Citation Nr: 1618251 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 13-03 972 ) 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 Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1966 to February 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, to include a transcript of the February 2016 Board hearing presided over by the undersigned Veterans Law Judge. FINDING OF FACT The Veteran did not experience a low back injury in service and that the Veteran's current low back disability is not etiologically related to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2015). When VA receives a complete or substantially complete application for benefits, it will notify the Veteran of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must also provide the Veteran with information regarding how VA determines effective dates and disability ratings. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in December 2010, in which the Veteran was notified of how to substantiate his claim for service connection and information regarding the allocation of responsibility between the Veteran and VA. The Veteran was also provided information on how VA determines effective dates and disability ratings. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, records pertaining to the Veteran's claim for disability benefits from the Social Security Administration (SSA), and lay statements have been associated with the record. Further, during the appeal period the Veteran was afforded a VA examination in February 2011. The examiner conducted an examination and provided sufficient information such that the Board can render an informed decision. The Board finds that the VA examination, in conjunction with the other lay and medical evidence of record, is adequate for purposes of determining service connection. The Board acknowledges that there are outstanding private treatment records that may provide information regarding treatment of the Veteran's low back since 1981 at earliest. See March 2016 private medical opinion from Donohue Chiropractic (stating that Veteran has been treated at this facility since 1981); December 2010 Form 21-4142 (Veteran reported treatment with Dr. P. P. from 2006 to 2008 at Sacred Heart Hospital); June 2014 Form 21-4142 (Veteran reported he was seen since 2006 by Dr. Schlingen). However, as discussed below, this case turns on whether an in-service low back injury occurred and whether the Veteran's current low back disability is related to such alleged in-service injury. Significantly, the Veteran has submitted a private medical opinion regarding etiology from Donahue Chiropractic that was rendered based on this provider's treatment of the Veteran since 1981, which the evidence shows is the earliest time he received treatment for the low back after separation from service. In light of the fact that VA has received an etiological opinion from the Veteran's earliest post-service medical provider, and because the other outstanding private treatment records are dated almost four decades after the Veteran's separation from service, the Board concludes that obtaining these aforementioned outstanding private records would not provide new information to show that an in-service low back injury occurred. Because obtaining these records would not provide new information to substantiate the claim, remanding the case to attempt to obtain these outstanding private treatments records is not warranted. 38 C.F.R. § 3.159. Service Connection A veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that he injured his back in a bus accident in Fort Rutger, AL, and that his current low back disability is etiologically related to this alleged low back injury. See November 2010 claim; February 2016 Board hearing transcript at p. 4. Also, though the Veteran consistently contended during the appeal period that his current low back disability is related to this bus accident, the Veteran then testified at the February 2016 Board hearing that his current low back disability is related to heavy lifting that the Veteran performed in service. See February 2016 Board hearing transcript at p. 6-7 (Veteran's representative asked if Veteran performed heavy lifting in service, the Veteran responded in the affirmative, the Veteran's representative asked the Veteran if his back bothered him when doing this heavy lifting, and the Veteran responded in the affirmative). The Veteran has multiple low back diagnoses during the current appeal period. See February 2011 VA examination (diagnosing Veteran with lumbar degenerative disc disease and spondylolisthesis); June 2012 private treatment records from Pain Clinic of Northwestern Wisconsin (diagnosing lumbar spinal stenosis and spondylolisthesis with right leg symptoms associated therewith); March 2016 private medical opinion from Donohue Chiropractic (diagnosing Veteran with degenerative disc disease). Radiological studies confirm these diagnoses. Thus, the current disability is shown. Though the current disability is shown, the preponderance of the evidence is against a finding that the Veteran's current low back disability is related to service, to include as a result of the alleged low back injury due the in-service bus accident or due to in-service heavy lifting. The Veteran is certainly competent to report his symptoms and observations. However, the Board finds that the diagnosis of a low back injury and the determinations as to whether a low back injury occurred in service in this case and as to the etiology of the Veteran's current low back disability are essentially medical questions, and as such are beyond its own competence to evaluate based upon its own knowledge and expertise. It follows that the Veteran's determinations that he sustained a low back injury in service or due to the bus accident and heavy lifting and that his current low back disability is related to these alleged in-service low back injuries are also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran or his representative has medical expertise or training, to include in the field of orthopedics, the Veteran's and his representative's lay opinions that he sustained a low back injury, to include a "twisting injury" and/or "internal damage" as a result of the in-service bus accident, and that his current low back disability is related to this alleged in-service low back injury or to alleged heavy lifting in service are of no probative value. See e.g., February 2016 Board hearing transcript at p. 6 (Veteran reported that he twisted his low back and the Veteran' representative characterized this as a "twisting injury"). As to the Veteran's reports of symptoms, the Board notes that that the Veteran's statements as to onset of back pain and as to whether he recurrently experienced back pain since the bus accident have been inconsistent and inconsistent with the medical evidence of record. First, the Veteran reported that in the bus accident his "side was pressed against my helmet and my body was twisted." See November 2010 claim. The Veteran reported that he spent the night in Fort Rutgers Military Hospital for observation because his side was injured. Id. The Veteran also reported to the February 2011 VA examiner that his side was injured in the bus accident. See February 2011 VA examination. A November 2010 lay statement from a fellow serviceman J. W. stated that the Veteran went to the hospital because of stomach pains. Then, the Veteran stated that his back hurt after the bus accident, and his side hurt more than his back. See April 2013 Form 21-4142. However, then the Veteran reported that after his back hurt after the bus accident in service, the pain went away. See April 2013 Form 21-4142. Then, in the February 2016 Board hearing, the Veteran testified that after he allegedly injured his back in service, he continued to have low back pain in service and since discharge from service, and he reported that he was not treated because he "hardly went to sick call." See February 2016 Board hearing transcript at p. 6-7. On the other hand, in his November 1967 Report of Medical History rendered on separation from service, the Veteran denied having recurrent back pain in service, and the November 1967 Report of Medical Examination by a medical professional showed that the Veteran's spine was normal on separation from service. On the other hand, the evidence shows that the Veteran has also reported that his low back pain began in 1980. See e.g., May 2010 VA treatment note (noting that x-x-rays of the lumbar spine are needed because the Veteran reports a subjective history of 30 years of low back pain). The Board notes that the Veteran's lay statements and medical records associated with his claim for disability benefits from the SSA show that that the Veteran first received medical treatment for the low back after the Veteran reported a low back injury that occurred when heavy lifting at his job in 1980. See SSA Work History Report (Veteran reported that in the fall of 1980, he hurt his lower back while helping to move steel, he was out of work for 6 weeks, and that this lower back injury has been a problem for many years for him); see also March 2016 private medical opinion from Donohue Chiropractic (stating that Veteran has been treated at this facility since 1981 [right after the 1980 on-the-job injury]). There is no lay report or indication in the medical evidence associated with the Veteran's SSA records that he had low back pain prior to 1980, to include as a result of any event in service. Furthermore, the Board finds that the contemporaneous service treatment records that show treatment of the Veteran immediately after the bus accident are of significant probative value, as these records show the Veteran's own subjective contemporaneous complaints, and the objective and contemporaneous assessment of the Veteran's condition after the bus accident was based on a medical professional's medical expertise and on an examination of the Veteran immediately after the bus accident. The service treatment records show that in April 1966, the Veteran was involved in a bus accident and he complained of pain under the left rib cage. The note states that the pain was in the upper quadrant of the abdomen, and the diagnosis was left upper quadrant abdominal pain. After being admitted for observation, no disease or injury was found. Then, in a July 1966 service treatment record, the Veteran was noted as having left upper quadrant pain of the abdomen again, and the assessment was "may have an internal hernia." There is no indication in these contemporaneous service treatment records that the Veteran incurred a low back injury or had any low back complaints due to the bus accident. Based on the above evidence, the Veteran's reports as to the onset of his low back symptoms in service and as to presence of recurrent low back symptoms since alleged onset in service have been inconsistent and inconsistent with the probative medical evidence of record. Therefore, the Board finds that the Veteran is an unreliable historian and that his contentions that his low back symptoms began in service after a bus accident in service and after heavy lifting in service, and that his low back symptoms have continued since alleged onset in service, are not credible and therefore have no probative value. Accordingly, the Veteran's contention that he had back pain after the bus accident in service is outweighed by the contemporaneous service treatment records that show no back complaints in service, to include after the bus accident. Moreover, the weight of competent and probative evidence shows that the Veteran did not sustain a low back injury in service and that the Veteran's current low back disability is not related to service. The February 2011 VA medical opinion is of significant probative value, as the examiner reviewed the claims file, provided sufficient rationale for his opinions, and based his opinions on his medical expertise, examination of the Veteran, the Veteran's medical history and lay statements, and the lay statement from the Veteran's fellow serviceman J. W. The VA examiner noted the Veteran's reports as to having back problems "for as long as he can remember" and noted the findings regarding the bus accident in the service treatment records. The VA examiner opined that it is less likely than not that the Veteran's diagnosed low back disabilities are less likely than not related to his injuries in active duty because the Veteran did not have an injury of the back in service. The Board acknowledges that the Veteran submitted a March 2016 private medical opinion from Donohue Chiropractic, in which Dr. T. D. states that he has treated the Veteran for low back and hip pain since 1981. Dr. T. D. opined that the Veteran's low back and hip pain "step back to trauma he had while in a[n in-service] motor vehicle accident....I believe this to be a permanent injury which caused him to have disabling abilities." However, Dr. T. D. did not identify the nature of in-service trauma - specifically whether such trauma involved the low back - and he did not comment on the Veteran's upper quadrant pain shown after the bus accident. Dr. T. D. also did not provide rationale to support why the Veteran's currently diagnosed low back degenerative disc disease is etiologically related to the Veteran's in-service "trauma." Further, there is no indication that Dr. T. D. reviewed the Veteran's service treatment records, and Dr. T. D. did not comment on the Veteran's low back injury in 1980, although he began treating the Veteran after this 1980 injury. For these reasons, the Board finds that the March 2016 private medical opinion by Dr. T. D. is speculative at best and has no probative value. Therefore, the March 2016 private medical opinion is outweighed by the February 2011 VA medical opinion. Given the February 2011 VA medical opinion, and the probative contemporaneous medical evidence in service, the Board finds that no low back injury occurred in service, including as a result of the Veteran's motor vehicle accident or as the result of heavy lifting in service. Indeed, there is also no medical evidence and no probative lay evidence to indicate that the Veteran had low back symptoms until over a decade after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Instead, the above discussed medical evidence and lay reports indicate that the Veteran experienced the intercurrent post-service low back injury in 1980 due to heavy lifting on the job. See also SSA Disability Report (Veteran reported that he performed heavy lifting as a maintenance man in a paper mill from July 1977 to June 1990, as this occupation required frequent (i.e., 1/3 to 2/3 of the workday) heavy lifting of 50 to 130 pounds). Further, there is no competent and probative evidence to show that the Veteran's current low back disability is otherwise related to service. Thus, the alleged in-service low back injury is not shown, and the Veteran's current low back disability is not shown to be otherwise related to service. Therefore, service connection is not warranted for the Veteran's current low back disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board acknowledges that there is a presumption of service connection for arthritis that manifests during service or to a compensable degree within the first post-service year, and then again "at any later date, however remote." See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has reported that his chiropractor told him that there is a lot of arthritis in his back. See February 2011 VA examination. However, during the current appeal period, the medical evidence, to include radiographic studies, do not show arthritis. See e.g., February 2011 VA examination. Further, the Veteran's long-time chiropractor diagnosed the Veteran with degenerative disc disease and not arthritis. See March 2016 private medical opinion from Donohue Chiropractic. Nevertheless, even if the Veteran's chiropractor considers degenerative disc disease is "arthritis" for VA benefits purposes under 38 C.F.R. § 3.309(a), there is still no probative lay evidence or medical evidence of arthritis symptoms that manifested in service or that any such symptoms continued since alleged onset in service. Indeed, as discussed above, the Veteran's reports as to low back symptoms beginning in service and continuing since service are of no probative value and are outweighed by the probative contemporaneous service treatment records showing that no back symptoms manifested in service. Furthermore, the above discussed lay and medical evidence clearly show an intercurrent cause of a post-service low back injury that occurred in 1980. For these reasons, the preponderance of the evidence is against a finding of continuity of arthritis symptomatology since service. For these reasons, even if the Veteran currently has low back arthritis, such arthritis is not entitled to the presumption of service connection. See generally 38 C.F.R. § 3.303(b), 3.307, 3.309(a). Because the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disability, the benefit of the doubt provision does not apply, and the claim on appeal must be denied. See 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs