Citation Nr: 1551965 Decision Date: 12/11/15 Archive Date: 12/16/15 DOCKET NO. 14-03 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1964 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Arthritis of the low back is not shown to have been manifested within the first postservice year and the Veteran's current low back disability is not shown to be related to service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. By correspondence dated in August 2011, VA notified the Veteran of the information needed to substantiate his claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain, as well as how VA assigns disability ratings and effective dates of awards. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He was afforded a VA examination in September 2011. The Board acknowledges the Veteran's contention that the September 2011 examiner had difficulty reading his X-rays at the examination. However, the examiner obtained a reported history from the Veteran and conducted a thorough examination, noting the Veteran's reported symptoms and his clinical findings. The examination report contains sufficiently specific clinical findings (including degenerative disk disease found on X-rays) and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds the examination report adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service; 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). Certain chronic diseases (including arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as 'chronic' in 38 C.F.R. § 3.309(a). The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs show that in January 1965 he was seen for back trouble. The assessment was a muscle spasm in the left lower thorax. It is noted that in June 1965 the Veteran was in an automobile accident and was seen for back pain; the assessment was a muscle strain. In June 1967, he was seen for complaints of back pain and noted that he did not experience pain on walking, climbing, or sitting, but had pain on reclining. On his December 1967 service separation examination, clinical evaluation of his spine was normal. A February 1977 private treatment record from St. Luke's hospital indicates that the Veteran was seen for a left shoulder injury; no back pain was noted on examination or in his past medical history. A March 1994 private treatment record from St. Luke's hospital notes that the Veteran presented with a painful mass on the left distal ulna; the Veteran also reported some chronic cervical pain, but did not indicate any back pain or problems. A May 2003 private treatment record indicates that the Veteran reported he "twisted his back a little" and had back pain after he crawled underneath a cabinet about 1 week earlier. A July 2004 private treatment record notes complaints of back pain after he "twisted funny." In May 2005, the Veteran reported experiencing back pain for the past few weeks. September 2009 private treatment records note that the Veteran reported experiencing back pain for 2 weeks after lifting heavy cement blocks; a lumbar strain was diagnosed and degenerative disc disease (DDD) was noted. A November 2010 private treatment record indicates that the Veteran reported complaints of low back pain which he had experienced for 20 years and that he believed it was related to a car accident. An August 2011 statement by the Veteran indicates that he was in an automobile accident in service and that he has had back pain since. He noted that in the 1980s, he sought treatment from the Dean Clinic and then from St. Mary's Hospital prior to seeking treatment at a chiropractor in the 2000s. A November 2011 statement by the Veteran notes that he contacted the Dean Clinic and St. Mary's Hospital and any past medical records from these providers are unavailable. On September 2011 VA examination, the examiner noted a diagnosis of degenerative disk disease of the lumbar spine with a September 2009 date of diagnosis and a lumbar strain with a diagnosis of June 1965. The examiner noted that the Veteran reported that he was in a car accident during service, which is verified by his STRs. The examiner noted that the car accident injuries were noted to be a hematoma, forearm abrasion, and right lower quadrant pain, but that the Veteran was subsequently seen additional times for back pain which was diagnosed as a back strain. In particular, the examiner noted the June 1967 STR indicating back pain on reclining. At the examination, the Veteran reported that he has had pain in his back since the accident and then began seeking treatment in the 1980s where he was told that he had a crushed disc in his neck and previously made trips to the emergency room at St. Mary's Hospital due to back pain. The Veteran indicated that he puts a back brace on immediately after getting up and that he can throw his back out with simple things, such as bending over. He indicated that the pain improves once he gets up and moves around and it does not radiate. The September 2011 VA examiner opined that it is less likely than not that the Veteran's back disability is related to service, to include the documented car accident therein. The examiner noted that the Veteran was able to report for duty the after the accident (although he did seek treatment for injuries) and that it is noted in his STRs that he has back pain only on reclining, not walking, climbing, or sitting. The examiner noted that his X-rays showed moderate degenerative disc disease changes at L2-L3 and L5-S1 and that these are at least as likely as not due to the normal aging process and not due to the car accident. An August 2013 CT scan from St. Luke's Hospital notes diffuse thoracic lumbar spondylosis and discogenic degenerative changes at L2-L3. The impression was thoracic and lumbar spondylosis without acute bony changes. A January 2014 statement by the Veteran notes that his back has bothered him since service and that his private physician recently told him that there was arthritis in his back due to an old injury. In February 2014, he identified this provider as Dr. T.K., and noted that after viewing a CT scan Dr. T.K. "mentioned arthritis in my lower back." These records from Dr. T.K. were obtained. While they show an assessment of chronic low back pain with disc disease and spondylosis found on CT scan, they do not provide an etiology of the back problems. It is not in dispute that the Veteran has a low back disability, as DDD of the lumbar spine was diagnosed on September 2011 VA examination. It is also conceded that the Veteran suffered a car accident in service and sought treatment for back pain. What remains for consideration is whether his current low back disability is related to his service, to include the complaints therein. First, the Board finds that the overall evidence weighs against finding that the Veteran manifested a chronic low back disability in service that persisted. His STRs assess his back pain as a muscle strain, and his back was assessed as normal at the time of his service separation examination. February 1977 and March 1994 private treatment records are silent for any mention of back trouble, although the Veteran did note chronic cervical pain. Private treatment records from May 2003 to September 2009 wherein the Veteran sought treatment for back pain note onset as a few weeks earlier and as a result of intercurrent injuries, such as lifting cement or crawling under a cabinet. It is not until November 2010 that the Veteran reported having back pain as a result of a car accident. However, in that December 2010 medical record the Veteran reported "20 years" for the duration of his back condition, indicating that it began in approximately 1990, which was over 20 years after his separation from service in 1967. Finally, the September 2011 VA examiner opined that the Veteran's current back disability is less likely due to service, including the car accident, and is more likely the result of the normal aging process. Accordingly, service connection for a low back disability on the basis that it became manifest in service and persisted is not warranted. See 38 C.F.R. § 3.303(d). Also, arthritis of the back is not shown to have been manifested in the Veteran's first postservice year, and he does not allege otherwise. X-rays first revealed arthritis many years after service (the earliest notation of degenerative changes was in September 2009). Therefore, service connection for such disability on a presumptive basis (i.e., for arthritis of the back as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. The Veteran asserts that he has had back problems that have gradually worsened since his injury in service. While his STRs show treatment for back pain, in June 1967 it was noted that he experience back pain only when reclining and examination of his back on separation was normal. Additionally, the Veteran asserts that he initially sought postservice treatment for his back in the 1980s (over 10 years after service) and sometimes sought emergency treatment at St. Mary's Hospital prior to seeking treatment at a chiropractor in 2003. Private treatment records from 1977 and 1994 are silent for any mentions of back pain or trouble, although the Veteran did mention experiencing chronic cervical pain. The negative discharge examination, the Veteran's own report of gaps in treatment for any back problems, and the absence of any back complaints in private treatment records from 1977 and 1994 indicate a lack of continuity of symptomatology since the injury in service. To the extent he is seeking service connection based on the theory of continuity of symptomatology, such reports are inconsistent with the theory that he has had persistent back pain since his injury in service. Thus, the preponderance of the evidence is against a finding of continuity of symptomatology since service. The preponderance of the evidence is also against a finding that the Veteran's low back disability is somehow otherwise related to his service/injury therein. The record reflects numerous intercurrent back injuries. The initial documentation in the record of postservice treatment is from May 2003 (approximately 36 years after service separation), when he reported a history of a back injury after crawling under a cabinet 1 week earlier. Thereafter, in July 2004, May 2005, and September 2009, the Veteran notes back pain with onset of a few weeks, including after lifting heavy cement. The competent evidence that directly addresses the matter of a nexus between the low back disability and his service is the September 2011 VA examiner's opinion. The VA examiner's opinion indicates that the Veteran's low back disability is unrelated to his service/injury therein. The examiner expressed familiarity with the entire record, including the instances of treatment for back pain in service, and pointed to alternate etiology (normal aging) in support of the conclusion. The Board finds the examiner's opinion is competent and probative evidence in this matter. The Board has considered the Veteran's statements regarding the etiology of his low back disability, including that a private physician has recently related his current back disability to an "old injury." However, as noted above, the private physician did not provide such an opinion in his medical records, which were obtained. Hearsay medical evidence, as transmitted by layperson, is of limited probative value. The connection between what a physician said and a layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). In the absence of credible evidence of continuity of symptoms, the matter of a nexus between a current back disability and a remote injury in service is one beyond the scope of lay observation, and requires medical knowledge and training, particularly in a case such as this, where there is evidence of one or more intercurrent back injuries which complicate the disability picture. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is a layperson, and his assertion that there is a nexus between his current back disability and his injury in service is not competent evidence. There is no competent medical evidence of record showing that his current back disability is related to service, to include the automobile accident therein. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. Accordingly, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal seeking service connection for a low back disability is denied. ____________________________________________ M. C. Graham Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs