Citation Nr: 1637723 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 09-31 012 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1972, from October 1974 to October 1976, and from January 1991 to July 1991. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision of the RO that declined to reopen a claim for service connection for a back disability on the basis that new and material evidence had not been received. The Veteran timely appealed. In an August 2014 decision, the Board determined that new and material evidence had not been received to reopen the claim. The Veteran appealed the August 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Memorandum Decision, the Court vacated the Board decision and remanded the case to the Board for readjudication. Judgment was entered in October 2015. Thereafter, the case was returned to the Board, consistent with the Court's judgment. In March 2016, the Board found new and material evidence to reopen the Veteran's claim and remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Arthritis of the back was not manifested during active service or within the first year after separation, or during Navy Reserve service or National Guard service; and a current back disability is not otherwise related to a disease or injury during service. CONCLUSION OF LAW A back disability was not incurred in active service; and arthritis of the back may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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). VA's duty to notify was satisfied by a September 2008 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The RO or VA's Appeals Management Center (AMC) has obtained the Veteran's service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis The Veteran seeks service connection for a current back disability which he believes started when he fell from a water truck while on active duty in 1971. Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases-including arthritis-may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's enlistment examination in January 1968 reveals a normal spine. His service treatment records show several small abrasions on the mid-back from falling off a water truck in September 1971. X-rays at the time revealed that the Veteran's lumbar spine bony structure was within normal limits. The Veteran continued to complain of low back pain. The assessment later that same month was lumbosacral strain. Clinical evaluation of the Veteran's spine at separation in March 1972 was normal. Navy Reserve records show that the Veteran checked "no" in response to whether he ever had or now had recurrent back pain in February 1974; and clinical evaluation of the spine at that time was normal. With regard to the Veteran's second period of active service, his service treatment records show that he again checked "no" in response to whether he ever had or now had recurrent back pain at separation in October 1976; and clinical evaluation of the spine at that time was normal. Moreover, Navy Reserve records show that the Veteran checked "no" for recurrent back pain in February 1978, May 1979, May 1982, May 1984, March 1985, April 1986, April 1987, and in June 1989; and clinical evaluation of the spine was normal each of those times. Significantly, however, there are no reports of clinical evaluation or medical history completed by the Veteran during his third period of active service from January 1991 to July 1991. Records also show that the Veteran served in the California National Guard from August 1992 to September 1996. X-rays taken of the lumbosacral spine in April 1998 first reveal an impression of a minor old compression fracture T-12 with spondylosis and narrowed interspace of L5-S1. In May 1998, the Veteran reported having a lot of back pain; he also reported that he never had back pain before he went to active service in Saudi Arabia. He reported noticing that his back was hurting for no reason. National Guard records reveal a normal spine upon clinical evaluation in March 2000; and the Veteran again checked "no" in March 2000 in response to whether he ever had or now had recurrent back pain. During a March 2001 neurological consultation, the Veteran reported having chronic low back pain for nine years that was related to activity. The report of a VA Persian Gulf War examination in April 2003 includes a diagnosis of chronic low back pain. MRI scans of the Veteran's lumbar spine in October 2004 reveal multi-level degenerative spondylotic changes that cause mild central stenosis and mild foraminal narrowing. The Veteran reported a history of injuring his back ten years earlier, with worsening low back pain and leg symptoms. In December 2004, he reported that his back still bothered him from time to time. In February 2005, he reported worsening low back pain after he helped a friend in moving and carried some heavy boxes. During a VA Agent Orange examination in February 2006, the Veteran reported having problems with low back pain since February 1992. Following examination, the diagnosis was chronic low back pain. The Veteran again complained of low back pain after a motor vehicle accident in December 2012. X-rays taken of the lumbosacral spine then revealed moderate osteoarthritis in the lumbar spine with degenerative disc disease, and without any acute osseous abnormalities. Following the Board's March 2016 remand, the Veteran underwent a VA examination in April 2016 for purposes of determining the etiology of his current back disability. The examiner reviewed the Veteran's medical history and his service treatment records. The examiner noted that the Veteran had never checked the box indicating "recurrent back pain" in any examination, and none of the examinations revealed abnormal findings. The examiner also noted that post-service treatment records include findings of low back pain. Following examination in April 2016, the examiner opined that the Veteran's back disability was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event, or illness. In support of the opinion, the examiner reasoned that the Veteran's separation examination was carried out slightly more than five months after the in-service treatment for low back pain; the spine examination was normal, and the Veteran denied recurrent back pain. None of the medical examinations through the year 2000 revealed any complaints or back disability. The April 2016 examiner noted that the Veteran was diagnosed with lumbosacral strain in active service in 1971, which resolved and did not recur in the subsequent period of active service. The Veteran reported having "occasional" low back symptoms starting again in 1991. The April 2016 examiner explained that there was no medical evidence available to provide any other diagnosis in 1991, besides the existing diagnosis of lumbosacral strain-which was an acute and intermittent condition, manifesting for the first time since 1971. The April 2016 examiner then noted another new diagnosis of degenerative disc disease at all levels of the lumbosacral spine, by X-rays taken in October 2008. The April 2016 examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's current back disability-to include T-12 compression fracture, lumbosacral spine spondylosis, and lumbosacral spine degenerative disc disease-was due to service or any incident in service, to include the in-service injury in September 1971. In support of the opinion, the April 2016 examiner reasoned that the Veteran had a single episode diagnosed as lumbosacral strain in September 1971, from which he fully recovered. The condition was not identified again in the separation examination five months later, nor in annual physical examinations through the year 2000. There is no medical evidence of any back condition being present in the year following separation in 1991. Although the Veteran reported a history of back pain dating back to 1991, the April 2016 examiner reasoned that the medical evidence supports a diagnosis of intermittent lumbosacral strain for these back complaints. The April 2016 examiner explained further that this condition was not due to or caused by the Veteran's active service, because his single episode in 1971 resolved entirely and did not recur for at least twenty years. Again, the April 2016 examiner opined that the Veteran's lumbosacral strain in active service in 1971 was not a chronic and disabling condition; and that the evidence supports a finding of a new episode of an intermittent acute low back strain occurring around 1991. In this regard, the Board notes that service treatment records do not reveal any complaints or trauma to the Veteran's back during his third period of active service from January 1991 to July 1991. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran reportedly started to notice back pain when he returned from active service in Saudi Arabia in June 1991, the April 2016 examiner opined that the Veteran experienced acute and intermittent low back strain in 1991 and that diagnosis does not constitute a chronic condition present within one year after separation. As documented above, National Guard records reveal a normal spine on clinical evaluation in March 2000. The Board also finds statements made directly to health care providers during the course of treatment to be inherently more credible than those offered years later in support of a claim for monetary benefits. As noted above, certain chronic diseases-including arthritis-may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, there is no evidence of arthritis of the back manifested to a compensable degree within the first post-service year following each period of active service. Therefore, presumptive service connection for the chronic disease of arthritis is not warranted. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he experienced back pain during active service. Here, the Veteran is competent to report what occurred in service because his statements regard his first-hand knowledge of a factual matter. The Board finds, however, that his statements are not credible with respect to continuity of symptomatology. Again, the Veteran checked "no" in response to whether he ever had or now had recurrent back pain in examinations dated in 1978, 1979, 1982, 1984, 1985, 1986, 1989, and 2000. Thus, it is not the absence of records, but rather the fact that the Veteran specifically denied such pain through the years that the Board finds probative. Furthermore, the Veteran is not competent to provide an etiology opinion linking his current back disability to active service, as this is an inherently medical question, beyond the capacity of a lay person to observe. The examiner's opinion is entitled to greater probative weight than any lay statements on the matter, as the examiner reviewed the pertinent history to include the service treatment records and post-service treatment records, conducted a physical examination, and provided an opinion with underlying reasons for the conclusions that is not contradicted by the record. The remaining evidence is against the Veteran's claim. In particular, the normal findings in service treatment records, Navy Reserve records, and National Guard records help to establish that arthritis was not "noted" at any time during active service; and the Veteran's degenerative disc disease of the lumbosacral spine was diagnosed long after service. A continuity of symptomatology of arthritis since active service has not been established. In addition, there is no competent evidence linking the Veteran's in-service fall off a water truck in active service to his current back disability. While the Veteran had been invited specifically in September 2008 to submit competent evidence to substantiate his claim for service connection, he has not done so. See 38 U.S.C.A. § 5107(a) (noting it is a claimant's responsibility to support a claim for VA benefits). Nothing in the record reflects that the in-service fall off a water truck in 1971 has resulted in disability (T-12 compression fracture, lumbosacral spine spondylosis, and lumbosacral spine degenerative disc disease). Lastly, because the April 2016 examiner attributed the Veteran's symptoms of back pain to known clinical diagnoses, his back pain cannot be considered an undiagnosed illness or a qualifying chronic disability for entitlement to service connection based on the Veteran's service in the Persian Gulf. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. For the reasons and bases stated above, the Board concludes that the evidence weighs against granting service connection for a back disability. ORDER Service connection for a back disability, to include arthritis of the back, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs