Citation Nr: 1722935 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 10-11 312 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a back disability, to include arthrosis of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD J. Rohde, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from March 1984 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 rating decision of the RO in Houston, Texas, which, in pertinent part, denied service connection for a left shoulder injury, a right shoulder injury, and a back disability, to include arthrosis of the lumbar spine. In an October 2016 rating decision, during the pendency of this appeal, the RO granted service connection for a right and left shoulder injury. In February 2017, the Veteran testified in a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. During the pendency of this appeal, before a Board decision was issued, the RO granted service connection for residuals of a left shoulder injury. 2. During the pendency of this appeal, before a Board decision was issued, the RO granted service connection for residuals of a right shoulder injury. 3. The Veteran is currently diagnosed with a back disability, to include arthrosis of the lumbar spine. 4. The Veteran hyperextended the back while playing basketball during service in February 1992. 5. The currently diagnosed back disability, to include arthrosis of the lumbar spine, is not related to the hyperextended back injury while playing basketball in February 1992, or any other injury, disease, or event during service. 6. The Veteran has not experienced "chronic" in-service symptoms of a back disability, to include arthrosis of the lumbar spine. 7. The Veteran has not experienced "continuous" post-service symptoms of a back disability, to include arthrosis of the lumbar spine. 8. The back disability, to include arthrosis of the lumbar spine, did not become manifest to a degree of 10 percent or more within one year after date of separation from service. CONCLUSIONS OF LAW 1. As to the issue of service connection for a left shoulder injury, there remains no question of fact or law to be decided by the Board. 38 U.S.C.A. §§ 7104(a), 7105 (West 2014). 2. As to the issue of service connection for right shoulder injury, there remains no question of fact or law to be decided by the Board. 38 U.S.C.A. §§ 7104(a), 7105 (West 2014). 3. A back disability, to include arthrosis of the lumbar spine, was not incurred in active military service and may not be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. 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. VA satisfied its duty to notify the Veteran in the development of the claim. In March 2009, VA issued the Veteran VCAA notice that informed of the evidence generally needed to support a claim for service connection, what actions needed to be undertaken, and how VA would assist in developing the claim. The notice was issued to the Veteran prior to the July 2009 rating decision from which this appeal arises. Further, the issue was readjudicated in an February 2010 Statement of the Case (SOC), and in an October 2016 Supplemental Statement of the Case (SSOC); therefore, there was no defect with respect to the timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records, private treatment records, and VA examination reports. Second, VA satisfied its duty to obtain a medical opinion when required. In December 2009, VA provided the Veteran with an examination concerning the back disability. The medical examination and opinion are of record. To that end, when VA undertakes to either provide an examination or to obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA medical examination report reflects that the VA examiner reviewed the record, considered the medical literature, and answered all relevant questions. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2)(2016) requires that the Veterans Law Judge (VLJ) who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. During the course of the hearing, the VLJ advised the Veteran of the issue on appeal, and posed several questions in order to elicit the kind of information and evidence needed to support the claim. The Veteran's representative advanced wanting to obtain a disability benefits questionnaire (DBQ) from an orthopedic doctor to assess the Veteran's current back disability, and asked the VLJ to keep the record open for 60 days. The VLJ left the record open for 60 days as requested; however, the Veteran did not submit a DBQ or any other evidence during that time. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the VLJ. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. All relevant documentation, including VA and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the record as to the issues on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Service Connection Law and Regulation Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthrosis of the lumbar spine (degenerative disease of a joint) is a chronic disease (arthritis) under 38 C.F.R. § 3.309(a). "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening." Webster's Medical Desk Dictionary 501 (1986). See Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection). As discussed below, arthrosis is a form of arthritis; therefore, 38 C.F.R. § 3.303(b) applies to the current back disability, to include arthrosis of the lumbar spine, issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. 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. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and chronic diseases such as arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran has asserted that the current back disability, to include arthrosis of the lumbar spine, is due to a basketball injury in service in February 1992 that resulted in a hyperextended back. The Board finds that the Veteran is currently diagnosed with a back disability, to include arthrosis of the lumbar spine, per the December 2009 VA examination report. Arthrosis of the lumbar spine is a form of arthropathy of the spine, also referred to as facet joint arthropathy. Dorland's Illustrated Medical Dictionary 158 (32nd ed. 2012). The definition of osteoarthritis is "a type of spondylarthritis centered in facet joints, with disk degeneration and pain; it is most common in the lumbar region and also occurs in the cervical region. Called also facet or facet joint arthritis and facet or facet joint arthropathy." Dorland's Illustrated Medical Dictionary 1344 (32nd ed. 2012). Accordingly the Board recognizes that arthrosis of the lumbar spine qualifies as arthritis of the lumbar spine. The Board finds that the Veteran hyperextended the back while playing basketball during service in February 1992. Service treatment records reflect that the Veteran received treatment for a hyperextended back in February of 1992. The service treatment records reflect that the back injury was diagnosed as a back strain, and that the Veteran was given Motrin for the pain. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the Veteran's currently diagnosed back disability, to include arthrosis of the lumbar spine, is not related to the basketball injury during service in February of 1992. Service treatment records are silent for any other back complaint or diagnosis preceding or following the basketball accident in February 1992. On the February 2010 substantive appeal (VA Form 9), the Veteran advanced having a back injury during service, and to not having any other back injury after service that could account for the current back pain. Private (medical) treatment records reflect that the Veteran went to physical therapy for back and shoulder pain in November 2009. The Veteran reported during physical therapy that the back pain was due to a basketball accident during service many years ago. The Veteran's private treatment records from 2005 until November 2009 reflect no complaints of back pain. The Veteran also never reported taking Motrin or any other over the counter pain medication to private physicians. The Veteran received physicals from 2005 through 2009 that included an examination of all the Veteran's body systems, and did not report any back problems or pain from 2005 until November 2009. In December 2009 the Veteran was afforded a VA examination of the spine. In the medical examination report, the VA examiner opined that the Veteran's back disability, to include arthrosis of the lumbar spine, was less likely than not caused by the basketball accident, or any other in-service event, injury, or disease. The VA examiner reasoned that the current back disability was not due to any event, injury, or disease during service because of the long delay in onset of symptoms, and that the Veteran did not have a complaint of back pain until 17 years after service. The December 2009 VA medical examination report also reflects that the VA examiner conducted and in-person examination, reviewed the VA claims file, and considered the Veteran's lay statements regarding any back problems; therefore, the Board finds the December 2009 VA examination report adequate and highly probative. In February 2017 at a Boarding hearing, the Veteran testified that the back pain had started after the February 1992 basketball accident, and had been continuous afterwards. The Veteran also testified to seeking medical treatment for the back pain shortly after service, and self-medicating with Motrin continuously after service. The Veteran testified that the only back injury in service was the basketball related injury in February 1992, and otherwise only had normal sore muscles or tired muscles during service. The Veteran testified having a back injury due to work as a corrections officer approximately seven years ago, and that the injury resulted in missing two days of work. The Board finds the Veteran's lay statements and testimony are not credible regarding the history of back problems. The Veteran's lay statements and testimony are inconsistent with each other, and inconsistent with the contemporaneous medical evidence of record. The Veteran advanced in the February 2010 substantive appeal (VA Form 9) to not having any other back injury after service that could account for the current back pain; however, as discussed above, the Veteran testified at the February 2017 Board hearing to having a back injury approximately seven years ago that was severe enough to warrant time off from work. At the February 2017 Board hearing, the Veteran also testified to seeking medical treatment for back pain shortly after service, and taking Motrin for back pain continuously since service; however, as discussed above, the private treatment records, which include physical examinations that account for the musculoskeletal system, are silent for any back related problems, complaints, or diagnoses. The Veteran never reported the use of Motrin or other over the counter pain medication to the private physicians from 2005 through November 2009. Additionally, there is no other medical evidence of back pain, treatment, or diagnosis, from February 1992 until November 2009. The Board finds that these more recent statements and testimony are not credible because the record shows that they are inconsistent with, and outweighed by, the Veteran's own more contemporaneous histories and reporting. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Veteran contends that the February 1992 in-service basketball accident is the cause of a back disability, to include arthrosis of the lumbar spine. Although the Veteran has asserted that the currently diagnosed back disability, to include arthrosis of the lumbar spine, is related to the basketball accident during service, he is a lay person and, under the facts of this particular case that include no chronic in-service back symptoms and post-service back symptoms that did not manifest for many years, does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the back disability, to include arthrosis of the lumbar spine (a form of arthritis). The etiology of the Veteran's back disability, to include arthrosis of the lumbar spine (arthritis), is a complex medical question involving internal disease processes, only some of which are observable. Thus, while the Veteran is competent to report possible symptoms of a back disability, to include symptoms of arthrosis of the lumbar spine such as back pain, under the facts of this case, which include no chronic or continuous symptoms for many years, he is not competent to opine on whether there is a link between the disability and the basketball accident during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that ACL injury is "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The Board has also considered whether the Veteran's back disability, to include arthrosis of the lumbar spine (arthritis), may be granted on a presumptive basis. After a review of the evidence, lay and medical, the Board finds that symptoms of a back disability, to include arthrosis of the lumbar spine, did not have onset during service, did not become manifest to a degree of 10 percent or more within one year after the date of separation from service, and have not been continuous since service separation. As discussed above, the evidence does not show back problems or back pain until 17 years following service separation. The record does not show any medical evidence of complaint or treatment of back pain until November 2009. The 17 year period between service separation and the seeking of medical treatment for symptoms of a lumbar spine disability is one factor among other factors in this case that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against continuous symptomatology since service are the absence any back pain reports by the Veteran during private medical treatment, including full body physicals, from 2005 through November 2009, and the December 2009 VA examination report opinion. Review of all the evidence of record reflects no contemporaneous complaint, report, or diagnosis of symptoms of a back disability, to include arthrosis of the lumbar spine, prior to a November 2009 private treatment record. As the Veteran separated from service approximately 17 years prior to the November 2009 treatment and before claiming back pain as a symptom of a back disability, to include arthrosis of the lumbar spine, the evidence does not reflect chronic symptoms of a back disability, to include arthrosis of the lumbar spine, in service or within one year of service separation, or continuous symptoms of a back disability, to include arthrosis of the lumbar spine, since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) is not warranted. For these reasons, the Board finds that the currently diagnosed back disability, to include arthrosis of the lumbar spine, is not related to the Veteran's basketball accident during service, or otherwise related to service. As the weight of the evidence is against presumptive and direct service connection for a back disability, to include arthrosis of the lumbar spine, under 38 C.F.R. §§ 3.303, 3.307, and 3.309, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disability, to include arthrosis of the lumbar spine, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs