Citation Nr: 1428601 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 09-29 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability, claimed as low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Nilon, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge in a hearing at the RO in May 2011. A transcript of the hearing has been associated with the claims file. The Board issued a decision in December 2011 that denied service connection for lumbar spine disability. The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision the Court vacated the Board's denial of service connection and returned the case to the Board for readjudication. The Board remanded the issue identified on the title page to the Agency of Original Jurisdiction (AOJ) in November 2013 for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's action in December 2011 remanded the following issues to the AOJ: entitlement to service connection for a psychiatric disorder, diabetes mellitus type 2, a skin disorder, a headache disorder, tingling and numbness, and entitlement to a total disability rating based on individual unemployability (TDIU). The AOJ has not yet completed the development action required by the Board's remand, and those issues have not been recertified to the Board for appellate review. FINDING OF FACT The Veteran's diagnosed lumbar spine disability was not shown in service or for many years thereafter, and there is no competent evidence linking the current disability to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). In this case, compliant VCAA notice was provided in a letter dated in September 2008, and the Veteran had ample opportunity to respond prior to the issuance of the December 2008 rating decision on appeal. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The RO has obtained service treatment records and post service treatment records. In November 2013 the Board remanded the case to the AOJ for the purpose of affording the Veteran a VA medical examination, which was performed in December 2013; the Board has reviewed the examination report and finds the AOJ substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has been afforded a Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c) (2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Acting VLJ identified the issue to the Veteran, and relevant testimony concerning events in service, treatment history, and symptomatology was elicited. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts he suffered a low back injury when he was kicked in the buttocks by a Drill Instructor during basic training. However, service treatment records show no complaint of or treatment for any low back injury or complaints. The Veteran's separation examination in August 1969 showed the spine to be clinically normal; in the corresponding self-reported Report of Medical History the Veteran specifically denied any history of painful joints, broken bones or recurrent back pain. In a November 2007 Statement in Support of Claim the Veteran stated he had fallen at work and broken his "tailbone" but was unable to remember the date. The Veteran was treated at King's Daughter Hospital, where X-ray of the spine showed subluxation of the lower vertebrae that had been present for years. The Veteran attributed this finding to having been kicked during basic training. The Veteran recalled that he had been kicked hard enough to almost pass out, but he did not seek medical attention for fear of being labeled a "sissy." (The Board notes at this point that the AOJ made repeated efforts to obtain treatment records from King's Daughter Hospital but was informed by that facility that any relevant records would have been routinely destroyed due to passage of time.) The file contains medical records from the Veteran's employer addressing the period November 1969 through January 1997. In November 1969 and March 1972 the Veteran had pre-employment physical examinations in which he specifically denied any previous back injury. In September 1994 the Veteran was treated for lumbosacral strain, but musculoskeletal evaluation in November 1994 showed no remaining deficit and the strain was characterized as "resolved." The file also contains a September 1994 radiological consultation report from Crockett Hospital, in which recent X-rays of the lumbosacral spine were compared to earlier studies that had been taken at King's Daughter Hospital in July 1987. The impression was that degenerative changes at L5 and S1 had progressed but the previous degree of spondylolisthesis was unchanged. Pars interarticulitis was present. The radiologist noted that such defects are usually congenital in nature although a few believe that these may be due to injuries in early childhood. The Veteran was urged to avoid heavy lifting, since this could cause increased slippage. Private treatment records from Dr. Richardson, addressing the period December 1969 through September 2007, show the Veteran presented in August 1994 complaining that his back hurt above the waistline; the Veteran was seeking light duty because his work entitled a great deal of lifting. Dr. Richardson diagnosed spondylolisthesis at L5-S1 and sent a letter to the Veteran advising him that spondylolisthesis is caused by long-term low back stress from heavy lifting; the principal course of treatment would be to avoid further stress/strain to the area. In November 1994 the Veteran stated he wanted to return to his usual work, but he again complained of back pain in October 1995. Otherwise, Dr. Richardson's 38 years of clinical records are silent in regard to low back complaints. During VA psychiatric examination in March 2008 the Veteran reiterated his account of having been kicked by a Drill Sergeant during basic training. The Veteran presented to Dr. Richardson in September 2008 complaining of neck and back pain after a motor vehicle accident. Radiographs of the lumbosacral and cervical spine at Crockett Hospital that were noted as having been taken after the Veteran's motor vehicle accident. Relevant to the lumbosacral spine, the clinical impression was mild degenerative changes of the lumbar spine and Grade I spondylolisthesis of L5 on S1 with disc space narrowing at L5-S1 level that was probably longstanding. No recent fracture or subluxation was suggested. The Veteran submitted a letter to VA in August 2009 that reiterated the incident in basic training during which he was kicked by a Drill Instructor. The Veteran stated he had suffered from back pain ever since that kick. The Veteran had an X-ray of the lumbar spine by VA in October 2010. The impression was congenital abnormality such as a grade I spondylolisthesis with bilateral spondylosis between L5 and S1 with secondary degenerative joint disease of the L5-S1 disc joint. The Veteran testified before the Board in May 2011 that during hand-to-hand combat training, conducted as part of basic training, a Drill Instructor kicked him in the buttocks repeatedly and broke his "tailbone;" the Veteran did not seek medical treatment because he did not want to appear weak. He also cited back strain associated with stacking heavy loads in his job as ammunition handler in an ordnance depot. He denied having any injuries to his back after discharge from service. The Veteran did not report his back pain at the time of his separation examination because he had been told he would be retained in service if he did so, and he just wanted to go home at that point. The Veteran had a VA examination of the spine in March 2012, performed by a VA physician who did not have access to the claims file, but noted the Veteran's account of having received a "broken tailbone" when kicked in the buttocks during service and the Veteran's admission of having re-fractured his "tailbone" in a workplace injury in the 1980s. The examiner performed a clinical examination and noted observations in detail. The examiner diagnosed spondylosis of L5 and S1 with secondary degenerative joint disease and stated an opinion that the Veteran's disability is not likely related to service, but the examiner also stated that review of the claims file might show different evidence. The Veteran had another VA examination of the spine in December 2013, this time by an examiner who reviewed the claims file. The Veteran again reported having been kicked in the buttocks during service with continual pain ever since, and also reported having lifted heavy ammunition boxes in service. The Veteran reported his back hurt during service but he did not go on sick call. After service he was treated by Dr. Richardson from 1960 until approximately 2008-2009, including medication for back pain. The Veteran reported having re-injured his back in the 1980s. The examiner performed a clinical examination and noted observations in detail. Current X-ray of the spine showed no traumatic sequelae, longstanding unilateral L5 spondylosis with grade II L5-S1 anteriolysthesis and only mild-to-moderate hypertrophic spondyloarthropathy changes; otherwise the study was unremarkable for age and interval examination when compared with the previous study in October 2010. The examiner diagnosed degenerative arthritis of the spine and stated an opinion that the disability is not likely incurred in or caused by service. As rationale, the examiner stated there is no documentation of any back injury in service and no documentation of any complaint of back pain for many years after discharge from service. In regard to the Veteran's report of heavy lifting in service, the most common injury from repetitive heavy lifting is degenerative disc disease, which the evidence does not establish that the Veteran has. The Veteran's current degenerative joint disease is most likely related to his 26 years of factory work after discharge from service and his many years of construction/remodeling work since service. On review of the evidence above, the Board finds at the outset that the Veteran has been competently diagnosed with a disorder of the lumbosacral spine, characterized in March 2012 as spondylosis of L5 and S1 with secondary degenerative joint disease and in December 2013 simply as "degenerative arthritis." Accordingly, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The Veteran has reported a specific traumatic injury during service (being kicked in the buttocks) and has also reported non-traumatic wear-and-tear associated with heavy lifting. An injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis, and, where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the most competent and probative medical opinion is provided by the VA examiner in December 2013, who considered the Veteran's assertions but stated the Veteran's claimed disability is not likely related to service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Careful review of the December 2013 examination report shows all three criteria of Nieves-Rodriguez are satisfied; accordingly, the Board may rely upon the examiner's opinion in adjudicating the appeal. The file contains a letter from Dr. Richardson to VA in September 2009 asserting that the Veteran's low back pain began after he was kicked in the sacral area by his Drill Instructor. Dr. Richardson's letter does not explain why his own clinical notes are silent in regard to any reports of back pain prior to August 1994. Dr. Richardson's letter is silent as to how the low back disorder he diagnosed in 1994 (spondylolisthesis at L5-S1) may be related to a remote injury to the coccyx (S5); the letter is also silent in regard to Dr. Richardson's own characterization spondylolisthesis in 1994 as being caused by long-term low back stress from heavy lifting (and thus non-traumatic). Dr. Richardson's letter is a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, which does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Further, in the absence of any reasoned analysis, Dr. Richardson's letter lacks probative value under the criteria of Nieves-Rodriguez. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). For the reasons cited above, the Board finds the medical opinion of the VA examiner to be more probative than that of Dr. Richardson. The Board acknowledges that Dr. Richardson treated the Veteran for decades, and is thus well acquainted with the Veteran's health status, but the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). As the Veteran has been diagnosed with arthritis, the Board has considered whether service connection may be granted on a presumptive basis under 38 C.F.R. § 3.309(a). However, there is no clinical record of arthritis during service. Whereas the Veteran denied previous back injury during post-service examinations in November 1969 and March 1972, and whereas the earliest reference to X-ray evidence of "degenerative changes" dates from July 1987 (nearly 20 years after discharge from service), the Board cannot find that arthritis was present to a compensable degree within the first year after discharge from service. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his testimony before the Board, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran in this case has offered lay evidence to show back problems during service and to assert a relationship between his symptoms in service and the current back disability. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran is accordingly competent to report having been kicked in the buttocks during service, even though the incident is not documented. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Although the Veteran is competent to report having been kicked in the buttocks during service, the Board finds that his report of resulting chronic symptoms is not credible because such report is internally inconsistent with his Report of Medical History at discharge in which he denied back pain and is also inconsistent with post-service examinations in November 1969 and March 1972 in which he specifically denied any previous back injury. Further, there is no medical evidence of record showing a previous traumatic injury to the region of the "tailbone" (coccyx and S5). The Veteran's account of lifting heavy loads of ammunition is consistent with his military occupational specialty and is accordingly credible. Accordingly, the Board must consider whether his lay evidence is competent to assert a relationship between heavy lifting in service and his claimed disability. When considering whether lay evidence is competent to show a nexus between service and a current disability the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The record in this case demonstrates that the Veteran's low back disability is multi-factorial, with contributions by a congenital abnormality (for which service connection cannot be considered), long-term heavy lifting at his workplace, workplace accident and motor vehicle accident. Thus, the etiology of the Veteran's low back disability is a complex medical question that is not within his competence as a layperson. Based on the evidence and analysis above, the Board finds the Veteran does not have a current lumbosacral spine disability that was incurred in service or is otherwise related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ J. MACIEROWSKI KIRBY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs