Citation Nr: 1536105 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 08-04 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from July 1970 to October 1978 with subsequent service in the Army National Guard, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) until his separation from the Army National Guard of Colorado in March 1996. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision rendered by the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge in August 2010. A transcript of that hearing is associated with the record. Following that hearing, the Board remanded the case for additional development in March 2011 and April 2014. As that development has been completed, the case has been returned to the Board for further appellate review at this time. FINDING OF FACT The current lumbar spine disorder is not related to any event, injury, or disease in service, and arthritis was not manifest to any degree within one year after discharge from service. CONCLUSION OF LAW A lumbar spine disorder was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's service connection claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). Letters from the RO and Appeals Management Center (AMC) dated in August 2006 and July 2014 provided before and after the initial adjudication of the service connection claim on appeal in December 2006, advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. After the notice letters were provided to the Veteran, the claim was readjudicated in a September 2014 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist the Veteran has also been satisfied in this case. VA obtained the Veteran's service treatment records, service personnel records, VA treatment records, records from the Social Security Administration (SSA), and all available identified private treatment records. The Veteran submitted copies of service records as well as private and VA treatment records. He also submitted written statements discussing his contentions and provided testimony at an August 2010 Board hearing. Neither the Veteran nor his representative has identified any outstanding pertinent evidence related to the claim for entitlement to service connection. The Veteran was provided with VA examinations and VA medical opinions in conjunction with the service connection claim on appeal in June 2011, July 2012, and September 2014 to clarify the nature and etiology of his lumbar spine disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board has found that the medical opinion obtained by VA in September 2014 was adequate, as it was based upon a complete review of the evidence of record as well as consideration of the Veteran's lay assertions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's claim was previously before the Board in March 2011 and April 2014 and remanded for additional evidentiary development, to include affording the Veteran a VA examination and medical opinion. A thorough review of the record showed substantial compliance with the March 2011 and April 2014 remand orders. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran contends that his currently diagnosed lumbar spine disorder is related to his period of active service, and in particular, a twisting injury in 1974 or his duties as a combat engineer. The Veteran has asserted that he was in with the Army Corp of Engineers when he hurt his back, but did not say anything at the time, because he wanted to stay in service. As defined by statute and regulation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2014); 38 C.F.R. § 3.6(a), (d) (2015). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505 (West 2014); 38 C.F.R. § 3.6(c)(3) (2014). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106 (West 2014). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's DD Form 214 from his period of active service revealed that his military occupational specialty (MOS) was Combat Engineer Unit Commander and Engineer Construction Unit Commander. An Army National Guard Current Annual Statement showed that the Veteran had 27 active duty points for the time period from July 1983 to July 1984. Service treatment records showed normal clinical evaluation of the spine in July 1969, October 1969, and April 1971 service examination reports. There was also negative history as to recurrent back pain and normal clinical evaluation findings on separation from active service in September 1978. Reserve examination reports dated in September 1984, August 1987, and September 1991 revealed normal clinical evaluations of the spine. However, in an August 1984 Report of Medical History the Veteran marked yes for recurrent back pain, indicating that he was on medications for minor back pain. It was noted that he suffered a minor back sprain in July 1984 but had negative X-rays and no limitation of motion. Evidence of record did not show that the Veteran was on a period of active service, ACDUTRA, or INACDUTRA at that time. In an August 1987 Report of Medical History, the Veteran again marked yes for recurrent back pain, indicating that he had recurrent back pain since 1981 with no problem in the last three years. In a September 1991 Report of Medical History, the Veteran marked yes for recurrent back pain, indicating that he had back pain, used to work in construction and lifted heavy objects, and had no problems now. Post-service private treatment records dated in May 2004 showed complaints of back pain with an assessment of bronchitis with thoracic muscle spasm. VA treatment records dated in 2006 showed complaints and findings of low back pain and leg numbness. A September 2006 VA lumbar spine X-ray report listed an impression of mild degenerative disc disease (DDD). Additional VA treatment notes dated from 2007 to 2009 showed complaints of recurrent back pain and numbness in legs as well as notations of degenerative joint disease (DJD) of the lower back. Records from SSA reflected complaints of back and left leg pain and findings of DDD. The Veteran was shown to assert that he suffered from back pain due to his work in the Army Corps of Engineers. Private physical therapy treatment records dated in 2010 showed continued treatment for low back pain. A March 2010 VA MRI of the lumbar spine revealed multiple mild disc bulging at all levels with moderate changes at L5-S1. In April 2010, the Veteran submitted medical treatise evidence concerning chronic pain and PTSD. During the August 2010 Board hearing, the Veteran testified that his back disorder began in 2005. He asserted that his back disorder was caused by his duties during service, while working in heavy construction, including using heavy equipment as well as installing mines and bunkers. He indicated that he did not seek treatment for back pain during service, as he was an officer and "an officer does not complain." He clarified that although a service document showed his assertion of back problems related to a construction-type situation, he reported that he wrote that because he still wanted to stay in the military and was trying not to say his back pain was incurred due to military service. He indicated that he had recurrent back pain from active service until the present but did not want to do anything about it because he was quite happy being in the service. Additional VA treatment records dated in 2010 and 2011 showed continued complaints of back and leg pain. In an April 2011 statement, the Veteran asserted his belief that he was injured during active duty while working in several engineer units in Vietnam and while he was the commander of a combat heavy engineer company in Hawaii. He noted that he built concrete revetments, underground bunkers, guard towers, and several minefields as well as worked with Bailey bridges and rafts, lifted many sand bags, and worked on roads and some firebases with many types of heavy equipment (bulldozers, rock crushing equipment, cranes, trucks, etc.) In a June 2011 VA examination report, the Veteran indicated his back began bothering him some time in the late 1990s but also indicated that the onset of his symptoms was in active duty while working as a combat engineer. He denied a history of injury to the lumbar spine or motor vehicle accidents since departure from the military. It was noted that he was never subjected to any profiles or accommodations for his lumbar spine in the Reserve or his civilian job. The examiner highlighted that there were no records of medical evaluations for his back or profiles in service. The Veteran further reported that his back pain did not affect his reserve duty with no need for profile or evaluation during that time. He complained of back pain that was exacerbated by activity. A June 2011 VA lumbosacral X-ray report revealed DDD and DJD of the lumbar spine. After reviewing the record and examining the Veteran, the examiner diagnosed multilevel lumbar DDD with evidence of a left lumbar sensory radiculopathy. The examiner then opined that it was less likely than not that the Veteran's current lumbar condition of DDD with sensory motor radiculopathy was related to or aggravated by his active duty service, to include his reserve duty. In the cited rationale, the examiner noted the Veteran's denial of any history of injury prior to his entry into the military or work related injuries since that time. The examiner further highlighted that there were there are no records during the Veteran's active duty time period of lumbar pain or need for lumbar profiles, as the first report of intermittent back problems was during reserve duty in 1987. It was also noted that there were no complaints of lumbar spine symptoms affecting the Veteran's reserve duty or worsening of symptoms during his reserve duty time. The Veteran related no history of problems for at least three years in 1987, dating back to 1984, at which time normal X-rays and motion were noted. Despite evidence of a current disability, the examiner indicated that there was no evidence of onset of lumbar injury or symptoms during the Veteran's active duty time. In a July 2012 VA examination report, the examiner diagnosed multilevel lumbar DDD and lumbar degenerative arthritis without evidence of motor/sensory lumbar radiculopathy. The examiner then opined that it was likely as not that the Veteran's lumbar spine condition was the result of sustained and repetitive heavy biomechanics while in active duty. In the cited rationale, the examiner maintained that the Veteran's lumbar spine condition was at least as likely as not the result of biomechanical stresses that occurred in active duty service, as a result of the repetitive heavy biomechanics involved in being a combat engineer with ongoing heavy lifting and use of heavy equipment; the credibility of the Veteran who stated he self-treated despite the absence of documentation in his service treatment records; the absence of recalled discrete injury; and the relative absence of recalled biomechanical stress and trauma/injury during his subsequent work and recreation. The examiner noted that stress initially led to recurrent acute lumbar strains, but given the pathophysiology of recurrent and chronic back strains and following the expected progression of that condition, led to the current lumbar degenerative changes. VA treatment records dated from 2012 to 2014 showed continued complaints of back pain and findings of lumbar radiculopathy and chronic low back pain. A January 2014 VA MRI report revealed left posterolateral disc extrusion at L5-S1, slightly larger when compared to previous study, as well as, overall interval worsening of multilevel degenerative changes. In the April 2014 Remand, the Board found that the July 2012 VA examiner's opinion to be inadequate due to a lack of discussion of the post-service heavy lifting; the July 1984 X-ray findings that showed no evidence of a degenerative condition; and the examiner's reliance on the Veteran's not credible history of continuous back pain since service. The Board also noted that the June 2011 VA examiner did not provide an adequate opinion as to whether the current lumbar spine disorder was casually related to service. In a September 2014 VA medical opinion, the examiner noted review of the record, referring to multiple documents in the record. The examiner then opined that the claimed condition, lumbosacral spine DDD and DJD without radiculopathy, was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness (strain). In the cited rationale, the examiner commented that there was no diagnosis of DDD or DJD found in the service records. The examiner then cited to evidence in the record to support the lack of continuity of lumbar spine symptomatology. It was noted that the Veteran reported no acute injury, such as falls or motor vehicle accidents, during active duty that would usually result in later degenerative changes of the back. The examiner highlighted that the Veteran had no profiles during his reserve service for his back but continued his job in the Corps of Engineers. The examiner then concluded that the preponderance of the evidence did not support that the Veteran's current lumbosacral spine DDD and DJD without radiculopathy began in service, due to lack of continuity and lack of significant acute injury to have caused it. Finally, the examiner noted review the conflicting medical evidence and opined that the July 2012 VA examiner did not weigh the impact of the Veteran's after active duty heavy lifting on his back and the fact that he had a completely symptom free interval for years at a time after active duty. It was also noted that the July 2012 VA examiner did not weigh that there was no acute injury during active duty to have caused the Veteran's current disease. Based on the foregoing, the Board has determined that the preponderance of the evidence is against a finding of service connection for a lumbar spine disorder. Although the Veteran reported subjective complaints of back pain in service, the Veteran's available service treatment records are negative for a diagnosis of or treatment for a lumbar spine disorder. There is also no evidence of arthritis or degenerative findings within one year after discharge from service. Instead, the first pertinent post-service evidence of a lumbar spine disorder is dated in 2006, many years after discharge from service. The lapse of several years between discharge from active service and onset of the Veteran's lumbar spine disorder is evidence against the claim. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Additionally, the 2014 VA examiner provided a probative opinion that a current lumbar spine disorder was not present during service. Furthermore, although there is evidence of a currently diagnosed lumbar spine disorder, there is no probative evidence of record linking that disorder to any period of active service or any incident therein. As an initial matter, the July 2012 medical opinion from the VA examiner of record is of little probative value. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes that the July 2012 medical opinion from the VA examiner seems to be based solely on the Veteran's inconsistent lay statements as to onset and continuity of lumbar spine symptomatology, statements found not to be credible by the Board. In contrast, the Board finds the September 2014 VA medical opinion to be highly probative evidence on the issue of service connection because the examiner provided a thorough rationale and relied on professional training and expertise, as well as an extensive review of the entire record, before reaching those well-reasoned conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Moreover, the competent, credible, and probative evidence does not otherwise show that the currently diagnosed lumbar spine disorder originated in service or was the result of any injury or duties that were incurred in service. The Board may appropriately favor the opinion of one competent medical authority over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). In this case, the Board finds that the most persuasive medical evidence that specifically addresses the questions of whether the Veteran's present disorder onset during service or was incurred due to events during active service weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Although the Veteran is competent to provide evidence as to observations such as numbness and some medical matters like back pain, the Veteran's statements that the claimed lumbar spine disorder was related to claimed in-service injuries or in-service duties are not competent and draw medical conclusions, which the Veteran is not qualified to make. Although laypersons are competent to provide opinions on some medical issues and observable symptomatology, the etiology of the Veteran's lumbar spine disorder falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's assertions are not competent evidence to establish the cause of his current lumbar spine disorder. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Board also finds the Veteran's statements as to continuity of symptomatology, although competent, are not credible, because they are inconsistent with the other evidence of record, as well as the Veteran's own statements. During the appeal, the Veteran has made statements repeatedly asserting that his lumbar spine has caused him pain since a twisting injury during active service in 1974. However, when specifically questioned about his lumbar spine during the August 2010 Board hearing, VA examinations, and VA outpatient treatment sessions, the Veteran reported that he did not have problems with his lumbar spine until years after service discharge, with reported onset in the 1990s or in 2005. The Veteran's current statements to the effect that he has experienced continuous lumbar spine symptomatology since active service are not credible, and therefore are not probative. The criteria to establish entitlement to service connection for the claimed lumbar spine disorder have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to a lumbar spine disorder that doctrine is not applicable. 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. ____________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs