disease of the thoracolumbar spine, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran's statements are not competent evidence of a medical nexus between his claimed back condition and his in-service back pain, which had resolved by the time he separated. The Board also recognizes that while the Veteran stated at his VA examination that he had experienced pain he attributed to service since at least 1993, the record is absent any treatment reports for lower back pain until 2009, some 18 years after he separated from service. Additionally, there is no evidence of the Veteran's thoracolumbar degenerative joint disease in the year after his separation (from July 1991 to July 1992). Thus, while degenerative joint disease does avail itself to the presumptive service connection of § 3.309, it is not applicable to the Veteran's claim. Because it is supported by detailed explanations, the Board finds the September 2011 opinion to be the most probative evidence in determining the etiology of the Veteran's back condition. For this reason, the overall weight of the evidence is against finding a relationship or nexus between the Veteran's degenerative joint disease and any in-service injury or event. The claim is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Entitlement to service connection for a low back disorder, diagnosed as degenerative joint disease of the thoracolumbar, spine is denied. REMAND Unfortunately, the Veteran's remaining claims must be remanded for further development. To date, there has been no VA examination regarding his claimed right wrist or right knee disabilities. As previously stated, the duty to assist requires VA to provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4)(1); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Court has clarified that the third element of McLendon establishes a "low threshold" and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The medical evidence in the record regarding the right wrist and right knee consists of private treatment records. In May 2005, an MRI of the Veteran's right knee revealed "[m]ild medial compartment joint space narrowing...likely degenerative in nature." In October and November 2005, he was treated in the emergency room for right wrist pain. Finally in June 2006 nerve conduction studies were performed and he was diagnosed with moderate right median neuropathy at the wrist (carpel tunnel syndrome). As the relevant records are between seven and eight years old, further examinations are warranted to determine if the Veteran possesses the disabilities that he has competently reported are causing him pain. There are at least two entries of the Veteran reporting for medical treatment after exerting himself in service, and thus if he has current disabilities as claimed, an opinion is warranted regarding whether these disabilities are related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA compensation examinations for his right knee and right wrist. The claims file and a copy of this Remand must be made available to and reviewed by the examiner(s) in conjunction with the examination(s). Any required testing should be accomplished. The examiner is requested to provide a diagnosis of any current right knee and right wrist disability found. If disabilities are found, the examiner should then provide an opinion as to the following: a) Whether it is at least likely as not (50 percent or greater probability) that any right knee disability had its clinical onset during the Veteran's period of active service from October 1983 to July 1991or is related to any in-service disease, event, or injury during that period of service. b) Whether it is at least likely as not (50 percent or greater probability) that any right wrist disability had its clinical onset during the Veteran's period of active service from October 1983 to July 1991or is related to any in-service disease, event, or injury during that period of service. In providing these opinions, the examiner should consider the Veteran's own statements about his experiences regarding these claimed conditions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Next, review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 3. Finally, readjudicate these claims in light of this and all other additional evidence. If the claims continue to be denied, send the Veteran and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs