Citation Nr: 1547344	
Decision Date: 11/09/15    Archive Date: 11/13/15

DOCKET NO.  12-07 833	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a low back condition.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. Chad Johnson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1974 to May 1978.  

This matter comes to the Board of Veterans' Appeals (Board) from a March 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

This matter was previously remanded by the Board in July 2015.  As discussed below, the Board finds there has been substantial compliance with prior remand directives, such that an additional remand is not required.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives).  

As noted in the July 2015 Board remand, the Veteran has clarified that his April 2011 notice of disagreement (NOD) pertained only to the claimed low back condition; therefore, a claim to reopen a previously denied claim of entitlement to service connection for a hip condition is not before the Board.  See 38 C.F.R. 20.201 (2015).  Additionally, while the Veteran's March 2012 VA Form 9 substantive appeal requested a hearing before the Board, the Veteran failed to report to an October 2014 hearing.  Moreover, in June 2015, the Veteran stated that he wished to submit a written statement in lieu of a hearing before the Board.  Therefore, the Veteran's prior hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d)-(e) (2015).  


FINDING OF FACT

The Veteran's current back disability, diagnosed as degenerative arthritis and scoliosis, did not have onset during active service or within one-year of service discharge, was first diagnosed many years after active service, and is otherwise etiologically unrelated to active service.  


CONCLUSION OF LAW

The criteria for service connection for a back disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303 (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  The RO provided the Veteran with proper notice regarding his service connection claim in October 2010.  

Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements, and all such records have been associated with the claims file.  

The Veteran was afforded relevant VA examinations in December 2010 and September 2015.  To the extent that the December 2010 VA examination was found inadequate, the Board notes that the September 2015 VA examination adequately addressed the directives of the July 2015 Board remand, such that the VA examinations of record, when read together and considered as a whole, are adequate for deciding the Veteran's claim on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  Additionally, given this development, the Board finds there has been substantial compliance with prior remand directives, such that no further remand is required.  See Stegall, 11 Vet. App. 268; see also Dyment, 13 Vet. App. 141.  

Neither the Veteran nor his representative has identified any additional evidence relevant to the claim on appeal.  Hence, no further notice or assistance is required and appellate review may proceed without prejudice to the Veteran.  


II.  Service Connection - Low Back

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015).  "To establish a right to compensation for a present disability, a Veteran must show:  "(1) the existence of a present disability; (2) 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

For certain chronic disorders, including arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2015).  Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection.  Id.  

Even where service connection cannot be presumed, service connection may still be established on a direct basis.  See Stefl, 21 Vet. App. 120; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a) (West 2014).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

The Veteran submitted his claim of entitlement to service connection for a low back disability in July 2010.  He attributed his claimed low back condition to an injury sustained during active service while he was stationed in Germany in 1975.  

Service treatment records document a normal clinical examination upon service enlistment in April 1974 and the Veteran denied a back condition in a contemporaneous report of medical history.  In August 1975, the Veteran reported clicking in the lower lumbar region while walking up hills stemming from an injury two weeks prior while riding on the back of a truck.  Range of motion, strength, reflexes and x-ray studies were normal, without noted abnormality.  The condition was assessed as questionable neurologic impingement at L4-5.  At a subsequent orthopedic consultation in September 1975, the Veteran's spine was non-tender, without deformity.  In January 1977, the Veteran reported back pain for a few days; this was assessed as rule out spasms and treated with prescription medication.  A separation examination in January 1978 documented a normal physical examination, and the Veteran denied a back condition in a contemporaneous report of medical history.  Additionally, in a subsequent May 1978 statement of medical condition, the Veteran reported there had been no change in his medical condition since his January 1978 separation examination.  

Post-service VA treatment records document a normal lumbar spine x-ray in September 1994.  In August 1997, the Veteran was diagnosed with lumbago.  An October 2003 x-ray documents first-degree spondylolisthesis, as do subsequent imaging studies in May 2008 and October 2008.  In January 2011, an MRI revealed bilateral spondylolysis at L5 with grade II spondylolisthesis at L5-S1.  

Private treatment records contain a January 2008 letter from a private chiropractor reports that the Veteran was treated during his time at home in 1976 for symptomatic relief of exacerbations of low back pain.  A February 2008 letter from another private chiropractor indicates that the Veteran was treated in October 2006 for recurrent lower back pain which he reported since an injury in 1975.  Additionally, a July 2013 private treatment record documents ongoing chiropractic treatment for low back pain with muscle spasm.  

During a July 2008 VA examination regarding a prior claimed hip condition, the Veteran was diagnosed with age-related degenerative spondylosis of the spine.  The Veteran was first afforded a VA examination in conjunction with the his claim for a low back condition in December 2010.  At that time, after a review of the claims file and a physical examination, the VA examiner diagnosed grade II spondylolisthesis at L5-S1 with bilateral foraminal stenosis which was less likely as not caused by or a result of inservice low back injury.  Rather, the examiner opined that the Veteran's condition was related to age-related degenerative changes of the back.  

As noted in the July 2015 Board remand, the examiner noted that service treatment records documented treatment for low back pain in August 1975; however, the examiner did not discuss the September 1975 orthopedic consultation, the subsequent January 1977 report of low back pain, or the Veteran's statements about recurrent back pain and related treatment since his in-service injury.  The Veteran has reported ongoing treatment for his 1975 back injury, including the 1976 private chiropractic treatment discussed above.  He has also reported subsequent difficulty working in 1988-89 because of back pain, and self-treatment including massaging chairs for his back pain symptoms.  

In accordance with the July 2015 Board remand, in September 2015, VA obtained an addendum opinion from the same VA examiner who provided the prior December 2010 VA examination.  The examiner specifically noted his review of the Veteran's claims file, including service treatment records, VA treatment records, private treatment records, lay statements, and the July 2015 Board remand.  The examiner acknowledged the Veteran's September 1975 report of clicking in the lower lumbar region, and noted that x-rays were normal, with an assessment of questionable nerve impingement at L4-L5.  Likewise, the examiner noted the January 1977 report of back pain with difficulty bending, assessed as rule out spasms and treated with medication.  The examiner pointed out that the January 1978 separation examination did not indicate any back issues, including recurrent back pain, or related abnormal physical findings, which would indicate no ongoing or chronic low back condition; this is further supported by the Veteran's May 1978 statement of medical condition that there had been no change in his condition since the May 1978 separation examination.  The examiner noted that VA x-rays in September 1994 document a normal lumbar spine, and that beginning in August 1997 and thereafter, studies began to show progressive spondylosis (DDD/DJD) and spondylolisthesis.  Regarding the January 2008 private physician's letter documenting chiropractic care for low back pain since a 1975 in-service injury, the examiner stated that the 1975 injury was probably the reason for the Veteran's treatment in 1976, but he noted that the private physician did not review the claims file or the 1976 treatment records, and stated that there was no evidence to suggest or support that the Veteran's current lumbar condition was the same or related to the back pain condition being treated in 1976; moreover, there was no indication what diagnostic condition was being treated at that time.  Regarding the February 2008 private chiropractor letter, the examiner noted that again, the chiropractor did not review the Veteran's claims file; moreover, the private chiropractor did not render an etiological opinion regarding the Veteran's back condition to suggest a relationship between the current condition and an in-service back condition.  

The examiner concluded that the normal x-rays of the lumbar spine in 1994 did not support that the Veteran's reported symptoms between separation and the first x-ray evidence of degenerative changes in 1997 were related to the current lumbar spondylosis and spondylolisthesis condition.  Rather, he opined based upon numerous cited medical literature and studies, that the most likely etiology of the Veteran's lumbar spondylosis, related neurological symptoms, and spondylolisthesis is degenerative changes related to the aging process.  He further noted that VA cervical spine studies were normal in August 1991 and later showed spondylosis in January 2000 and July 2008, although concurrent thoracic spine studies were normal, and stated that this suggests that the degenerative changes are in multiple non-adjacent areas of the Veteran's spine, which further supports a degenerative aging etiology for the lumbar spondylosis and spondylolisthesis.  He concluded that the majority of evidence does not support a nexus linking the current lower back condition to an in-service event or injury; therefore, it is not at least as likely as not that the Veteran's current low back condition was caused by, or initially manifested during, his active service.  

After a thorough review of the claims file, the Board finds that service connection is not warranted for a current back disability.  As noted above, although the Veteran reported instances of back pain during service, his January 1978 separation examination was normal, including the Veteran's specific denial of a back condition, and his subsequent May 1978 statement reported there had been no change in his medical condition since the January 1978 separation examination.  

The Veteran is competent to testify concerning his history of low back pain, because this is capable of lay observation and experience.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to provide an etiological opinion that his current lumbar condition is related to active service, as he does not possess the required orthopedic expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007). Moreover, while the Veteran has reported ongoing back pain since his first report of back pain in 1975, the Board notes that such statements lack probative value because they are inconsistent with the evidence of record, including the normal January 1978 separation examination and report of medical history, and the Veteran's subsequent May 1978 statement that there had been no change in his medical condition since the January 1978 separation examination.  To the extent the Veteran reported back treatment in 1976, the September 2015 VA examiner acknowledged that the Veteran's 1975 back injury was probably the reason for the Veteran's treatment in 1976, but the examiner noted that there was no evidence to suggest or support that the Veteran's current lumbar condition was the same, or even related to, the back pain condition being treated in 1976; moreover, there was no indication what diagnostic condition was being treated at that time.  

Most of the probative value of a medical opinion lies in its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444 (2000).  Notably, the VA examiner's December 2010 and September 2015 opinions were based upon a thorough review of the claims file, the Veteran's reported medical history, and a physical examination; moreover, the resulting opinion clearly addresses the Veteran's current low back disability and provides a reasoned analysis and rationale in support.  Conversely, while the Board acknowledges that there is some private treatment evidence in support of the Veteran's claim, the January 2008 and February 2008 letters from private chiropractors did not offer an etiological opinion and were not rendered following a thorough review of the Veteran's claims file, which limits the probative value afforded to such evidence by the Board.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Prejean, 13 Vet. App. 444.  

The Board finds that the VA examiner's September 2015 opinion contains the most thorough and reasoned analysis regarding whether a nexus exists between the Veteran's current low back disability and his active service.  Therefore, the Board affords more probative weight to the VA examiner's September 2015 opinion which is factually accurate, fully articulated, and supported by sound reasoning.  See Nieves-Rodriguez, supra.  

In summary, the preponderance of the evidence is against a finding of a nexus relationship between the Veteran's current low back disability and his active service.  As such, there is no reasonable doubt to be resolved, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  


ORDER

Service connection for a low back condition is denied.  



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs