Citation Nr: 1414794 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 11-26 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active military duty from May 1968 to September 1969, with a prior six months of active duty training with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs Regional Office (RO) in Salt Lake City, Utah, in which the RO denied the Veteran's claim for service connection for a lumbar spine disorder. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a hearing at the RO in February 2012. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran does not experience a chronic lumbar spine disorder that had its clinical onset during service or is otherwise related to active duty. CONCLUSION OF LAW The Veteran does not have a lumbar spine disorder that was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in March 2010. See id. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and what types of evidence are necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and lay statements of the Veteran, as well as post-service treatment from VA and private treatment providers. The Veteran has also submitted a letter from a nurse practitioner with VA's orthopedic spine surgery service, dated in March 2011, in support of his claim. The evidence of record also contains an examination requested by VA and performed in September 2011. The Board finds that the VA examination reports are thorough and contain sufficient information to adjudicate the issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this regard, the Board notes that the Federal Circuit and the Court have both specifically rejected the "treating physician rule." See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Instead, the Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as 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. 444, 448-49 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Relevant medical evidence consists of the Veteran's service treatment records as well as records of his post-service treatment with both private and VA treatment providers. The Veteran has also undergone VA examination in September 2011 and has submitted a statement from a nurse practitioner with VA's orthopedic spine surgery service dated in March 2011. Review of his service treatment records reflects that, at his February 1966 pre-induction report of medical history, the Veteran was noted to have incurred "smashed vertebrae" that occurred in a 1961 car accident. The report indicates that the Veteran continued to be treated for the injury but that it was "not disabling." At a February 1966 medical examination, the Veteran was found to have no abnormalities of the spine or musculoskeletal system. Further reports of medical examination conducted in April 1968 and August 1969, at the time of the Veteran's' separation from active duty, also found him to have no abnormalities of the spine or musculoskeletal system. Similarly, on reports of medical history conducted in April 1968 and August 1969, the Veteran did not report any problems with his back. He specifically denied having or having had arthritis, lameness, or bone or joint deformity. Service personnel records document that he was transferred from operating a tractor to operating a crane in November 1968; there is no indication of why that transfer occurred; similarly, there are no records of any treatment for or complaints of back pain during service. Post-service treatment records from private providers indicate that the Veteran was seen as early as December 1997 for complaints of low back pain after lifting boxes. He again sought treatment in 2001 and 2002 for what was diagnosed in November 2001 as lower back strain and sacroiliac dysfunction. At that appointment, the Veteran specifically denied any history of low back pain. He was again seen in August 2005 for complaints of low back pain that he believed began after he had a procedure to treat kidney stones. He underwent a CT scan of that time, which revealed degenerative disc disease and degenerative changes in the lumbar spine. During that appointment, the Veteran complained of a "long history of intermittent back pain," although no mention of his time in service was made. Similarly, post-service VA treatment records reflect that he underwent radiological study of the lumbar spine in November 2008, which revealed anterolisthesis and degenerative joint disease. He also underwent MRI study of the spine in September 2009, which revealed degenerative changes and stenosis in the lumbar spine. In October 2009 and again in January 2010 the Veteran was seen for orthopedic surgery consults but was not yet deemed a surgical candidate. He was diagnosed at those visits with spondylolisthesis with instability and spinal stenosis. The Veteran has also submitted a letter from a nurse practitioner with the VA orthopedic spine surgery service, who reviewed the Veteran's VA treatment records and stated in March 2011 that the Veteran's current lumbar spine problems are "as likely as not" due to his in-service experiences. In so finding, the nurse practitioner relied only on the Veteran's VA treatment records, which dated only back to November 2010,and the Veteran's own reported history. The Veteran underwent VA examination in September 2011 concerning his claimed lumbar spine disorder. At that time, he reported that his back began hurting while he worked as a bulldozer operator in Vietnam and had continued to bother him since that time. The examiner noted the February 1966 report of a motor vehicle accident leading to a "crushed vertebra" and recorded the Veteran's report that he had incurred no such injury prior to service. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine and opined that the disorder is less likely than not related to service. In so finding, the examiner acknowledged that the Veteran denied having been involved in a car wreck prior to service but also noted that there were no reports of any back pain in service. The examiner looked to the 39-year gap between the Veteran's separation from service and his first VA treatment for back pain in 2008 and reasoned that his current back disorder is "more likely than not the result of the natural aging process." The examiner also acknowledged the March 2011 letter from the Veteran's VA provider but noted that that opinion relied only on the Veteran's subjective history and did not have access to his service treatment records, rendering the opinion less probative. The Veteran has stated on multiple occasions, including at his February 2012 hearing before the undersigned Veterans Law Judge, that he first developed back pain in service while operating heavy equipment in the jungles of Vietnam. He and his wife both testified that he has complained of back pain since he returned from Vietnam and has periodically sought treatment for back problems since that time. He also stated that he was not in a car accident prior to service, contrary to the February 1966 pre-induction report of medical history, and that he had incurred no injuries to his back either prior to service or after his separation from active duty. In addition, his mother and two siblings submitted statements in January and February 2012 in which they each stated that the Veteran had never been involved in a motor vehicle accident prior to service. Upon careful review of the record, the Board finds that the competent and probative evidence of record weighs against a finding that the Veteran has a chronic lumbar spine disorder that is etiologically linked to his time in service. In so finding, the Board again notes that an evaluation of the probative value of medical evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board places the greatest probative weight on the September 2011 VA examiner's finding that the Veteran does not have a lumbar spine disorder that began in or is otherwise linked to service, rather than on the March 2011 treatment provider's findings concerning the Veteran's lumbar spine disability. In so finding, the Board notes first that the September 2011 VA examination contains clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a "medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Specifically, the September 2011 VA examiner in this case conducted not only a thorough a physical examination but also a complete record review when concluding that the Veteran's relevant medical history and symptom presentation did not lead to a conclusion that his current lumbar spine disorder is etiologically linked to his time in service. Rather, the examiner found the disorder to be a product of the aging process. Although it is clear that the Veteran does in fact suffer from a lumbar spine disorder currently, the September 2011 VA examiner specifically found, upon extensive record review and examination-including consideration of the Veteran's contentions regarding the continuity of symptomatology from his time in service to the present-that his current lumbar spine disorder is not etiologically linked to service. In finding that the September 2011 VA examiner's negative opinions are more probative than the findings of the VA treatment provider as set forth in the March 2011 letter, the Board observes that the VA nurse practitioner relied almost exclusively in his findings on the Veteran's self-reported history in concluding that he had displayed continuous lumbar spine symptomatology from his time in service to his current diagnosed disorder. The strongest evidence in favor of the claim is the finding from the nurse practitioner in March 2011 that the Veteran first injured his back in service and that his current lumbar spine disorder is, at least in part, a continuation of his in-service back problems that have continued to the present. The Board finds that this evidence is outweighed by the medical evidence from the September 2011 VA examiner's reasoned opinion, based on a thorough review of the entirety of the record as well as physical evaluation of the Veteran, that his currently diagnosed lumbar spine disorder is not likely related to service. Importantly, the September 2011 VA examiner's opinion is not based solely on the Veteran's reported history but instead considers both his in-service treatment (or lack thereof) and post-service records documenting no chronic lumbar spine disorder prior to 2008. Importantly, the VA examiner considered the Veteran's contentions regarding continuity of symptomatology but nevertheless concluded that his current lumbar spine disorder is related not to service but to the Veteran's advancing age. In arriving at a decision as to whether the Veteran's current lumbar spine disorder is linked to his time on active duty, the Board thus finds persuasive the medical opinion provided by the VA examiner in September 2011. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he is not competent to say that any such symptoms were a result of or worsened by any incident in service or were of a chronic nature to which any current disability is attributable. The Veteran has contended on multiple occasions that he has a lumbar spine disorder that is related to his service. The Board has considered this contention; however, in adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to," and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to support a grant of service connection. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question of whether current lumbar spine pathology, identified as degenerative disc disease of the lumbar spine, is related to military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, although the Veteran is competent to describe his experiences in service and his current symptoms, the Board accords his statements regarding the nature and etiology of his disability little probative value, as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical diagnosis or causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). As for the statements of the Veteran and his wife that he first developed a chronic back disorder while in service that has continued to the present, the record does not support such a contention. No back injury or any complaints of back pain are documented in the service treatment records, and his separation reports of medical history and examination both reveal that the Veteran had no abnormalities of the spine and made no complaints of any back problems when he left service in 1969. The Veteran denied having or having had arthritis, lameness, or bone or joint deformity on his Report of Medial History prior to service discharge. It would seem likely that if the Veteran had significant back symptoms since prior to service discharge, he would have sought medical treatment, made pertinent complaints when asked about his orthopedic status, or it would have been noticed by clinicians examining him. The Board is cognizant of the fact that the Veteran and his wife feel that he has a lumbar spine disability due to service; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to his time in service. The Board further acknowledges the Veteran's wife's expertise as a Licensed Practical Nurse (LPN) but notes that even medical experts require x-rays and other diagnostic measures to correctly identify the nature of spinal disease such as that experienced by the Veteran. Additionally, despite the Veteran's spouse's training as an LPN, her testimony both in letters to VA and before the undersigned Veterans Law Judge addressed not etiology but the continuity of the Veteran's symptoms-which was specifically considered by the September 2011 VA examiner. To the extent that her statements could be construed as a medical opinion, they are less probative than the September 2011 VA examiner's opinion that followed a records review and examination of the Veteran. In this case, the Board accepts the September 2011 VA examiner's diagnosis and opinions as being the most probative medical evidence on the subject, as they are based on a review of all historical records and physical examination of the Veteran and contain detailed rationale for the medical conclusions reached. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the September 2011 VA examiner's opinion was based on a thorough review of the applicable record-including the Veteran's service treatment records and his contentions regarding continuity of symptomatology-the Board finds that the September 2011 VA examiner's opinions are the most probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). In particular, the September 2011 VA examiner independently reviewed the record, including the Veteran's contentions concerning the onset of back pain in service; examined the Veteran; and concluded that the Veteran's lumbar spine disorder is not likely related to service. The examiner offered a clear rationale for this conclusion, based not only on the Veteran's contentions but on the evidence as set forth in his private and VA treatment history as well as on the examiner's own medical expertise. Because the Board finds these opinions to be more probative than the evidence of record suggesting that the Veteran currently experiences a lumbar spine disorder related to service, the Board finds that the Veteran's claim must be denied. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs