Citation Nr: 1511557 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 08-33 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for status post herniated disc, L5-S1, with fusion and laminectomy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran had active duty in the Marine Corps from July 1968 to July 1972. He was awarded a Combat Action Ribbon for this period of service. The Veteran had additional service in the Marine Corps Reserve from July 1972 to January 1973, and in the Army National Guard from January 1973 to January 1976, which included a period of active duty for training (ACDUTRA) from May 25, 1975 to June 8, 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2009 rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2010, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at his local RO. A transcript of the hearing is of record. In March 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2014, in accordance with 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which they did that same month. FINDINGS OF FACT 1. A back disability, diagnosed as status post herniated disc, L5-S1, with fusion and laminectomy, first manifested many years after service and there is no competent and probative evidence of record which establishes that this disability is related to an event or injury in active service. 2. In July 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal on the claim for a TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for status post herniated disc, L5-S1, with fusion and laminectomy have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). 2. The criteria for the withdrawal of a substantive appeal on the claim for a TDIU have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters sent in June 2002 and October 2007 satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. The Veteran's active duty service treatment records and post-service VA and non-VA medical treatment records have been obtained. Medical records obtained in connection with the Veteran's claim for disability benefits from the Social Security Administration (SSA) have also been associated with the claim file. The Veteran's treatment records from his periods of service in the Marine Corps Reserve and the Florida Army National Guard are unavailable, and all efforts to obtain them have been unsuccessful. The Veteran was notified that his records were missing in December 2012 and a formal finding was issued in March 2013. The Veteran was asked to provide copies of any service treatment records in his possession, and a Report of Contact in March 2013 shows he denied having any additional service records in his possession. Where service records are unavailable, VA has a heightened obligation to assist the Veteran in the development of the claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA examinations were conducted in March 2008 and May 2013. These opinions are considered inadequate for reasons discussed herein. However, the Board sought an expert medical opinion from the VHA in June 2014. The opinion received in September 2014 is adequate to adjudicate the claim because it is based on claims file review and because the expert considered the Veteran's history and described the disability in question, in sufficient detail so that the Board's decision is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). Finally, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ), during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488(2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that a DRO and VLJ who chairs a hearing has (1) a duty to fully explain the issues and (2) a duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ asked questions to ascertain information to substantiate the Veteran's claim for service connection. In addition, the Veteran volunteered an account of his symptoms since discharge and of his more recent symptoms. The VLJ also sought to identify pertinent evidence not currently associated with the claim and which may have been overlooked. Accordingly, the Veteran is not shown to be prejudiced on this basis. 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. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal 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, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2014); 38 C.F.R. § 3.6(a) (2014). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state. 38 U.S.C.A. § 101(21), (22) (West 2014); 38 C.F.R. § 3.6(c)(1) (2014). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection for certain chronic diseases, including arthritis, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's DD Form 214 reflects that he was awarded a Combat Action Ribbon for his active duty as a Marine from July 1968 to July 1972. This period of service included combat in Vietnam. However, the Veteran has not asserted that he suffered any combat-related injury to his back during this particular period of service, such that the combat presumption at 38 U.S.C.A. § 1154(b) is applicable. Rather, he maintains that his back injury occurred during a period of ACDUTRA service in 1975. Moreover, to establish service connection, there must be evidence of a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service treatment records from the Veteran's period of active duty service show one complaint of dull back pain in February 1971. The pain had been present for three days and there was no known trauma. The June 1972 separation examination was negative for any spine abnormality. The Veteran reports that he injured his back in the summer of 1975, during a period of active duty for training with the Army National Guard. He alleges that he fell about five feet from a truck onto a duffel bag, which contained something hard that impacted with his lower back. The Veteran further asserts that he has had back pain ever since this injury and that he sought treatment for back pain within a few years of service discharge. Service personnel records show a period of ACDUTRA service in the Florida National Guard from May 25, 1975 to June 8, 1975, but medical records from the period of service are unavailable. Nonetheless, two witnesses have generally corroborated the Veteran's report of his back injury in 1975. The claims file contains private medical records dated since 1992. These records reflect complaints of low back pain with reported onset in 1991, and treatment since 1992. These records show that the Veteran was initially diagnosed with a herniated lumbar disc in 1992, and that he subsequently underwent multiple back surgeries. SSA records show that the Veteran initially applied for, and was denied, disability benefits for a back disorder sometime between 2000 and 2001. In his application, the Veteran reported that he had worked as a self-employed electrician since 1984. He indicated that in this position, he carried spools of wire that weighed approximately 100 pounds, for about a quarter of his work week, and carried ladders 'and such' about three-quarters of his work week. He also estimated that he frequently lifted 50 pounds or more in this position. In explaining how much he lifted and carried in his position, he stated "I have lifted many things, this is a construction trade, I have carried things that were heavy many times and different distances." In a letter to the SSA in November 2000, the Veteran reported that prior to his first back surgery in 1992, he was able to perform the 'hard manual labor work that an electrician's job required- including lifting, pulling, pushing, climbing, crawling, bending, kneeling, standing, digging, etc.' Private medical records of treatment included in the SSA files also indicate that the Veteran performed manual labor. In an April 2003 letter, Dr. Suggs, a private physician, indicated that the Veteran initially sought treatment from him in 1991 with complaints of back pain dating to 1972. Dr. Suggs further noted that the Veteran had reportedly fallen off a truck onto concrete, injuring his back. Dr. Suggs opined that there is a good probability that the Veteran's arthritis is a direct result from his fall off of a truck in service in 1972, since there was no other injury. In March 2008 and in May 2013, VA examiners opined that the Veteran's current low back disability (diagnosed as status post herniated nucleus pulposus L5-S1 with fusion, post laminectomy syndrome) is less likely as not caused by or a result of his service. The rationale was, essentially, that the Veteran's back pain during service was transient and was not present at separation, and his fall off a truck in 1975 had little significance to his current back condition. The examiners also indicated that it is impossible to make a causal connection since it took the Veteran more than 15 years to report his complaints and to seek treatment. In June 2014, the Board requested an expert medical opinion from the VHA, as to whether it is at least as likely as not that the Veteran's current low back disability had onset during military service or is etiologically related to his reported back injury in service. In providing this opinion, the expert was advised to accept the Veteran's report of his back injury in 1975, as well as his lay report of a continuity of lower back pain since the injury. In September 2014, the VHA expert provided a responsive medical opinion. He noted that he had reviewed the Veteran's extensive chart, imaging reports, SSA testimony and findings, surgical reports, witness statements and the prior medical opinions. The expert further indicated that he is an orthopaedic spine specialist. The expert opined that the Veteran's current lumbar spine pain and resulting lumbar surgeries were most likely not caused by his fall from a truck onto a duffel bag in 1975. The expert explained that degeneration of the lumbar disks are very common in the general population, and even more common among a professional laborer such as the Veteran's profession of electrician in the 8-year interim between starting his business and his first surgery. The expert noted that the period of time from the date of injury, to the Veteran's first record of treatment in 1991, is not medically documented, but the Veteran's histories do make reference to complaints or treatment of pain during a 16-year interval. He indicated that it is difficult to make a causal association between the reported injury and the current disability when more likely associations have been documented, namely tobacco usage and the Veteran's occupation. The expert concluded by stating that it is more likely than not that the Veteran's disability is the consequence of the natural aging process- in combination with an occupation that required heavy lifting and a history of tobacco usage- than due to his fall onto a duffel bag in 1975 which resulted in no documented treatment, imaging, or medical disability. The evidence shows a current back disability, diagnosed as status post herniated nucleus pulposus (HNP) L5-S1 with fusion, post laminectomy syndrome. There also is competent and credible evidence of a back injury during a period of ACDUTRA, namely the Veteran's testimony and the two witness statements that generally corroborate his account of a fall in 1975. What is not present, however, is competent and probative medical evidence which establishes that the current back disability is related to any aspect of the Veteran's active military service, and specifically the injury he sustained in 1975. The Board has considered the Veteran's statements regarding causal nexus. As a lay person, the Veteran is competent to offer an opinion on a simple medical condition, that is, one capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316(Fed. Cir. 2009). However, his lay opinions on whether his current back disability is related to an event or injury during his military service is a complex medical question and is not a matter on which a layperson may generally provide a competent opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). A certain amount of medical expertise is necessary to determine whether the current diagnosis of status post HNP L5-S1 with fusion, post laminectomy syndrome is related to an injury or event in service, especially when the reported injury occurred many years prior to the initial diagnosis of the current back disability and in light of the Veteran's intervening occupational history, which a medical professional has deemed to be a significant causative factor. In other words, the cause(s) of the Veteran's current back disability falls outside the realm of common knowledge of a lay person and it may have developed for reasons that are not subject to observation by a lay person. Since the Veteran's lay statement or opinion is not competent evidence, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. The positive medical opinion from Dr. Suggs regarding nexus has been considered, but it is not persuasive. Dr. Suggs' opinion is based upon an inaccurate factual premise, namely, that a back injury occurred in 1972 and also that the Veteran fell from a truck onto concrete. This is not supported by the service treatment records or the Veteran's testimony. The Veteran denies any injury prior to his 1975 fall, and he (as well as his witnesses) report that he fell onto a duffel bag. Thus, the Board accords Dr. Suggs' nexus opinion no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61(1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). The March 2008 and May 2013 VA opinions are competent medical evidence against the claim, but they are also not probative due to misstatements of the pertinent facts and inadequate consideration of the Veteran's lay assertions. Those opinions focus on the Veteran's documented complaint of back pain in 1971 and a normal clinical separation examination in 1972, whereas the Veteran maintains that his injury occurred in 1975. He testified that he does not recall sustaining any back injury in 1971. In addition, the examiners did not appear to have adequately considered the Veteran's report that his back pain had onset immediately after the 1975 injury and had continued since. In contrast, the VHA expert's opinion that the Veteran's current back disability is not related to service is probative evidence regarding causal nexus. The expert opinion reflects consideration of the Veteran's service and post-service medical history, as well as his lay statements regarding his back symptoms during and after service. The opinion was thorough, well-explained and the conclusion reached was supported by a cogent rationale. The Veteran, through his representative, responded to the VHA opinion in February 2015. He argued that the expert opinion 'does not specifically address the injury and the possible - although not severe at the time - damage the Veteran's initial injury had on his spine and the further damage that may have ensued as a consequence of natural process related to aging.' He also argued that the expert appeared to assume 'strenuous activity related to the Veteran's electrician profession (i.e. lifting and such), but it is unclear as to where he received this information. The Veteran, through his representative, asserts that there was no indication of heavy lifting or other strenuous activity being involved with simple electrical work. Based on these arguments, the Veteran contends the expert opinion and rationale are flawed or at least incomplete. Finally, he suggested that use of the VHA examiner was 'biased' and 'prejudicial.' The Board, however, notes that the VHA examiner specifically addressed the 1975 injury as reported by the Veteran and determined that the natural aging process is more likely the cause of the current back disability, as opposed to the acute 1975 injury. In addition, the expert's findings regarding the Veteran's post-service 'strenuous activities' are well-documented in the SSA records, which contain the Veteran's description of his occupational activities. Finally, there is no requirement that the Board obtain a medical nexus opinion from a non-VA source. Rather, 38 C.F.R. § 20.901 provides that the Board may obtain a medical opinion from an appropriate health care profession in the VHA on medical questions involved in the consideration of an appeal, when, in its judgment, such medical expertise is needed for equitable disposition of an appeal. 38 C.F.R. § 20.901 (2014). In a similar fashion, 38 U.S.C.A. § 7109 also does not mandate that the Board obtain a medical opinion from a source outside the Department. Rather, it indicates that the Board may seek such an independent opinion, when, 'in the judgment of the Board' such is warranted. 38 U.S.C.A. § 7109 2014 (emphasis added). The preponderance of the evidence is against a finding of service connection; there is no doubt to be resolved; and service connection for a back disability, to include status post herniated disc, L5-S1, with fusion and laminectomy is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Withdrawn Claim A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his authorized representative. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.204. In February 2010, the Veteran perfected an appeal to the Board on a claim for a TDIU. In a written statement received in July 2013, and prior to the Board promulgating a decision in the appeal, the Veteran withdrew his appeal in the claim. Accordingly, the Board does not have appellate jurisdiction to review the appeal and the appeal is dismissed. ORDER Service connection for status post herniated disc, L5-S1, with fusion and laminectomy is denied. The appeal on the claim for a TDIU is dismissed. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs