Citation Nr: 1343463	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  08-09 726A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disorder, including spondylolisthesis and osteoarthritis with associated pain.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. McCabe, Associate Counsel



INTRODUCTION

The Veteran had active military service from January 1962 to December 1963.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO determined there was no new and material evidence and, therefore, denied the Veteran's petition to reopen this claim.  The RO also determined that the prior decision denying this claim, including the decision to deny compensation for his spondylolisthesis, did not involve clear and unmistakable error (CUE).

In a March 2012 decision since issued, however, the Board determined there was the required new and material evidence and, therefore, reopened the claim.  But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim and a claim for a cervical spine disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  The additional development especially included scheduling the Veteran for a VA compensation examination for a medical nexus opinion concerning the nature and etiology of his claimed condition.  

The AMC since has issued a September 2012 Supplemental Statement of the Case (SSOC) continuing to deny this claim, so it is again before the Board.

Aside from this, the Board also sees that in a March 2010 statement the Veteran raised a claim of entitlement to service connection for radiculopathy and a left hip condition with hypertrophic changes in his left lower extremity - including as secondary to his low back disorder at issue.  But this additional claim has not been specifically adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, since the Board does not 

presently have jurisdiction to consider this additional claim, it is referring this claim to the RO for appropriate development and consideration.  See 38 C.F.R. 19.9 (2013); Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

Therefore, in this decision the Board is only deciding whether the Veteran is entitled to service connection for a low back disorder.


FINDINGS OF FACT

1.  The evidence of record indicates the Veteran's low back spondylolisthesis is a congenital defect and, thus, necessarily pre-existed his service.

2.  The evidence also indicates he has no additional disability in his low back from a permanent worsening during service of this pre-existing condition by a superimposed disease or injury that manifested in service.

3.  Any current disorder affecting his low back, including the osteoarthritis with associated pain, is not attributable to his service.


CONCLUSION OF LAW

The Veteran's low back disorder, including the spondylolisthesis and osteoarthritis with associated pain, was not incurred in or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of the file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the competency and credibility of all of the relevant evidence, so including both the medical and lay evidence, to in turn determine its ultimate probative weight, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for Veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 


II.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enhanced VAs duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

A.  Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 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 obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO as the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  However, if notice was not provided before initially adjudicating a claim or, if provided, it was inadequate or incomplete, to "cure" this timing defect in the provision of the notice and render it harmless VA need only provide all necessary notice, give the claimant opportunity to submit additional evidence and/or argument in response to it, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC).  This preserves the intended purpose of the notice in that the Veteran is still given meaningful opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements:  (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.  So notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of all five of these elements - thus, including the "downstream" disability rating and effective date elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

Here, to this end, prior to initially adjudicating this claim in February 2007, a December 2006 letter informed the Veteran of all five elements of a successful claim of entitlement to service connection, gave examples of the types of evidence he could submit in support of his claim to show this entitlement, and provided notice of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify was satisfied.  See id.  

B.  Duty to Assist

VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records (STRs) and other pertinent records, such as concerning his evaluation and treatment since service - whether from VA or private providers - as well as performing an examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

(i) The Duty to Assist by Obtaining Relevant Records

To satisfy this obligation, the Veteran's STRs and post-service VA medical records were obtained for consideration and associated with the file.  Private medical records identified by him also have been obtained and associated with the file.  He has not identified any other outstanding records or evidence.  Thus, the duty to obtain relevant records on his behalf has been satisfied.  See 38 C.F.R. § 3.159(c).

(ii) The Duty to Assist by Providing an Examination for a Medical Opinion

This duty also has been met.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4), 3.326(a).  This additional duty requires that VA provide a medical examination or obtain a medical opinion when necessary to decide a claim.  38 C.F.R. § 3.159(c)(4).  A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

The Court has held that the types of evidence that "indicate" that a current disability "may be associated" with military service is a "low threshold" and include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.).  See, too, Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (Medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service).


But this is not to say or suggest that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  If such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Here, in accordance with the Board's March 2012 remand directives, a VA examination of the Veteran was performed in April 2012.  The VA examination and opinion are adequate for deciding this claim.  Specifically, the examiner reviewed the claims file and medical history, examined the Veteran, and provided a clear explanation for the opinion, which is consistent with the evidence of record and enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy, or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Thus, the duty to provide a VA examination and opinion has been satisfied.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

Further, the April 2012 examination and opinion are responsive to the questions posed in the Board's March 2012 remand, including with regards to the nature and etiology of the Veteran's claimed low back disability.  Thus, there was compliance with the Board's remand directives in the conducting of that VA examination, in obtaining the necessary medical comment, and afterwards in readjudicating the claim in light of this and all other additional evidence.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries, 22 Vet. App. at 105; accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

C.  VCAA Conclusion

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate effectively in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review of this claim.

III.  Analysis

The Veteran contends that his low back disorder is the result of an injury he sustained while on active duty and that his back pain has persisted ever since.  In his original June 1964 service-connection claim, he contended that he had dislocated his vertebrae in March 1962 while lifting steel planking building a pontoon bridge during a training exercise.  In his more recent August 2007 notice of disagreement (NOD), he stated that he heard "a loud snap in his lower back while lifting a heavy piece of metal onto a truck."  He maintains that the intermittent back pain he has experienced ever since is directly attributable to his active military service.  But for the following reasons and bases, the Board finds that service connection is not warranted for this claimed condition.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).


Entitlement to service connection may be established on a direct basis with evidence showing:  (1) the Veteran has the claimed disability or, at the very least, that he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard.  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2012) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met.  Id. at 1338-39.

Because degenerative joint disease (i.e., arthritis) is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

Arthritis is also eligible for presumptive service connection.  Specifically, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for arthritis may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111, 1132. 

In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service.  See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003).  Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service.  See VAOPGCPREC 3-03.  Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service.  See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness").  The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999).  It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable."  See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)).

That said, congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9 (2013).  Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  Further, service connection for a disease (as opposed to a defect) of congenital or familial (hereditary) origin may be granted if the disease did not manifest until after service or was aggravated during service beyond its natural progression.  VAOGC 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty); VAOPGCPREC 11-1999 (Sept. 2, 1999).  The presumption of soundness applies to a congenital disease but not to a congenital defect.  Quirin v. Shinseki, 22 Vet. App 390, 397 (2009) (citing Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) and Winn v. Brown, 8 Vet. App. 510, 516 (1996)).

Turning now to the Veteran's STRs, the Board sees that his spine was found to be normal during his November 1961 military enlistment examination.  He also did not report any prior low back problems in the report of his relevant medical history.  He began serving on active duty just some 2 months later, in January 1962.  A December 1962 medical record shows he was seen by medical personnel for "sore muscles" in his low back.  But during his November 1963 military separation examination, his spine again was found to be normal and no back problems were noted or otherwise reported.  His active duty service ended a short time later, in December 1963.

A May 1964 examination for Reserve Duty reflects a diagnosis of first-degree spondylolisthesis of the lumbar spine.  A May 1964 orthopedic consultation notes a history of back injury in March 1962 while the Veteran was lifting steel planking.  On examination, he was found to have full range of motion (ROM) of his spine and active and equal reflexes with no gross atrophy.  There was increased lumbar lordosis and an X-ray confirmed the first-degree spondylolisthesis.  He resultantly was found unfit for further service.

July 1964 correspondence from a naval hospital reports that the Veteran underwent treatment in May 1964 for a "dislocated vertebra."  However, the hospital was unable to locate the underlying records.

In the many years since, post-service, a December 1999 VA progress note reflects that the Veteran complained of intermittent back pain lasting for a month.  The assessment was chronic low back pain and degenerative joint disease.  A June 2000 VA treatment record reflects his complaint of low back pain for two weeks following straining his back while lifting at his job, and a June 2001 interim progress note reflects ongoing treatment for osteoarthritis.  

In a December 2005 VA radiology report, the staff radiologist compared the Veteran's current X-rays of the lumbosacral spine with his spinal X-rays from July 1995 and noted "there has been no significant change in appearance of the Lumbosacral spine since [the Veteran's] previous radiographs."  The radiologist found hypertrophic spurring at L5-S1 and the superior aspect of the right sacroiliac joint.

A March 2006 VA MRI of the lumbar spine shows left foraminal disc extrusion at L2-L3 impinging the exiting left L2 nerve root and left foraminal narrowing at L3-L4.  In addition, the MRI shows right lateral recess stenosis and mild central canal stenosis at L4-L5.


A July 2006 VA CT Myelogram of the lumbar spine showed bilateral chronic pars defects causing grade one anterolisthesis of L5 on S1 and left neural foraminal narrowing at L3-L4, secondary to a focal disc protrusion.  Additionally, the staff radiologist reported circumferential disc bulge at L4-L5 and bilateral facet hypertrophy as well as a small focal protrusion extending into the left neural foramen of L2-L3.

A September 2006 VA CT scan reflects moderate degenerative changes in the Veteran's lower thoracic and lower lumbar spine, as well as moderate diffuse disc bulging at L4-L5 and L5-S1, which resulted in mild spinal canal stenosis and mild caudal neural foraminal narrowing bilaterally.  The VA radiologist found over bridging osteophytes in the sacroiliac joints bilaterally, particularly on the right side.  However, there was no evidence of osteolytic or destructive lesions, enlargement of the neural foramina, or presacral masses.  The radiologist provided an impression of mild spinal canal stenosis and caudal neural foraminal narrowing in the lower lumbar spine secondary to disc bulging.

A VA compensation and pension examination was performed in April 2012.  The Veteran reported pain in his low back since a 1962 injury in service, worsening over the years, with occasional incapacitating flare ups.  The examiner reviewed the claims file, specifically noting the Veteran's December 1962 STR attributing his pain to "sore muscles," and the May 1964 orthopedic records reflecting a diagnosis of first-degree spondylolisthesis of the lumbar spine based on radiograph evidence.  The examiner also noted the Veteran's various VA treatment records reflecting multiple diagnoses, including osteoarthritis, left foraminal disc extrusion, left foraminal narrowing, right lateral recess stenosis, mild central canal stenosis, left neural foraminal narrowing secondary to a focal disc protrusion, grade-one anterolisthesis secondary to chronic pars defects, mild spinal canal stenosis, and caudal neural foraminal narrowing in the lower lumbar spine secondary to disc bulging.


Physical examination revealed no evidence of spasm or apparent tenderness.  Range-of-motion testing revealed 90 degrees of flexion (90 degrees is normal), 30 degrees of extension (30 degrees is normal), 20 degrees of lateral bending to the right (30 degrees is normal), 20 to the left, and 30 degrees of rotation in each direction (30 degrees is normal).  There was no evidence of painful motion or additional limitation following repetitive use.  Lower extremity strength was normal.  Straight leg testing was negative.  Reflex testing showed delays in the left knee and bilateral ankles, and the sensory examination revealed decreased sensation in the left knee and left lower leg.  Additionally, the Veteran walked with a cane.  

The examiner diagnosed spondylolisthesis and degenerative disc disease (DDD)/degenerative joint disease (DJD) of the lumbosacral spine with disc protrusions, left foraminal narrowing, right lateral recess stenosis, and mild central canal stenosis.  But as concerning etiology, the examiner opined that the grade-one spondylolisthesis first demonstrated on the May 1964 orthopedic report was likely related to a congenital defect.  He determined, based on his medical knowledge and his review of the evidence of record, that there was nothing in service suggesting the type of repeated traumatic spinal injury that would result in spondylolisthesis.  Rather, he surmised, the condition likely was caused by defects in the pars interarticularis that pre-existed service.  Moreover, he reasoned, such a short duration of back pain as the Veteran experienced during service did not evidence an injury that would result in X-ray findings such as those reflected in the May 1964 orthopedic record.  Additionally, based on the VA treatment records documenting the Veteran's pars defect, the examiner determined the spondylolisthesis "has remained essentially unchanged over the many years since service," and, therefore, that the defect is congenital, rather than traumatic, in origin.

With regards to the other low back diagnoses, including the Veteran's DDD/DJD of the lumbosacral spine with disc protrusions, left foraminal narrowing, right lateral recess stenosis, and mild central canal stenosis, the examiner indicated these disorders also were not caused by or the result of the Veteran's military service.  The examiner reasoned that there was no evidence of any superimposed disease or injury during service of the type that would have led to these degenerative diagnoses.  The examiner conceded the Veteran's 1962 injury may have resulted in pain, but added that it was not a trauma significant enough to cause his current conditions, especially in light of the fact that the degenerative findings, specifically the DDD/DJD, were first clinically noted in the mid-to-late 1990's when he was nearly 60 years old.  Further, there was no evidence of a chronic low back condition until "many, many years following separation."  Thus, the examiner determined the Veteran's conditions were due to normal aging and were not related to his active military service.

The Board affords the April 2012 VA spine examination and opinion considerable probative weight, as it reflects the conclusions of a medical professional who examined the Veteran personally and reviewed the pertinent medical history.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Moreover, the examiner's opinion that the Veteran's spondylolisthesis is a congenital defect that pre-existed service is not only based on a review of radiological results, including X-ray, MRI, and CT scan results, consideration of the Veteran's statements and reported history, and a physical examination of the Veteran, but also contains a clear discussion of the underlying medical rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from its underlying reasoning).

Upon consideration of all of the evidence of record, the Board finds that the Veteran's spondylolisthesis constitutes a congenital defect and, as such, service connection for it is not warranted.  See 38 C.F.R. §§ 3.303(c), 4.9.  The Board has not overlooked the fact that a low back disorder was not shown at the time he was initially examined for service entrance, as the clinical examination of the spine was normal, and that he denied any low back problems.  However, and as noted above, the presumption of soundness does not apply to a congenital defect.  See Quirin v. Shinseki, 22 Vet. App at 397.


Moreover, the Veteran has not acquired any additional disability due to disease or injury superimposed upon such defect during service.  See VAOPGCPREC 82-90; Carpenter, 8 Vet. App. 240; Monroe, 4 Vet. App. 513.  Neither he nor his representative has specifically identified or argued that any current low back disorder was aggravated such that a superimposed disease or injury occurred during service or as a result thereof.  Id.  Indeed, there is no medical evidence of record indicating that any additional disease or injury stemmed from an aggravation of, or was superimposed upon, his low back congenital defect.  Although he now has DDD/DJD of his lumbosacral spine with disc protrusions, left foraminal narrowing, right lateral recess stenosis, and mild central canal stenosis, there is no evidence of record linking these current lumbar spine disabilities to any in-service event.  Indeed, to the contrary, the VA compensation examiner has specifically disassociated these current diagnoses from the Veteran's service and, in particular, from the type and extent of trauma he sustained to his low back during his service.  This examiner therefore accepted there was injury in service, just does not believe any of these diagnoses are a result or consequence.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied entirely on the absence of evidence in the Veteran's STRs to provide a negative opinion).

As to these diagnoses, the Board further notes that the first medical evidence of a non-congenital low back disorder occurred in 1995, with the first diagnosis of DJD not until even more recently in 1999.  Partly because of this lapse of so many years, indeed decades, the VA compensation examiner concluded the Veteran's disability was more likely the result of simple aging (getting older).  In the appropriate circumstance, such as here, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). 

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  So it is permissible in this circumstance for the Board to draw a negative inference from the absence of any documented complaints or findings in the intervening post-service evaluation and treatment records.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  Still though, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence, prior to when first shown, when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Here, because these disorders were not diagnosed during the Veteran's service, and because there is no medical evidence linking a non-congenital low back disorder to his active duty, service connection is unwarranted for osteoarthritis or any other low back condition on a direct-incurrence basis.  See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67.  Further, because his DJD (i.e., arthritis) of the low back was not diagnosed within one year following his separation from active service, service connection also is not warranted on a presumptive basis.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307; 3.309(a).  Finally, and as noted above, there is no medical link indicating the degenerative or arthritic pathology of his lumbar spine is causally related to his congenital defect, in that there is no evidence of a superimposed disease or an injury sufficient to cause such additional disorders.

The Board has considered the Veteran's contention that his current low back disorder is directly related to the March 1962 injury he incurred during active duty and the lay statements submitted on his behalf, including the August 2006 "buddy" statement from his fellow soldier and the fourteen letters from his family, friends, and acquaintances.  In this regard, he is competent to testify as to matters within his experience and personal knowledge, such as his symptoms and medical history.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent with respect to both the diagnosis and the etiology of a disability); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge).  However, as a layman, he does not have the medical training or expertise to provide a competent opinion as to whether his current low back disorder is related to his in-service injury, as this is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); see also Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  Here, the Board did indeed obtain a medical opinion concerning these determinative issues, and it was entirely unfavorable to the claim.  Thus, the Veteran's contrary lay opinion that his low back disorder was caused or aggravated by his active service is not competent, especially in comparison, and cannot by itself support his claim.  See Layno, 6 Vet. App. at 470 (holding that incompetent testimony must be excluded from the Board's consideration).

Similarly, the "buddy" statement and the letters submitted on the Veteran's behalf constitute competent lay evidence supporting his contentions regarding the injury he sustained during service and of the details of his low back symptoms.  See Davidson 581 F.3d at 1316; Kahana 24 Vet. App. at 434.  Those serving with and having a personal relationship with him are certainly competent to attest to his contentions regarding the details of his in-service injury and his complaints of pain in his lower back.  See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 434.  However, to the extent these statements also try and attribute his current low back condition to his service, they, too, do not constitute competent etiological evidence.  See Layno, 6 Vet. App. at 469-71; see also Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. 309.


The Board therefore accords more probative weight to the findings of the VA compensation examiner against a relationship between the Veteran's current low back disorder and service, as the examiner is medical professional qualified to make such a determination who reviewed the Veteran's STRs in detail, as well as his available VA medical records, and considered the Veteran's lay statements.  See King, 700 F.3d at 1345 (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question); see also Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a) versus (a)(2).  Additionally, as discussed above, although the record contains numerous treatment reports documenting complaints of back pain, there is no medical evidence indicating the Veteran's currently diagnosed low back condition, to include his spondylolisthesis, osteoarthritis, and degenerative changes, is related to or was aggravated by his military service.  See 38 U.S.C.A. §§ 1101, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304.  Thus, service connection for his low back disorder on a direct-incurrence basis is not warranted.  Id.

Additionally, since there is no indication of DJD (arthritis) in his low back, certainly not to a compensable degree of at least 10-percent disabling, within the required one-year grace period following his separation from military service, the Board also may not otherwise presume that his low back disorder was incurred during his service.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5003 (2013).  Thus, service connection is not warranted on this alternative presumptive basis, either.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137 38 C.F.R. §§ 3.307, 3.309(a).

The evidence, then, weighs against finding the Veteran's current low back disability was either directly or presumptively incurred in service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a low back disorder to include spondylolisthesis and osteoarthritis with associated pain is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.


ORDER

The claim of entitlement to service connection for a low back disorder, including spondylolisthesis and osteoarthritis with associated pain, is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs