Citation Nr: 1551196 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 10-00 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a spine (neck and back) disability. REPRESENTATION Appellant represented by: Monte A. Rich, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of this hearing is of record. This matter was remanded by the Board in September 2014 for further development and is now ready for disposition. In June 2015, subsequent to the May 2015 Supplemental Statement of the Case (SSOC), the Veteran submitted additional copies of VA treatment records which were already considered by the AOJ and thus, the Board finds that a waiver is not required. 38 C.F.R. §§ 19.9, 20.1304(c). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's currently diagnosed spine disability was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's currently diagnosed spine disability and his active service. CONCLUSION OF LAW A spine disability was not incurred in or aggravated by service, and may not be presumed related to service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2014). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran contends that he has a spine disability that is related to his service. The Veteran's service treatment records (STRs) include a July 1978 enlistment examination which reflects a normal clinical evaluation of the spine. A September 1980 note shows that he fell on his right hip and was diagnosed with MS pain, but there is no diagnosis of a neck or back disability. A July 1981 physical examination indicates a normal clinical evaluation of the spine. Post-service, records include private and extensive VA treatment records, as well as records from the Social Security Administration (SSA), including those obtained pursuant to the Board's September 2014 remand. VA treatment records include a June 1990 report which indicates a 10-year history of bilateral shoulder pain. A February 1998 report indicates a complaint of bilateral shoulder pain diagnosed as degenerative joint disease (DJD), status post right total shoulder arthroplasty. A November 1998 primary care note indicates a history of right shoulder replacement in 1996, but none of these records indicate complaints of or diagnosis of a back or neck disability. Private treatment records include a June 2004 MRI of the lumbar spine the impression was L3-L4 midline disk protrusion with mild transiting L4 impingement and L-S1 left paracentral disk protrusion with left S1 impingement. An August 2004 report indicates that the Veteran was evaluated for disk herniation after he slipped on water at work. His past medical history was positive for a back injury. The impression was symptomatic left L5-S1 disk herniation, failing conservative measures. A February 2005 report indicates that he sustained a "low" back strain/sprain injury with subsequent complaints of a radicular-type of pain. The physician indicated that he did not believe that the work-related injury aggravated a pre-existing condition. An April 2005 report states that he was seen in August 2004 after he slipped on some water on the floor at work in April 2004. VA treatment records include a February 2005 consultation note which shows that he presented with a "new problem" and reported that in April 2004 he slipped on some water causing him to twist his back. Private treatment records include a May 2005 MRI which indicated multilevel degenerative disc and joint disease with spinal canal and neural foraminal narrowing at multiple levels. VA treatment records include a July 2005 report from treating physician Dr. E.C. stating that he had acute "low" back and bilateral lower extremity pain status post the [2004] injury. A November 2005 private treatment record shows that the Veteran presented with a complaint of chronic back pain which began after slipping and twisting in April 2004. Upon examination, the physician diagnosed lumbar DJD and degenerative disc disease (DDD) with nerve root impingement evident. In an April 2006 VA treatment record, Dr. E.C. noted a history of neck and upper dorsal spine pain and stiffness since an incident during service in 1979 or 1980 which was believed to involve a disk. The Veteran reported that he was running during a physical fitness test and felt a pop and pain over his upper dorsal spine after which he was treated for and diagnosed with a "popped out disk." The impression was chronic neck, upper dorsal spine, and shoulder dysfunction, suspect initial injury was a herniated disk at C5-C6 with persistent intermittent radiculopathies, worse on the left than the right. An August 2006 report indicates an assessment of extensive cervical spondylosis. A MRI of the cervical spine indicated mild DDD of C5-6, C6-7, and C7-T1, much milder at other included interspace levels, with additional pertinent findings. In a June 2008 statement, the Veteran's wife stated that he received injections for bilateral shoulder pain which stems from the initial injury back in 1980, which accelerated the degeneration of the joints, as the back/neck was out of alignment causing excessive pressure and wear on the joints since things were not lined up properly. In another June 2008 statement, the Veteran's fellow service member stated that he did not recall the incident during which the Veteran was injured, but remembered that on several occasions injured personnel were transported via ambulance due to knee and other-related problems. On December 2009 VA spine examination, the Veteran presented with a history of chronic back pain and an in-service injury in September 1980 while playing softball. Chronic joint pain was reported in August 1999 with DJD seen in multiple joints. In November 2004, he blew out two discs during a slip and fall after which he reported intermittent right-sided sciatica. The examiner found no record of back symptoms from 1998 to 2004 until his work-related injury, noting that a June 2004 MRI showed no degenerative changes, but did reveal moderate protruding discs at L3-4 and L5-S1. The examiner stated that the STRs show that he fell on his right hip playing softball causing numbness to the knee for which he received emergency room care in September 1980 with back pain. He also stated that he experienced back and neck pain after running for physical training. However, a 1981 separation examination was negative for a back disability. The examiner stated that he apparently had an acute episode which likely resolved. The examiner noted that a May 2005 report indicated chronic "low back" pain from a work-related fall, but a February 2006 report indicated difficulty with pain and stiffness of his neck and upper dorsal spine subsequent to running during PT in either 1979 or 1980 at which time he felt a pop and pain over his upper dorsal spine. The examiner diagnosed DDD of the lumbar spine with radiculopathy in the right leg which the examiner opined was not caused by or a result of an in-service injury in September 1980 (fall while playing softball). The rationale was that the Veteran stated that his pain has been chronic since service and insists there are records attesting to chronic back pain prior to the 2004 slip and fall, but the examiner was unable to locate anything. There were numerous notes dated 1998 to 2003 with no record of chronic back pain. The examiner also noted that there were no significant records between 1981 and 1998 describing any back condition or treatment. The examiner explained that the strain in service in 1980 apparently resolved prior to the separation examination, as it was not listed as a residual condition and there was only one note related to an acute back injury due to a fall. Post-service, he had a significant back injury in 2004 at which time aggressive treatment, testing, and documentation began. Additionally, he had been morbidly obese for decades which further added to the condition. The examiner opined that his current back disability appeared to be directly related to this 2004 injury based on an extensive review of the record. He also had generalized degenerative changes throughout his joints which cannot be attributed to the in-service spine injury. On July 2013 private orthopedic evaluation he presented with a history of an in-service back injury in 1980. The impression was "low" back pain, severe lumbar spondylosis, DDD lumbar spine-severe, and radiculopathy of the left leg. Records from the SSA include a September 2013 report from Dr. K. which indicates complaints of back pain and notes a history of injuries noting that he was a police officer with multiple encounters and injuries during the 1980s. Such facts provide highly probative evidence against this claim. At this time the Veteran himself appears to generally be associating his back problems to events after service. A September 2013 X-ray of the lumbosacral spine was negative for any evidence of acute lumbar spine injury with degenerative changes. These records include an April 2014 report from Dr. P.B. which states that the Veteran's "medical saga" really began when he had an injury while on active duty between 1978 and 1984 and he had a back injury which over the past 20 years had progressively worsened. The physician diagnosed instability and multiple compressions of the lumbar and cervical spine. The Veteran was afforded another VA examination in March 2014 at which time the examiner diagnosed lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome (IVDS) which the examiner opined was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there is no substantive evidence of a back condition due to and or made worse by the incident during service. In addition, post-service he was able to serve as a police officer without restriction and remained in law enforcement until his shoulders gave out. He was later diagnosed with DDD/DJD and back pain after a work-related fall which he said only made the condition worse. The examiner stated that there is no nexus from clear and convincing evidence, including his records, input, and the examination that the in-service back disability caused and/or made worse the current back disability. In this regard, the Board notes that the standard of "clear and convincing evidence" referenced in the rationale is not the correct standard for use in this case. Rather, the correct legal standard for use, which the examiner used in the opinion, is whether it is "less likely than not (less than a 50 percent probability)" that the Veteran's back/neck disability is related to his service. In light of this problem, in September 2014, the Board requested an addendum subsequent to the December 2009 VA medical examiner's opinion which included consideration of additional information added to the record post-remand. In the April 2015 addendum, the December 2009 VA examiner opined that after careful review of the SSA and VA medical records received since his medical opinion in December 2009, there is no new evidence that changes his previous medical opinion. The examiner explained that based upon review of the claims file the Veteran had DDD and degenerative arthritis of the cervical spine with anterolisthesis of C7 on T1, as well as DDD and degenerative arthritis of the lumbar spine with levoscoliosis and IVDS and associated mild left lower extremity radiculopathy in a sciatic distribution. He also had resolved, L4-L5 right radiculopathy by EMG/NCV study. The examiner opined that the Veteran's currently diagnosed spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that during service he fell while playing softball and had some back pain and radicular right leg pain assessed as musculoskeletal pain which was treated conservatively. However, there are no physical findings of a spine abnormality on physical examination at separation. The examiner also explained that the Veteran became obese during service and is now morbidly obese. Finally, he suffered a work-related injury in 2004. The examiner noted the long interval between his service and his post-service diagnosed spine disability and opined that the most likely etiology of his spine disability is related to the Veteran's obesity, occupation, and age. The Board finds that the numerous VA medical examinations and opinions, in the aggregate, provide highly probative evidence against the claim. After reviewing the claims file, considering the Veteran's documented and reported history, and physical examinations, the examiners concluded that the Veteran's back and neck disabilities were not related to his service. In the aggregate, the examiners provided a conclusion with a sufficient rationale. Therefore, the VA medical examinations and opinions provide probative evidence against the Veteran's claim of high probative weight. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the April 2006 VA medical opinion from Dr. E.C. that the Veteran had a history of neck and upper dorsal spine pain and stiffness of the neck since an incident during service in 1979 or 1980 which was believed to involve a disk. However, the probative value of this "positive" opinion is highly limited. Significantly, this opinion that the in-service injury an incident during service in 1979 or 1980 was believed to involve a disk is highly speculative in nature. It is evident that the physician is uncertain whether the in-service incident caused injury to one of the Veteran's disks. It is important for the Veteran to understand that no one would dispute the finding that this condition "may be" the result of service (in other words, it is not impossible), the question is whether it is at least as likely as not related to service (50% or better chance). It is well-established that a speculative opinion cannot be used to establish a claim for benefits. See Stegman v. Derwinski, 3 Vet. App. 228 (1992) (held that did little more than suggest a possibility that his illnesses might have been caused by service radiation exposure was insufficient to establish service connection). In this regard, as noted above, some of the Veteran's own prior statements to doctors provide evidence against his current claim. The Board has also considered the April 2014 private medical opinion from Dr. P.B. that his "medical saga" really began when he had an injury while on active duty between 1978 and 1984 and he had a back injury which had progressively worsened over the past 20 years. However, the physician supplied a bare conclusion which is not supported by a rationale. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); Bloom v. West, 12 Vet. App. 185, 187 (1999) (an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Moreover, the physician is unclear as to when the injury occurred. The Veteran's reported history of continued symptomatology since active service has also been considered, but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, the STRs are void of any findings or diagnoses related to the Veteran's current spine disability and the post-service treatment records do not reflect problems relating to his back or neck until June 2004, a few months after the April 2004, when a MRI indicated a L3-L4 midline disk protrusion with mild transiting L4 impingement and L-S1 left paracentral disk protrusion with left S1 impingement. In this regard, in an April 2015 addendum to the December 2009 VA examination, the VA examiner noted the long interval between his service and his post-service diagnosed spine disability. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of a spine disability for over 23 years after service and arthritis was not diagnosed until May 2005. This long period without problems (while, importantly, other problems are indicated) weighs against the claim. Continuity of symptomatology has not been established, either through the competent evidence of record or through the Veteran's statements. Both the most probative medical opinions and the most probative facts provide evidence, overall, against this claim. The Board acknowledges that in July 2014, the Veteran testified that he received VA medical treatment for his spine at the same time as his shoulder, around 1990. However, while records from the 1990s indicate treatment for a shoulder disability, these records are void of treatment for a diagnosis of any neck or back disability. The Veteran testified that he did not receive from 1980 to 1990 due to his responsibilities for caring for foster children. Notwithstanding the lapses in treatment for his back and neck disability during the course of the appeal, there is no competent medical evidence to that the Veteran has a spine disability that is related to his service. The service records, post-service records, and VA examinations and medical opinions provide particularly negative evidence on this point, overall. The Board has taken the contentions of the Veteran and his spouse that he has a currently diagnosed back and/or neck disability, that is related to his service very seriously (this was the basis of the Board's remand in order to address this medical question). The Board has also considered the June 2008 statement from the Veteran's spouse that the in-service back injury accelerated the degeneration of the joints which is presumably related to his current back and neck disabilities. In this regard, the Board finds that the VA medical examinations and opinions provide highly probative evidence against this claim. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed disability. The best evidence, but by no means all evidence, provides evidence against this claim of high probative weight. We cannot ignore a medical history that at some points is supplied by the Veteran himself that does not support this claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of back and neck disabilities, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Again, some of the Veteran's own prior statements to health care providers provide highly probative factual evidence against this claim. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a spine disability (neck and back) and there is no doubt to be otherwise resolved. As such, the claim is denied. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The RO sent the Veteran a letter in March and April 2006 which informed him of all three elements required by 38 C.F.R. § 3.159(b). As such, the VCAA duty to notify was satisfied. Additionally, the Veteran testified at a hearing before the undersigned VLJ in July 2014. A hearing officer who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the etiology of his claimed back and neck disabilities. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records and opinions, SSA records, and the Veteran's written assertions. No outstanding evidence has been identified that has not otherwise been obtained. Next, relevant VA medical opinions were obtained in December 2009, March 2014, and April 2015. In sum, the Board finds that the examination report and opinions show that the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination (in December 2009 and March 2014), noting all findings necessary for proper adjudication of the matters, and explained the rationale for the opinions offered. Hence, the Board finds that the VA examinations and medical opinions obtained in this case are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Under the circumstances, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. ORDER Service connection for a spine (neck and back) disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs