Citation Nr: 1340643 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-31 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to August 1985 and from May 1987 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board previously remanded this matter for additional development in December 2011. That development has been completed, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran's has a congenital low back defect (pars defect), and there was no disease or injury superimposed on it in service. 2. Arthritis of the lumbar spine was not manifested in-service or within one year of separation from service, and any current lumbar spine disability is not otherwise etiologically related to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, prior to the initial rating decision in this matter, a July 2007 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting the veteran in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records, post-service VA treatment records and pertinent private medical records identified by the Veteran have been obtained and associated with the claims file. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). The Veteran was afforded a VA examination in December 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the December 2011 remand, the Board determined that the July 2007 VA examination not adequate and remanded the claim for a new VA examination, which was performed in December 2011. The December 2011 examination obtained in this case is adequate, as it was predicated on a review of the claims file, contained a description of the history of the disability at issue, considered the relevant medical facts and principles and provided opinions as to the etiology of the Veteran's low back disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. The Board finds that there has been substantial compliance with the December 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has been diagnosed with degenerative facet disease. Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, became manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Under VA regulations, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or where evidence of medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1132 (West 2002 & Supp. 2012). Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA General Counsel has held that service connection can be granted for congenital diseases which are aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990) (a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexist claimants' military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition). A defect is a structural or inherent abnormality or condition, which is more or less stationary in nature. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. However service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Thus, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of the laws and regulations governing compensation for service-connected disabilities. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396, 397 (2009); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Service connection is only possible for a congenital defect if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. Competency of evidence differs from weight and credibility. The former 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran asserts that his current low back disability is related to service. He asserts that he sustained back injuries during parachute jumps. The Veteran also asserts that his low back disability is related to a motor vehicle accident which occurred during service in 1989. The Veteran had two periods of active duty service from July 1981 to August 1985 and from May 1987 to October 1990. In this case, the Veteran's duties as a paratrooper are confirmed by personnel records, which reflect that the Veteran was airborne and that he was a parachute rigger. The Veteran's enlistment examination for his first period of active duty service is not of record. The March 1985 separation examination noted that the Veteran had been treated for low back pain. The enlistment examination for the second period of active service, dated in March 1986, does not show findings of a low back disability. A normal clinical evaluation of the spine was noted. Service treatment records show that the Veteran reported low back pain. The Veteran was seen in 1989 with complaint of left flank pain, for one day status post motor vehicle accident. X-rays of the lumbosacral spine showed no evidence of compression fracture. The report noted an incidental finding of bilateral spondylolysis at L5-S1 without spondylolysthesis. The September 1990 service separation examination did not note any findings or complaints of a low back disability. VA treatment records show that the Veteran complained of back pain and tenderness in July, October and December 1991. The diagnoses were low back pain and low back strain. Following the complaints noted in 1991, the record does not contain any complaints regarding the low back until 2006. Beginning in 2006, medical evidence consistently shows treatment for back problems. Private treatment records dated in November 2006 reflect that the Veteran was seen for a recheck of chronic low back pain. The record noted that the Veteran had an MRI scan which revealed degenerative joint disease in the facet joints, especially at L5-S1, but no evidence of disk herniation or spinal stenosis. The Veteran reported that his back pain might be related to training as a paratrooper when he was in the Army. A November 2006 private MRI report reflects a diagnosis of prominent degenerative facet disease at L5-S1 with a minor spondylolisthesis. The report indicated that there was no evidence for disc herniation. An April 2007 record from a private physician, Dr. R.K, noted that the Veteran had chronic back pain and required chronic pain medication to control his symptoms so he could function normally. Dr. R.K. noted that there was a question as to whether this could have come from repeated hard landings when he was a paratrooper in service. He stated that there was no way to say this with any certainty, but [the Veteran] did have premature degenerative disease in his lumbosacral spine that could be related to trauma from hard landings when he was a paratrooper. The Veteran had a VA examination in July 2007. The Veteran reported constant low back pain. The VA examiner noted that, in regards to the low back, bilateral L5 pars defects were noted. The VA examiner stated that, though it was possible that these bilateral L5 pars defects are traumatic in origin, most often this condition is congenital. The VA examiner opined that the Veteran's bilateral L5 pars defects are less likely than not associated with the x-ray finding noted in service or the stress or parachute jumps in service. The VA examiner's rationale was the fact that bilateral pars defects are more commonly congenital. The Veteran had a VA examination in December 2011. The VA examiner indicated that the claims file was reviewed. The examiner noted that there was no history of back pain until the Veteran was involved in a motor vehicle collision with low back pain. The VA examiner noted that the Veteran reported that this pain recurred sometime in the early 2000's. The examiner also noted that the Veteran reported that multiple parachute jumps were the cause of his low back condition. The VA examiner noted that there was no specific trauma during jumps in the military or back injury in general. The VA examiner noted that the Veteran was seen in 1990/1991 for compensation examinations for his knees and did not report low back pain during those examinations. The examiner indicated that the Veteran had a cervical spine fusion in 1997, but there were still no reports of a low back condition, even in the spine clinic workups with neurosurgery at that time. The examiner noted that, in 1998, there was still no mention of a back condition in the compensation and pension examination. The VA examiner noted that arthritis was shown on imaging studies. With respect to significant findings, the examiner indicated that there was a probable L5 pars defect. The examiner indicated that there was no acute fracture, dislocation or subluxation. The VA examiner noted that, it is unclear exactly when spondylolysis (pars defect) occurred, but it was seen incidentally in the 1989 lumbar spine x-rays with no other mention of neuro complication and no fracture otherwise noted. The examiner stated that pars defect can commonly lead to spondylolisthesis (slippage) and facet arthropathy (facet arthropathy) which both likely contribute to the Veteran's minor Grade 1 spondylolisthesis. The VA examiner opined that it is impossible to determine exactly when L5 pars defect occurred, but it is likely congenital and was first seen at a young age in 1989. The examiner stated that bilateral L5 pars defects are commonly a congenital condition and is the most likely cause in the Veteran's case. The examiner opined that facet arthropathy (arthritis) is not caused by parachuting or military service, but rather due to congenital L5 pars defect. The VA examiner opined that military service did not cause or permanently aggravate the Veteran's lumbar conditions, as there is no objective evidence of injury from military service (including parachuting), nor were there symptoms in service suggestive of a chronic back condition or that would have predisposed him to a chronic back condition. The VA examiner noted that the Veteran's currently has arthritis, which was likely caused by his congenital pars defect which was seen on his x-ray in 1989 during service. The Board finds that the Veteran entered service in sound condition. Evidence on file (contemporaneous with service and after) to include multiple VA examination reports establish that he has a congenital defect of the spine, described as a bilateral L5 pars defect. Service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. There is no evidence that the Veteran's congenital defect was subject to a superimposed injury or disease in service. In 2011, the VA examiner considered the Veteran's service treatment records, including his history of parachuting and involvement in a car accident in 1989, as well as his own testimony as to the onset of his symptoms, and concluded that there was no objective evidence of injury in service. The VA examiner also concluded that the Veteran's lumbar spine condition was not aggravated by service. The evidence of record does not show that arthritis of the lumbar spine manifested within one year of separation from service in October 1990. Accordingly, service connection for arthritis may not be presumed. §§ 3.307, 3.309. There is a gap in treatment for back problems from 1991 to 2006. This gap weighs against a finding of continuity of low back symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board is also mindful that in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit held that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, although the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. Notably, the 2011 VA examiner considered the record as well as the Veteran's allegations of continuity of symptomatology and noted that there were several instances in which the Veteran could have complained of back problems, such as during various orthopedic VA examinations as well as during treatment for his cervical spine, but the record is silent for ongoing back problems. Thus, the examiner determined that there was no continuity of symptoms since service. The Board does not find the Veteran's competent allegations of ongoing symptomatology since service to be credible in light of the examiner's commentary. In this case, there is conflicting evidence with regard to the issue of whether degenerative disease of the lumbar spine is related to the Veteran's service. It is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192- 93 (1992)); See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The favorable medical evidence includes the opinion from Dr. R.K, dated in 2007. He stated that there was no way to say this with any certainty, but [the Veteran] did have premature degenerative disease in his lumbosacral spine that could be related to trauma from hard landings when he was a paratrooper. This opinion lacks certainty because Dr. R.C. indicated that degenerative joint disease "could be" related to hard landings. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical statement using the term " could ," or in the moving party's case, "may" or " possibly ," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence). The Board accords greater probative weight to the 2011 VA opinion. The examiner provided a detailed rationale for the opinions provided. The VA examiner's review of the Veteran's claims file and treatment record also add probative weight to his opinion. Although the Court held in Nieves-Rodriguez, supra, that review of the claims file is not the determinative factor in assigning probative value, it observed the importance of a physician's knowledge of all relevant case facts. The VA examiner reviewed and discussed the Veteran's service treatment records and post-service treatment history. The examiner's conclusion was based on a thorough review and understanding of the Veteran's history and is therefore more probative than the opinion of the private physician, which did not include such a review. The Board concludes that the weight of the competent medical evidence is against the claim. The Board has considered the Veteran's statements regarding the etiology of his back disability. Laypersons are competent to testify as to what they observed and what is within the realm of their personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, laypersons lacking in medical training and expertise cannot provide a competent opinion on a matter as complex as the etiology of a low back disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The lay statements of the Veteran are competent and credible to provide evidence of the Veteran's experience as well as reports of symptomatology, however, such statements are not competent to provide evidence as to complex medical questions, such as the etiology of a low back disability. For the reasons set forth above, the Board finds that the Veteran entered service with a congenital low back defect. This defect was not subject to a superimposed injury or disease. The Board concludes that a low back disability was not incurred in or aggravated by service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to service connection for a low back disability is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Service connection for a low back disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs