Citation Nr: 1637887 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 09-20 373 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected chondromalacia of the patella and degenerative arthritis of bilateral knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1983 to December 1986. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from decisions of the RO in April 2006, in June 2006, and in February 2007 that, in pertinent part, denied service connection for a low back disability. The Veteran timely appealed. In August 2013 and in February 2016, the Board 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 A low back disability was not present during active service, and is not otherwise related to service; arthritis of the lumbar spine was not manifested during active service or within the first year after separation; nor is a low back disability due to or aggravated by the service-connected chondromalacia of the patella and degenerative arthritis of bilateral knee. CONCLUSION OF LAW A low back disability was not incurred in service, and is not proximately due to or the result of a disease or injury attributable to service; and arthritis of the lumbar spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1101, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (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 November 2005 and July 2006 letters. 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 her 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 Direct Service Connection 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). Notably, arthritis is considered chronic under section 3.309. Service treatment records do not reflect any findings or complaints of low back pain. Records do show that the Veteran fell and hurt her tailbone in November 1984, which was then painful when sitting and bending. Examination revealed point tenderness of the distal coccyx. The assessment at the time was status-post trauma to coccyx, rule out fracture. X-rays taken of the coccyx were normal. In essence, no low back disability was found in active service. The report of an October 2013 VA examination includes a diagnosis of lumbar spondylosis. Following examination, the October 2013 examiner opined that the Veteran's spondylosis of the lumbar spine was not caused by or aggravated by her active service or by any service-connected disabilities. In support of the opinion, the October 2013 examiner reasoned that the service treatment records contain no evidence of any back condition; and VA treatment records, dated in May 2006, reveal that the Veteran's low back started hurting in 2001. Another VA examiner in April 2016 agreed with the October 2013 opinion, and explained that the Veteran's "slip and fall" in active service had resolved because there were no other sequela or complaints in active service; and all X-rays were negative. The April 2016 examiner also noted that the Veteran's current degenerative disc disease with bulging disc was not found in active service or within the first post-service year; and that her previous manual labor employment required the Veteran to do heavy lifting, as documented in the Social Security records. The April 2016 examiner reasoned that this type of work contributed to degenerative disc disease of the lumbar spine. 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). Here, the April 2016 VA examiner reviewed the Veteran's medical history and completed a comprehensive examination, and concluded against a relationship between the Veteran's current low back disability and active service. The examination report is fully articulated and contains sound reasoning. The Board finds the April 2016 VA examiner's opinion to be persuasive in finding that the Veteran's current low back pain is not a residual of, or related to the events in active service. Notably, the Veteran specifically reported that her low back pain started years later in 2001. The Board finds this opinion highly probative on the essentially medical question presented. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after service, and against relating a current disability to disease or injury in active service. While the Veteran is competent to report symptoms, she is not competent to provide an etiology opinion linking a current low back disability to active service, as this is beyond the capacity of a lay person to observe. Moreover, even if she were competent to render a diagnosis and opinion, her opinion is outweighed by the April 2016 examiner's opinion that current low back disability is not related to disease or injury in active service. The examiner's opinion is entitled to greater probative weight as the examiner reviewed the history, conducted a physical examination, and provided an opinion that is supported by a rationale. For these reasons, direct service connection is denied. Presumptive Service Connection 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 low back within the first post-service year. Therefore, presumptive service connection for the chronic disease of arthritis is not warranted. Secondary Service Connection The Veteran primarily asserts that her low back disability is secondary to her service-connected chondromalacia of the patellar and degenerative arthritis of bilateral knee. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. In this case, VA records, dated in September 2006, show that the Veteran reported a muscle injury without fall in September 2001; and reported suffering with low back pain that night, which progressively worsened ever since. Records show complaints of chronic low back pain, and that the Veteran underwent a series of spinal injections in 2006 and in 2007. VA records, dated in August 2013, show a past medical history of degenerative joint disease with knee and back pain; and reflect worsening knee pain from recent activities. Records show that a VA physician at the time thought that the worsening of back was secondary to knee; and the VA physician then concentrated on treating the Veteran's knee problems. The Board finds that the August 2013 physician provided no rationale whatsoever for the opinion that the "worsening of back" was thought to be secondary to the Veteran's knee problems. Hence, the opinion lacks probative value. Following the Board's February 2016 remand, the Veteran underwent a VA examination in April 2016 for purposes of determining whether her low back disability was proximately due to or the result of, or aggravated by her service-connected chondromalacia of the patella and degenerative arthritis of bilateral knee. The claims file was reviewed by the examiner, and the examiner noted the Veteran's medical history. Following examination in April 2016, the examiner opined that the Veteran's low back disability was less likely than not caused by the service-connected bilateral knee disability. The examiner explained that degenerative joint disease of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process, and/or due to repetitive injury (heavy lifting). The examiner also reasoned that the medical records indicate that there has been no significant change in arthritis over the years, and that the knees and lumbar spine are distinctly separate anatomically from one another. The examiner also opined that there is no evidence supporting the concept of a knee condition aggravating degenerative disc disease of the lumbar spine. The examiner again reasoned that this is more likely due to age, body habitus, increased body mass index, and occupational history of heavy lifting. Also, there has been no noted aggravation of spine disease, as evidenced by stable radiographs over the years. The Board finds the April 2016 examination report to be persuasive in finding that a current low back disability was less likely due to or aggravated by the service-connected chondromalacia of the patella and degenerative arthritis of bilateral knee. The April 2016 examiner reviewed the medical history and provided a rationale which considered whether there was any relationship between a bilateral knee disability and degenerative disc disease of the lumbar spine. The Board finds the opinions in the April 2016 examination report are factually accurate, fully articulated, and contain sound reasoning. Therefore, the opinions are afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran also contends that her low back disability was caused by or had worsened due to her chondromalacia of the patella and degenerative arthritis of bilateral knee, she is not shown to have the medical expertise to offer an opinion on such a complex medical question. She is not shown to be competent to render an opinion as to the nature of her underlying low back disability, or to identify that such disability is related to service or due to or aggravated by her service-connected bilateral knee disability. Again, the Board finds that the issue presented in the case is not one in which the Veteran's lay contentions can serve to support an award of service connection. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for a low back disability, to include as secondary to chondromalacia of the patella and degenerative arthritis of bilateral knee. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability, to include as secondary to chondromalacia of the patella and degenerative arthritis of bilateral knee, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs