Citation Nr: 1606273 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 05-00 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include sciatica. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from April 1969 to April 1971, for which he received an honorable discharge, and from July 1981 to February 1984, for which he received an other than honorable discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2005, the Veteran was afforded an informal conference with a Decision Review Officer. In March 2010, the Veteran testified at a hearing before a Veterans Law Judge. The conference report and hearing transcript have been associated with the record. The Board remanded the instant matter in May 2010, September 2011, August 2012 and March 2013. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand orders with regard to the claim for service connection and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In November 2015, the Veteran was informed that the Veterans Law Judge who had conducted the March 2010 hearing was no longer employed by the Board and was offered the opportunity to appear for another hearing. This letter also informed the Veteran that if he did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. The Veteran did not respond to this letter and, as such, the Board will presume that he does not desire another hearing. The Board notes that additional evidence, namely a January 2014 VA treatment summary, was added to the record after the issuance of the August 2013 supplemental statement of the case. The Veteran has not waived AOJ consideration of such evidence. 38 C.F.R. § 20.1304(c) (2015). However, such documents are not relevant to the claim on appeal and a waiver is therefore not required. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDING OF FACT A lumbar spine disorder, to include sciatica, is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest within one year of the Veteran's discharge from his honorable period of service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder, to include sciatica, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2003 letter, sent prior to the January 2004 rating decision, and an April 2008 letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the April 2008 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the April 2008 notice letter was sent to the Veteran after the initial unfavorable decision in January 2004, his claim for service connection was readjudicated in the September 2009, May 2011, June 2012, January 2013, and August 2013 supplemental statements of the case. Therefore, any defect with respect to the timing of the notice is cured. See Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA and private treatment records have been obtained and considered. During a March 2010 hearing, the Veteran testified that he had received all of his post-service medical treatment at VA. A November 2010 response from the Cleveland VA Medical Center indicates that they were unable to locate any records for the Veteran dated from April 1971 to June 1981 and from February 1984 to October 1997. The AOJ issued a Formal Finding of Unavailability for such records in a November 2010 Memorandum and the Veteran was informed of this unavailability in a May 2011 supplemental statement of the case. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board further observes that the record reflects that the Veteran may be receipt of Social Security Administration (SSA) benefits; however, he has not reported, and the record does not reflect, that he is in receipt of SSA disability benefits based on a lumbar spine disorder. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "not all medical records or all SSA disability records must be sought-only those that are relevant to the [V]eteran's claim. To conclude that all medical records or all SSA disability records are relevant would render the word 'relevant' superfluous in the statute [governing VA's duty to assist]." Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Federal Circuit further held that "relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the [V]eteran's claim." Id. In the instant case, the Veteran reported that he was receiving SSA retirement benefits in a November 2012 VA treatment note. A June 2014 VA peripheral nerves examination indicates that the Veteran had retired in 1998. He did not report that he was in receipt of, or that he had applied for, SSA benefits in a July 1999 Decision Review Officer hearing. Therefore, the Board finds that there are no outstanding SSA records are relevant to the claim decided herein. The Veteran was afforded VA examinations in May 2009, June 2010, October 2011, and September 2012; however, the Board previously found such to be incomplete or inadequate and thus insufficient to adjudicate the instant claim. Similarly, as will be discussed below, an August 2013 VA examination is likewise inadequate to decide the claim. However, a VA examination conducted in June 2013 with an addendum opinion in July 2013 included an etiological opinion as to the claimed disorder and the examiner based his conclusions on a review of the record, to include an interview with the Veteran and a full examination. Moreover, the opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. The Board further finds that the AOJ has substantially complied with the May 2010, September 2011, August 2012, and March 2013 remand directives by obtaining the Veteran's VA treatment records, associating his Vocational Rehabilitation folder with the record, and obtaining VA examinations with opinions adequate to decide the instant claim. Therefore, no further action is necessary in this regard. See D'Aries, supra. Additionally, in March 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before a Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2010 hearing, the presiding Veterans Law Judge enumerated the issue on appeal, i.e., service connection for a lumbar spine disorder. Also, information was solicited regarding the Veteran's in-service experiences he alleges resulted in his lumbar spine disorder, the type and onset of symptoms, the nature of his current disorder, and his contention that his military service caused his lumbar spine disorder. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Furthermore, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included obtaining the Veteran's VA treatment records and Vocational Rehabilitation folder, as well as an examination and opinion to determine the nature and etiology of the Veteran's lumbar spine disorder. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Service connection may be granted for a 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 granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must consider that 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current lumbar spine disorder was the result of an injury that occurred during his first period of honorable service. In a February 2003 statement, the Veteran reported that he had been thrown 25 feet while on an aircraft elevator in approximately October 1970. At the March 2010 Board hearing, the Veteran testified regarding his in-service back injury and reported that his back had bothered him since service for which he sought treatment at VA every time his back hurt. In a July 2013 statement, W.H. indicated that he had witnessed the Veteran's back injury in 1970. Service treatment records reflect two complaints of back pain in December 1970. A March 1971 service discharge examination found the Veteran's spine to be normal and was negative for any relevant abnormalities. Examinations conducted in May 1978, January 1979, March 1980, and April 1981 also found the spine to be normal and were negative for any relevant abnormalities. Post-service treatment records contain a September 1994 VA treatment note that reflects the Veteran's reports of low back pain for the past four to five days and a diagnostic impression of low back pain with spasms. An October 1998 VA treatment note reflects the Veteran's complaints of lower back pain with radiation into the right leg that had its onset one week ago. Diagnostic impressions of sciatica and slight degenerative disease of the lumbar spine were made. A June 1999 VA treatment note indicates that the Veteran had a history of low back pain due to osteoarthritis. A September 1999 VA spine examination report reflects the Veteran's reports that his back pain had gotten progressively worse since service and contains a final diagnosis of arthritis of the spine with right sciatica. An accompanying X-ray revealed degenerative changes at L4-L5 and L5-S1. No etiology opinion was provided. A May 2009 VA examination report notes that the Veteran had a back injury in the 1970s and that he had described a progressive worsening of the back pain. Following a physical examination and a review of the Veteran's claims file, a final diagnosis of lumbar spine degenerative disc disease was made. The examiner opined that it was not likely that this condition was related to the Veteran's in-service back pain but rather was a naturally occurring phenomenon. However, no rationale was provided for this opinion. See Nieves-Rodriguez, supra; Stefl, supra. This opinion is therefore entitled to little, if any, probative weight. The Veteran underwent another VA examination in June 2010 that was conducted by the May 2009 VA examiner. At such time, the examiner opined that it was not likely that the Veteran's diagnosed lumbar disc disease was related to the sprain and strain in service and that it was more likely a naturally occurring phenomenon. The examiner again provided no rationale for his opinion. See Id. This opinion is therefore entitled to little, if any, probative weight. An October 2011 VA Disability Benefits Questionnaire (DBQ) report reflects the Veteran's reports of back pain as a result of being thrown when tension from a large cable gave way during service and that his pain had persisted throughout the years. Following a physical examination, a diagnosis of lumbar degenerative disc disease was made. The examiner opined that it was less likely than not that the Veteran's current low back condition was related to his one time documented "back pain" in service. The examiner reasoned that there was a lack of medical evidence between the Veteran's initial complaint and his current condition/diagnosis to establish a nexus of findings. However, this opinion is based on an inaccurate factual premise, namely that the Veteran's back pain was only documented one time during service. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). This opinion is therefore afforded little, if any, probative weight. A September 2012 VA DBQ report reflects a diagnosis of lumbar strain degenerative disc disease. Following a physical examination and a review of the Veteran's claims file, the examiner opined that it was less likely that the Veteran's current back condition was related to service but was rather related to natural age progression. This opinion contains no rationale. See Nieves-Rodriguez, supra; Stefl, supra. This opinion is therefore entitled to little, if any, probative weight. A June 2013 VA DBQ report reflects a diagnosis of lumbar degenerative disc disease. Following a physical examination and a review of the Veteran's electronic records, the examiner opined that the Veteran's current degenerative arthritis was not related to his complaints in service, did not have its onset during service, and was not otherwise related to service. The examiner found that the Veteran's condition was more likely related to his history of tobacco abuse, employment history, obesity, and normal age progression. The examiner reasoned that there was a lack of medical evidence between the Veteran's initial complaint and his current condition/diagnosis to establish a nexus of findings. In a July 2013 addendum opinion, the examiner indicated that he had reviewed the Veteran's electronic records as well as the internet article cited in the representative's arguments to the Board. The examiner again opined that the Veteran's degenerative arthritis of the lumbar spine was more likely related to his history of tobacco abuse, employment history, obesity, and normal age progression. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. In an August 2013 VA DBQ report, the examiner opined that it was not possible to clearly establish a relationship between the Veteran's current condition and service as there was no evidence that the Veteran developed degenerative joint disease during service. The examiner reasoned that the Veteran complained of lower back pain once during service in December 1970, that it was documented that his condition improved and that his medical records were silent from 1970 to 2008 for a low back problem. This opinion is based on an inaccurate factual premise, namely that the Veteran's back pain was only documented one time during service and that his medical records were silent from 1970 to 2008 for a low back problem. See Reonal, supra. This opinion is therefore afforded little, if any, probative weight. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his discharge from his period of honorable service in April 1971. In addition, while the Board previously accepted the Veteran's statement as to an in-service injury and a continuity of symptomatology as true, there is no evidence that such complaints have later been linked to a diagnosis of arthritis in the first post-service year. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder. While the evidence of record shows that the Veteran has a currently diagnosed lumbar spine disorder, the probative evidence of record demonstrates that such is not related to his service. In this regard, the Board places great probative weight on the June 2013/July 2013 VA examiner's opinion that the Veteran's lumbar spine disorder was less likely than not related to service as there was no evidence to support such a nexus and that the disability was more likely related to his history of tobacco abuse, employment history, obesity, and normal age progression. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. No contrary medical opinion is of record. The Board notes that the Veteran and his representative have generally contended that his current lumbar spine disorder is related to his period of honorable service, to include an in-service injury. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to describe his in-service injury and a continuity of symptomatology, which the Board has previously accepted as true, and his representative is competent to describe his observations regarding the Veteran's symptoms. However, as to the etiology of the lumbar spine disorder, the Board finds such subject matter to be complex in nature and beyond the competence of a lay person. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, knowledge of degeneration of the lumbar spine involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Thus, the Board accords the statements of the Veteran and his representative regarding the etiology of his lumbar spine disorder to have little probative value as neither is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Additionally, the opinion of the June 2013/July 2013 VA examiner who has the necessary training and medical knowledge to competently speak to the issue at hand are highly probative. Moreover, the Veteran and his representative have offered only conclusory statements regarding the relationship between his purported in-service back injury and his current lumbar spine disorder. In contrast, the VA examiner took into consideration all the relevant facts in providing an opinion, to include his in-service back pain and the current nature of his lumbar spine disorder. Therefore, the Board accords greater probative weight to the VA examiner's opinion. The Board notes that the Veteran's representative has referenced a research article on the causes of a herniated disc in its arguments to the Board. Generally, competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The referenced article provides only general information on the causes and symptoms of a herniated disc. In this regard, the Board notes that treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). Therefore, the Board accords no probative weight to the referenced article. Consequently, the Board finds that the Veteran's lumbar spine disorder, to include sciatica, is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest within one year of the Veteran's discharge from his honorable period of service and, therefore, service connection for such disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disorder, to include sciatica. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a lumbar spine disorder, to include sciatica, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs