Citation Nr: 1343167 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-03 306A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbosacral disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Houston, Texas. In August 2013, the Board remanded the Veteran's claim for further development. Such development has been completed ands associated with the claims file, and this matter is returned to the Board for further review. FINDING OF FACT Clear and unmistakable evidence demonstrates that the Veteran's lumbosacral disability preexisted service, and clear and unmistakable evidence demonstrates that it was not aggravated by service beyond the natural progression of the disease. CONCLUSION OF LAW Service connection for a lumbosacral disability is not warranted, and may not be presumed. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1132, 1137, 1153 (West 2002 & Supp. 2012); 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) With regard to the Veteran's claim for service connection for a lumbosacral disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that January 2004, March 2005, and March 2006 VCAA letters fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The VCAA notice letters informed the Veteran of what information or evidence was needed to support his claim, including claims involving aggravation, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The notices also explained how VA assigns disability ratings and effective dates. See Dingess, supra. Although this last notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. The Board acknowledges that records in the claims file indicate that the Veteran has been in receipt of disability income from the Social Security Administration (SSA) since September 2008, and that the RO has made three requests for copies of the Veteran's records from the Social Security Administration (SSA), but that no records were ever received. In April 2010, October 2010, and December 2011, the RO notified the Veteran that the records had been requested but not received, and asked that he submit any records he may have. Therefore, the Board finds that the RO exhausted all reasonable administrative efforts to obtain the records. In its August 2013 remand, the Board directed that all of the Veteran's more recent VA treatment records dated since July 2008 be associated with the claims file. Pursuant to the Board's remand directive, all of the Veteran's VA treatment records dated through September 2013 have been associated with the electronic claims file. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive, and that the record contains sufficient evidence to make a decision on the Veteran's claim. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a December 2006 VA examination relating to his claim. Because the December 2006 VA examiner indicated that the Veteran's lumbosacral condition preexisted service, in August 2013, the Board remanded the Veteran's claim for a VA medical opinion to clarify whether there is clear and unmistakable evidence that the Veteran's lumbosacral condition preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated by service (or a new VA examination if the prior VA examiner was not available). The examiner was also directed to address the relationship between the Veteran's lumbosacral condition and his alleged lower extremity condition that the Veteran has asserted causes him to fall and hurt his back. Pursuant to the Board's remand directives, an October 2013 VA examination (by a new VA examiner) was provided, which examiner answered all of the questions posed by the Board and included adequate rationales for the conclusions provided. Therefore, the Board finds that there was substantial compliance with the Board's remand directive, and that the October 2013 VA examination report is sufficient upon which to base a decision with regard to the Veteran's claim. The October 2013 VA examiner interviewed and thoroughly examined the Veteran, reviewed the claims file, and answered all of the questions posed by the Board, and provided adequate rationales. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a) (2013). Service connection may 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) (2013). To establish service connection, the evidence generally must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain listed "chronic" diseases in 38 C.F.R. § 3.309(a), including arthritis, that manifest to a compensable degree within a prescribed time period, which period is within one year of discharge from active duty in the case of arthritis. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In this case, however, there is no record of any diagnosed "chronic" condition such as arthritis diagnosed within one year of discharge; therefore, the presumptive service connection provisions are not for application. A veteran may also establish service connection for a listed "chronic" disease in 38 C.F.R. § 3.309(a) by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir.2013). Continuity of symptomatology contemplates evidence of continuous symptoms after service. See Savage v. Gober, 10 Vet.App. 488, 495-96 (1997). In this particular case, however, for the reasons explained below, the Board finds that there is clear and unmistakable evidence that the Veteran's lumbosacral disability preexisted service and was not aggravated by service, and that the Veteran's alleged continuity of symptomatology is not credible. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran served on active duty from October 1963 to October 1967. He claims that he has a lumbosacral disability due to a 20-foot fall in service around 1963 or 1964 during basic training at Lackland AFB. He asserts that has experienced back pain since service. See, e.g., VA Treatment Records, April 1999 and April 2001. The Veteran's October 1963 enlistment examination report reflects no notations regarding any back problems, and examination of his spine was normal. A November 1963 treatment record prepared at the Lackland AFB dispensary reflects that the Veteran complained of low back pain with sciatica, stomach pain, and nausea. No precipitating injury was noted, and the Veteran reported a lifting injury one year prior. Nothing remarkable was notated on examination, and no evidence of back sprain was noted. An x-ray order reflects a history of an "old injury one year ago, pain now especially after physical training." November 1963 x-ray revealed no abnormal findings. On his September 1967 separation report of medical history, the Veteran checked the boxes indicating that he experienced arthritis and recurrent back pain, and the physician noted on the report that arthritis referred to generalized joint pain present for two years that had been evaluated in June 1967 and was treated with physical therapy. The Board notes that the service treatment records reflect physical therapy was provided in 1966, not 1967, following complaints of neck pain. The September 1967 separation examination report reflects that examination of the Veteran's spine was normal. As shown above, no preexisting condition was noted on the Veteran's October 1963 entrance examination report or report of medical history. Therefore, the Board finds that the presumption of soundness applies in this case, unless rebutted with clear and unmistakable evidence that it preexisted service, and clear and unmistakable evidence that it was not aggravated. A March 1999 VA treatment record reflects that the Veteran complained of low back pain, that he had a history of trauma (but no specifics were noted), and notes that a CT scan revealed significant spinal stenosis secondary to a disc bulge at L4-5. See also June 1999 record. Also, a January 1998 radiology report (prepared at a private facility) showed significant diffuse hypertrophic degenerative changes in the lumbar spine, especially in the lower lumbar segments. VA treatment records dated since March 1999 reflect that the Veteran has continued to be follow for complaints of low back pain. VA treatment records dated in April 1999 and April 2001 reflect that the Veteran reported that he had experienced low back pain for decades and that he believed that it was due to an injury in service. A June 2003 MRI from a private facility revealed disc herniation at L4-L5, as well as significant degenerative bone disease, especially around the levels L4-L5 and L5-S1. Recent VA treatment records reflect the Veteran has continued to be followed for his diagnosed lumbosacral conditions, including spinal stenosis and degenerative disc disease. See, e.g., August 2009, January 2010. As shown above, the Veteran has been diagnosed with a current lumbosacral disability. Therefore, the Board will now address whether it is related to his active service. The Veteran was provided with VA examinations in December 2006 and October 2013. The December 2006 VA examination report reflects that the examiner noted that the Veteran reported that he injured his lumbar spine in service in a 20-foot fall during a wall-climbing exercise in 1963 or 1964. Post-service, the Veteran reported that around 10 to 12 years ago, he was on top of a trailer and slipped and fell down to the ground. He later told the examiner that he hurt his back in service, and hurt it again 10 to 12 years ago. He reported constant lumbosacral pain. It was noted that he had not worked since 1998. The examiner noted that the Veteran's service treatment records showed that he was treated for low back pain in November 1963 with no x-ray findings, and that the Veteran reported to the clinician at that time a history of a lifting injury one year prior, but that his separation examination included no mention of his back. The examiner noted that the first record of lumbar spine stenosis in the medical records was in January 1998. X-rays revealed severe degenerative disc disease with osteoarthritic changes. The examiner recorded a diagnosis of lumbar spine multilevel osteoarthritis and degenerative disc disease, and lumbar spine spinal stenosis L4-L5 (per MRI report June 2003). The examiner opined that the Veteran's spinal stenosis was not caused by or related to his active service. The examiner reasoned that his service treatment records noted his history of a pre-service lifting injury, and that after the one documented complaint in November 1963, the Veteran was not seen again for low back pain through his discharge physical in 1967, which was almost four years of continued active duty service. The examiner further noted that there is no evidence to support that the Veteran's lumbar spinal stenosis in particular was related to his service, noting that the Veteran admitted during the examination that he injured his back ("again") after service 10 to 12 years prior (i.e., around 1994 to 1996). Because the December 2006 VA examiner indicated that the Veteran's lumbosacral condition preexisted service, the presumption of soundness was called into question. Therefore, the Board remanded the Veteran's claim in August 2013 so that a VA medical opinion could be obtained to clarify whether there is clear and unmistakable evidence that the Veteran's lumbosacral condition preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated by service. The October 2013 VA examination report reflects that the Veteran reported that he experiences constant chronic low back pain with radiation to the bilateral lower extremities with numbness and tingling as well as intermittent weakness. The Veteran reported that he first injured his lumbar spine in service when he fell from a wall during PT training. The examiner noted that the Veteran's service records reflected that the Veteran was seen for back complaints in service but x-rays were normal at that time, and that his separation examination documented no abnormalities or complaints of the lumbar spine. The examiner noted that the first medical record of degenerative disc disease of the lumbar spine was in 1998 and that he was subsequently diagnosed with spinal stenosis. The examiner opined that there is clear and unmistakable evidence that the Veteran injured his lumbar spine prior to service. The examiner reasoned that the Veteran was noted twice in the service treatment records in November 1963 as having an old back injury one year prior to service, and it was noted as due to heavy lifting, and that the Veteran complained of back pain with physical training and after exercise. The examiner further opined that there was clear and unmistakable evidence that the preexisting lumbar spine condition was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that physical exam of the lumbar spine and radiographic evidence at the time of his initial evaluation in service did not demonstrate any abnormality, the service treatment records did not demonstrate any further reports of low back pain during the remainder of his service, and the separation examination report showed no abnormality or complaint of the lumbar spine. With regard to the Veteran's lower extremity complaints, the examiner opined that the Veteran had spinal stenosis that was diagnosed around 30 years post-service after his reported falling injury about 10 to 12 years prior to the December 2006 VA examination (i.e., his lower extremity complaints were caused by his back condition). In light of the above opinion of the October 2013 VA examiner, the Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting lumbosacral disability. The Board notes that there is no medical opinion of record that addresses the Veteran's pre-service history of the lifting injury and his post-service falling injury sometime around 1994 or 1996 (10 to 12 years prior to the December 2006 VA examination) that conflicts with the opinion of the October 2013 VA examiner. Furthermore, the October 2013 VA examiner reviewed the claims file, elicited a history from the Veteran, thoroughly examined him, and provided a thorough rationale for his conclusion. Furthermore, in light of the above opinion of the October 2013 VA examiner, the Board finds that there is clear and unmistakable evidence that the Veteran's preexisting lumbosacral disability was not aggravated by service. Again, the Board notes that there is no medical opinion of record that conflicts with the examiner's opinion and that addresses the Veteran's pre-service and post-service back injuries. Again, the examiner provided a thorough rationale for his conclusion. The Board notes again that the examiner reasoned in part that after the initial in-service complaint, there was no further record of complaint in service, and there was no notation in the Veteran's separation examination, thereby showing that there was no in-service aggravation of his preexisting condition. Accordingly, the presumption of soundness is rebutted. The case turns on the presumption of aggravation. As noted above, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The October 2013 examiner specifically addressed this question, and found that during service, while he had some back pain, examination of his spine was normal, and he had no further complaints thereafter; therefore, he concluded that there was no increase in disability and it was not aggravated. For the reasons above, the Board has found this opinion to be competent and credible on the issue at hand. As such, the Board finds that service connection is not warranted. The Board acknowledges that certain VA treatment records reflect the Veteran's reported history to VA clinicians that he injured his back in service. See, e.g., April 1999, April 2001. The Board notes, however, that the mere transcription of the Veteran's lay history does not transform it into medical evidence of in-service incurrence or aggravation. See LeShore v. Brown, 8 Vet. App. 406 (1995). The Board also acknowledges a brief June 2004 letter from Dr. C.F.V., in which he wrote that the Veteran has severe degenerative joint disease of the lumbar spine as a result of an in-service injury, with associated radiation to both legs. Dr. C.F.V. did not, however, address the Veteran's pre-service and post-service back injuries. Also, Dr. C.F.W. did not provide any rationale for his conclusion. Therefore, the Board places more probative value on the opinion of the October 2013 VA examiner, which is supported by a thorough rationale. To the extent that the Veteran has argued that he loses strength in his lower extremities or legs due to his back, which causes him to fall and injure his back, the Board finds such a theory of entitlement to be circular in nature and lack any merit. Even so, the Board directed in its August 2013 remand that the October 2013 VA examiner to opine as to the etiology of the Veteran's lower extremity complaints, and the October 2013 VA examiner opined that the Veteran has diagnosed spinal stenosis causing his lower extremity complaints. Regardless, again, the Veteran cannot be awarded service connection for a lumbosacral disability secondary to a lower extremity disorder secondary to a lumbosacral disability. Therefore, the Board finds that this theory of entitlement lacks merit. The Board also acknowledges all of the Veteran's lay assertions, including his own lay opinion that he has a lumbosacral disability that was incurred in or is otherwise related to his active service. The Board finds, however, that the Veteran is not shown to be competent to render a medical opinion as to whether any of his diagnosed lumbosacral conditions, including a history of disc herniation, spinal stenosis, and degenerative disc disease were caused or aggravated by a fall around 50 years ago in service, which would require medical expertise. See Jeandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has asserted continuity of symptomatology since service, the Board finds the Veteran's report to lack credibility in light of the lack of any medical record of complaint until the late 1990s when the Veteran himself admitted to the VA examiner that he injured his back (albeit "again") falling off a trailer onto the ground, after which there are medical records of complaint and diagnoses, and after which he obtained disability from SSA and sought service connection from VA. The Board is mindful of Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), in which the court held that the Board erred by finding that a claimant's report of symptomatology lacked credibility solely because there was no contemporaneous medical evidence. The instant appeal, however, is distinguishable in that there are several post-service medical records in the claims file relating to other complaints; these records simply do not reflect any lumbosacral complaints prior to the late 1990s when the Veteran himself admits that he injured his back. In summary, the Board concludes that there is clear and unmistakable evidence that the Veteran's lumbosacral condition preexisting service, and that there is clear and unmistakable evidence that it was not aggravated by service, and that service connection is therefore not warranted. The benefit-of-the-doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a lumbosacral disability is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs