Citation Nr: 1445461 Decision Date: 10/14/14 Archive Date: 10/22/14 DOCKET NO. 08-39 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service from February 1973 to February 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. No hearing was held, as the Veteran withdrew his initial request for a Board hearing in August 2009, and he has not submitted a new request for a Board hearing. 38 C.F.R. § 20.704 (2013). In June 2010, the Board remanded this case to the RO for additional development. In March 2013, the Board issued a decision denying service connection for a low back disorder. The Veteran appealed from this denial to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2013 Order, pursuant to a Joint Motion for Remand by the parties, the Court vacated and remanded the March 2013 decision to the Board with respect to the claim for a low back disability. In May 2014, the Board remanded the case to the agency of original jurisdiction (AOJ) for compliance with the Court's directives, as contained in the Joint Motion. The Veteran's claims file is now entirely contained in VA's electronic processing systems of Virtual VA and the Veterans' Benefits Management System (VBMS). FINDINGS OF FACT The weight of the most probative evidence is against a finding that the Veteran's current low back disability was incurred or aggravated during service; that arthritis or organic disease of the nervous system manifested to a compensable degree within one year after service, or that there was continuity of symptomatology; or that the current disability was otherwise related to in-service injury, disease, or treatment. CONCLUSION OF LAW The criteria to establish service connection for the current low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran was provided full notice regarding his service connection claim, including in a September 2010 letter, as directed in a prior Board remand. The claim was subsequently adjudicated, most recently in a July 2014 supplemental statement of the case, thereby curing the notice timing defect. There is no argument or indication of any prejudice due to any possible notice defects. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Concerning the duty to assist, the Veteran's service treatment and personnel records, as well as all identified and available post-service records, have been obtained and considered. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As directed in a prior Board remand, the AOJ requested the Veteran to identify any pertinent, outstanding records, and to provide authorization for VA to obtain any non-VA records, or to provide copies of those records. In response, the Veteran provided additional private records. VA treatment records were also obtained. In addition, records concerning the Veteran's disability benefits from the Social Security Administration (SSA) have been obtained and considered. To the extent that any pertinent records may remain outstanding, VA made appropriate attempts to obtain them, given the Veteran's failure to identify them or authorize VA to obtain any such non-VA records. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran was afforded VA examinations to determine the nature and likely etiology of his low back disability, as directed in the prior Board remands, as well as in the Court's Order via the terms of the Joint Motion. 38 C.F.R. §§ 3.159(c), 3.326. The Joint Motion found that the December 2012 VA examiner had not provided a current diagnosis but, rather, stated only that the Veteran had "minor at best" back problems. The Board finds that the December 2012 VA examiner did, in fact, diagnose osteoarthritis, sprain or strain of the back, spondylolisthesis, and scoliosis based on medical records and imaging studies. Nevertheless, the Veteran was afforded a new VA examination in July 2014, including additional imaging studies, and the VA examiner further clarified the Veteran's current diagnoses as degenerative arthritis and degenerative disc disease of the lumbar spine, with likely related radiculopathy of the lower extremities, based on review of the entire claims file and all available lay and medical evidence. The Joint Motion also stated that the December 2012 VA examination was inadequate because the report failed to "explain why" the Veteran's in-service back symptoms, treatment, and diagnosis were not related to his current back condition, again noting that the prior VA examiner referred to the Veteran as having "minor at best" back problems. After the Joint Motion, the July 2014 VA examiner summarized the available evidence regarding the nature and timing of the Veteran's low back symptoms, including injuries and symptoms during service and after service consistent with the Board's independent review of the evidence. The examiner stated that there was no chronic lumbar spine condition in the service records, and opined that the Veteran's current low back disability was less likely than not caused by or due to his injury or symptoms in service. The examiner explained, "A one time back strain [in service] without evidence documented of chronicity would not cause abnormal biomechanical forces leading to his current back pathology." With regard to manifestations of an enumerated chronic disability (arthritis or organic disease of the nervous system) within one year after service discharge, the July 2014 examiner was unable to offer an opinion without resorting to speculation because there were no medical records relating to that time period. There is no argument that this report is inadequate, and the Board finds the report to be substantial compliance with the remand, and sufficient for a fair adjudication. The Board observes that the Veteran's lay reports of pain and other observable symptoms continuously since 1973, to include within one year after service, cannot be rejected based solely on the lack of corroborating medical evidence; however, a lack of medical documentation may be considered along with the other evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, a VA examiner's conclusions may be found inadequate if they rely solely on a lack of medical records. Moreover, a VA examiner's conclusions or opinions are only probative if there are based on a factual history that is consistent with the Board's credibility findings. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (noting that reliance on a veteran's statement renders a medical report not credible if the Board rejects the statements of the veteran). Further, the Board has an obligation, as fact finder, to compare the Veteran's lay statements for the purposes of this appeal with the other available evidence, in order to determine the weight of such evidence. Buchanan, 451 F.3d at 1337. ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). As discussed below, the Board finds the Veteran to be not credible with regard to having continuous low back symptoms after his in-service injury in 1973, to include within one year after discharge from service. The Board also made the same credibility finding in its March 2013 Board decision that was vacated pursuant to the Court's Order (adopting the terms of the Joint Motion), based on a similar credibility analysis as presented below. Notably, the Joint Motion did not reference any inadequacies in the Board's reasons and bases regarding such credibility findings, or the Board's comparison of the lay and medical evidence of record. The July 2014 VA examiner's conclusions are consistent with the Board's credibility findings herein regarding the lay evidence as compared with the medical and other evidence. Accordingly, the VA examiner's reference to a lack of documented or medical evidence to support the Veteran's assertions does not render the report inadequate under the circumstances of this case. Rather, these statements show consideration of an accurate factual history, consistent with the Board's credibility findings, as required for an adequate and probative medical opinion. See Coburn, 19 Vet. App. at 432; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (an adequate VA examination considers the relevant history, provides a sufficiently detailed description of the disability, and provides a rationale to support the conclusions or opinions offered). Further, the VA examiner's conclusion that an opinion could not be offered regarding manifestations within one year after the Veteran's service discharge was based on a review of all procurable and available evidence. To the extent that the examiner may not have considered the Veteran's lay reports of symptoms in that time period, this results in no prejudice here, as the Board finds such lay evidence to be not credible and not probative. As the conclusion was based on the limits of medical knowledge or possibility, as opposed to the examiners' particular limitations, and the conclusion constitutes a valid opinion. Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). The prior remand directives were substantially completed, and no additional notice or development action is required for a fair adjudication. In particular, there is no indication that further development would be reasonably likelihood to assist in substantiating the Veteran's claim. Another remand would serve no useful purpose, as there is no indication it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. There will be no prejudice by a decision at this time. II. Analysis Service connection will be granted for disability resulting from a disease or injury that was incurred in or aggravated by service, even if the disease was first diagnosed after service, as long as the evidence demonstrates that it was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1113(b), 1131; 38 C.F.R. § 3.303(a), (d); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain enumerated diseases, including arthritis and organic disease of the nervous system, will be service connected on a presumptive basis if they manifested to a compensable degree within one year after active duty. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by competent and credible evidence of continuity of symptomatology since service for such an enumerated chronic disability. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any material issue; or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran contends that he has a current low back disability as a result of injury during service in July 1973. In his August 2007 claim, he reported that his back was in traction for 1-3 weeks and he was on "medical hold" for eight weeks. The evidence of record clearly shows a current low back disability. As clarified by the July 2014 VA examiner, the Veteran's current diagnoses are degenerative arthritis and degenerative disc disease of the lumbar spine, with lower extremity radiculopathy that is at least as likely as not related to the lumbar spine disorders. These findings are also consistent with the other medical evidence, such as a February 2007 examination for aid and attendance (noting degenerative changes of the thoracic vertebrae, and chronic low back pain with radicular pain in the right lower leg), an August 2007 CT scan, and October 2007 and August 2010 x-rays. The evidence also clearly establishes treatment for low back pain during service in 1973, through the Veteran's lay statements and consistent service records in this regard. However, the evidence shows significant post-service injuries to the low back, and there are inconsistent statements regarding the timing of symptoms after the in-service injury. Considering all available evidence, the Board finds that service connection is not warranted for the Veteran's current low back disability. Preliminarily, the Board notes that, although the Veteran reported injuring his back in 1967 (prior to service) in an August 1973 motion to reconsider the decision in MEB proceedings, the January 1973 enlistment examination found no clinical abnormality and he did not report recurrent back pain at that time. Therefore, he is presumed to have been in sound condition upon entry into service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). There is no clear and unmistakeable evidence that the Veteran had a preexisting low back disability, or that any such condition was not aggravated beyond the natural progress of the disease during service. Therefore, the presumption of soundness is not rebutted, and service connection will be considered based on incurrence, not aggravation. Id.; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The Veteran is competent to report his observable low back symptoms and history, to include continuous symptoms since injury in service and treatment over the years. However, he is not competent to diagnose a specific low back disability, to include arthritis or organic disease of the nervous system, or otherwise link his current disability to service, in the absence of continuity of symptomatology. Rather, this question requires medical expertise to interpret the tests and other evidence given the Veteran's complex medical, work, and social history, including significant post-service injuries. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the Board finds the Veteran to be not credible with respect to having continuous or persistent low back symptoms, as opposed to intermittent symptoms, after the 1973 injury and treatment in service because these reports are inconsistent with the other, more probative evidence, as discussed below. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (a witness's credibility may be impeached by a showing of interest, bias, or inconsistent statements). Specifically, service treatment records documented the Veteran's complaints of low back pain in 1973. In a June 1973 examination for Medical Evaluation Board (MEB) proceedings, the Veteran reported "don't know" regarding recurrent back pain. No detail was provided, but no pertinent clinical abnormalities were found. On August 1, 1973, x-rays were conducted, showing a transitional body at the lumbosacral junction and no fracture. In an August 1, 1973, request for reconsideration of the MEB decision, the Veteran stated that he wanted to be discharged, in part because he had injured his back while lifting weights in 1967 (prior to service) and also in August 1973. Two weeks later, on August 15, 1973, the Veteran reported falling down two steps two days earlier. The impression was acute lumbosacral strain, he was treated with bed rest and medications for five days, and he reported that such treatment provided relief at that time. On August 20, 1973, x-rays conducted for acute low back pain showed no significant abnormality. The Veteran was restricted from overhead lifting and other movements due to finger amputations, but there is no documented profile or restrictions for the low back. The Veteran subsequently reenlisted for service, but he again underwent MEB proceedings in 1976. An April 1976 evaluation for such proceedings noted that the Veteran had previously strained his back during service, and that this "ultimately resolved." The Veteran reported that he continued to have occasional back pain when lifting objects or getting into a certain position. He was counseled on care, and it was noted that he should have no further difficulties if he took appropriate care. Physical examination of the low back was normal at that time. At his January 1977 examination for discharge from service, the Veteran reported a history of hurting his back in 1973, but he again checked "don't know" regarding existence of recurrent back pain. Although he reported arthritis, bone or joint or other deformity, and loss of finger, these were noted to be related to amputated fingers. Clinical evaluation of the spine showed no abnormalities. In February 1977, the Veteran reported that there had been no change in his condition. The Veteran initially filed a claim of service connection for a low back disability in February 1977, reporting in-service injury in July 1973. VA requested any line of duty determinations for a low back injury in service, and the service records as summarized above were forwarded in response that request in July 1977. There are no medical records available within the year after the Veteran's service discharge. Post-service medical records reflect that the Veteran had a significant low back injury while at work in the early 1980s. He described his work injury in a private neurologic treatment session in December 1993, stating that he had back problems after injuring himself in 1986 while picking up objects. Evaluation at that time, including a myelogram, showed a bulging disc with no need for surgery. The Veteran reported undergoing physical therapy and returning to work as an electrician in 1988. He reported being restricted to lifting no more than 20-25 pounds, and that he had learned to squat while lifting. The December 1993 neurologist assessed low back pain with findings suggestive of L5 radiculopathy. Similarly, a January 1994 evaluation for the Veteran's SSA disability claim referenced his report of back problems with an approximate onset date of 1986. The October 1994 SSA decision then summarized the Veteran's testimony that he injured his back in 1980, he was off work for 18 months at that time, and he was restricted to no lifting over 20 to 25 pounds. The Veteran testified that he had been having a recurrence of back pain and had taken many medications since that time. The evidence also shows that the Veteran has had frequent falls and suffered from frequent violent seizures since March 1992 that have resulted in back injuries. For example, the Veteran reported to the SSA in August 1993 that he would black out and wake up with his joints hurting. A September 1993 private record noted that the Veteran fell off a ladder during a seizure in March 1993. He was also noted to have a history of chronic low back pain, with reference to the 1986 myelogram showing a bulging disc. In a March 1998 private record, the Veteran complained of seizures for six years, as well as confusion and hurting his back during violent seizures, and a history of low back pain. In November 2006, the Veteran reported having seizures for 15 to 17 years, and he was noted to have injuries to the back resulting in primarily right-sided back and leg pain. Several more recent private records, such as in May 2010, noted that the Veteran was having frequent falls. During the December 2012 VA examination, the Veteran reported injuring his back after basic training when he was on leave and fell on a porch, that he received conservative treatment for 3-4 days at a civilian facility, and then he was sent back to the base. The Veteran also reported a post-service back injury for which he was out of work for 18 months, that he worked as an electrician until he had a seizure in 1992, and he received SSA disability benefits in 1994 for seizure and the low back. Although the Joint Motion found this prior VA examination to be inadequate with regard to current diagnosis and an opinion regarding any relationship to service, the Veteran's reports as to the nature and timing of his symptoms remain probative. During the July 2014 VA examination, the Veteran reported being treated with traction after injury in service, and that he has had back problems since that time. He also reported being "let go" after an injury at work while lifting a pipe. Upon consideration of all pertinent lay and medical evidence, the Board finds the Veteran to be not credible with regard to having continuous or persistent low back symptoms after his in-service injury in 1973. Despite his assertions for the purposes of this appeal, it is reasonable to infer that, if the Veteran had continued to have persistent or continuous low back symptoms after 1973, he would have reported them during several service evaluations after that time instead of checking "don't know" regarding recurrent back pain. The Veteran's prior low back strain was also noted to have resolved in the April 1976 MEB proceedings, although the Veteran reported occasional pain when lifting items or moving in a certain position. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."); United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) ("[Fact finders] may properly use their common sense and evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings." (internal quotations omitted)). More importantly, if the Veteran had continuous or persistent low back symptoms during the years after his 1973 service injury and prior to his on-the-job work injury in the early 1980s, it is reasonable to infer that he would have reported such symptoms as part of his medical history when seeking post service treatment. Instead, he expressly stated for treatment purposes in the 1990s that his chronic low back symptoms began after the work injury in the early 1980s, and that he missed 18 months of work at that time. He did not mention his previous injury during service for treatment purposes, or for the purposes of his SSA disability claim. The Board finds the above medical records, which were made many years prior to the Veteran's current claim for VA compensation, to be highly probative as to the timing of his low back symptoms. See Fed.R.Evid. 803(4) (generally finding statements for the purposes of medical diagnosis or treatment to be reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (the Board may cite to the Federal Rules of Evidence where they will assist in the articulation of the reasons for the Board's determinations); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (lay testimony may not be ignored simply because the witness is an interested party, but such interest in the outcome may affect the credibility of testimony). Additionally, there is no indication of any treatment for low back symptoms or disability after service until the early 1980s. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during military service, which resulted in a chronic or persistent disorder). Moreover, the Veteran's memory as to the frequency and timing of his low back symptoms appears to be faulty, possibly due to the passage of time; therefore, he is not a reliable historian and is not credible in this regard. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). In light of the most probative and persuasive evidence as summarized above, based on reasonable inference, the weight of the record is against a finding that the Veteran had continuous low back symptoms after his 1973 injury in service, to include within the one year following service. Rather, it is reasonable to infer that his persistent low back symptoms had resolved by the time of his discharge from service in February 1977. Further, the Board finds that the Veteran's persistent or chronic low back symptoms began after his on-the-job injury in the early 1980s. Again, the Veteran's lay statements of continuity for the purposes of his claim for VA benefits are inconsistent with the other evidence. His treatment records during service and after the 1986 work injury and subsequent low back injuries are more probative than his reports during this appeal regarding the timing of his low back symptoms because they were made contemporaneous to the time when he alleges that his symptoms began or persisted, in order to receive proper care, and many years prior to his claim for VA benefits. See Caluza, 7 Vet. App. at 511; Fed.R.Evid. 803(4); Rucker, 10 Vet. App. at 73; see also Buchanan, 451 F.3d at 1337 (noting the Board's role as a fact finder to determine if lay evidence is credible and weigh the evidence of record); Bastien, 599 F.3d at 1306; Vasquez, 677 F.3d at 692. There is no showing of arthritis or any related neurological disorder (to include organic disease of the nervous system) diagnosed in service or within one year after service. The most probative evidence weighs against a finding of manifestations of any such disability to a compensable degree within one year after the Veteran's discharge from service, or by February 1978, or continuity of symptomatology, based on the Board's credibility findings herein. Therefore, presumptive service connection cannot be granted for the Veteran's current low back disability under the chronic disease provisions. See 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d at 1338-40. Additionally, there is no competent evidence linking the Veteran's current disability to service. The July 2014 VA examiner gave a negative opinion in this regard, and this opinion is highly probative because it considered all pertinent evidence and applied medical expertise to an accurate factual history that is consistent with the Board's credibility findings herein. Nieves-Rodriguez, 22 Vet. App. at 304; Coburn, 19 Vet. App. at 432. There is no contrary medical opinion or other medical evidence of record to rebut the VA examiner's opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Specifically, the July 2014 VA examiner's report reflects that he considered the pertinent lay and medical evidence as summarized above, including the Veteran's assertions that his low back problems began with his in-service injury in 1973 and continued after that time. The examiner also considered the notations in the service records that the Veteran's prior back strain had resolved as of January 1977, and the evidence concerning post-service low back injuries, symptoms, and treatment from the 1980s forward. The examiner stated that there was no chronic lumbar spine condition shown in service, and opined that the Veteran's current low back disability was less likely than not caused by or due to the injury or symptoms in service. The examiner explained, "A one time back strain [in service] without evidence documented of chronicity would not cause abnormal biomechanical forces leading to his current back pathology." With regard to manifestations of an enumerated chronic disability (arthritis or organic disease of the nervous system) within one year after service discharge, the July 2014 examiner was unable to offer an opinion without resorting to speculation because there were no medical records for that time period. Again, the examiner's statements regarding the Veteran's low back symptoms during and after service, to include a lack of chronicity or continuity of symptomatology, are consistent with the Board's review of the evidence and credibility findings herein. The Board relies herein on the July 2014 VA examiner's medical findings and conclusions, together with the Board's credibility findings and independent review of the evidence. Moreover, although the Joint Motion found the December 2012 VA examiner's report to be inadequate, the Board observes that two VA examiners have now separately found, based on a review of similar lay and medical evidence, and with notations consistent with the Board's credibility findings herein, that the Veteran's current low back disability is not likely related to his military service. Again, the Joint Motion did not find fault in the Board's prior credibility determinations or analysis, and the Board makes a similar analysis herein. Although the Veteran believes that his current low back disability is due to his injury in service, he is not competent to offer an opinion as to the causation of his current disability. Rather, this question requires specialized knowledge, training, or experience due to the Veteran's complex medical history and the complex nature of the spine. As noted above, he had a significant post-service work injury, frequent violent seizures, and multiple falls, and the Board finds herein that he is not credible with respect to continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77. In sum, the weight of the most probative evidence is against a finding of a chronic or persistent low back disability during active service, or arthritis or organic disease of the nervous system to a compensable degree within one year after service, and there is no competent evidence linking the Veteran's current disability to service. As such, the preponderance of the evidence is against service connection under any raised theory, and the claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs