Citation Nr: 1732829 Decision Date: 08/11/17 Archive Date: 08/23/17 DOCKET NO. 10-45 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to May 1971, during which he received the Purple Heart Medal and Vietnam Service Medal. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at a September 2013 videoconference hearing. A copy of the hearing transcript has been associated with the claims file. In February 2014 and July 2016, the Board remanded the issue on appeal for additional development. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT Arthritis of the spine was not manifest during service or within one year of service, and neither it nor mild scoliosis and lumbar disc herniation are otherwise attributable to service. CONCLUSION OF LAW Degenerative arthritis of the spine, mild scoliosis, and lumbar disc herniation were not incurred in or aggravated by service and arthritis may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case. The Veteran was afforded a VA examination in May 2009 and VA addendum opinions in April 2014, September 2016, and November 2016. The Veteran has not alleged any notice or development deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). A congenital or developmental defect is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303 (c), 4.9 (2016). A congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Furthermore, the presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304 (b), does not apply to congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390 (2009). Service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin, if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. See 38 C.F.R. §§ 3.303 (c), 3.306 (2016); VA General Counsel Prec. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). Although service connection cannot be granted for a congenital or developmental defect, service connection may be warranted for superimposed disease or injury that occurs during service. See VAOPGCPREC 82-90. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154 (b) (West 2014); 38 C.F.R. § 3.304 (d) (2016). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The service treatment records (STRs) reveal that the Veteran had a history of pain of the low back prior to entry in service. The Veteran noted on his pre-induction report of medical history, dated July 25, 1969, that he had a history of recurrent back pain; specifically muscle spasms in the lumbosacral area. The July 25, 1969 examiner noted on physical examination recurrent back pain, leg cramps, and lumbosacral muscle spasms. The Veteran complained of back pain during service. Imaging studies obtained on the Veteran's thoracic spine dated June 1, 1970 demonstrated mild scoliosis with convexity to the right; which was indicative of dextroscoliosis; a congenital anomaly. The Veteran sustained a minor cervical and thoracic strain after being involved in a motor vehicle accident in August 1970. The Veteran was injured in a friendly fire incident in January 1971 where he sustained shrapnel injuries to his left forearm, but there is no evidence of injury to the thoracic or lumbar spine. Subsequently, in April 1971, the Veteran underwent a physical evaluation board (PEB) proceeding based on the January 1971 friendly fire incident. The PEB noted incomplete paralysis of the left median nerve following penetrating fragment wound of left distal arm, manifested by constant pain on volar surface of forearm, lateral palm, thumb, index and middle fingers, severely diminished grip and pinch strength and discrimination, severe, minor. The PEB further noted the Veteran had a scar on the left arm over the medial epicondyle, tender and painful upon objective examination. There was no indication of low back abnormalities during the PEB proceeding. There were no further complaints, finding, treatment or diagnosis for the low back during service. Beginning in 1992, the record reflects that the Veteran received treatment for low back complaints. In a March 1992 neurological consultation report by Dr. F.E., it was reported that the Veteran sustained a work related injury in January 1992. In March 2012, Dr. J.C. reported that he had treated the Veteran in 1992 for low back pain and decreased reflexes to both knees. The Veteran was diagnosed with disc disease with radiculitis. Dr. J.C. reported that during the following years, the Veteran developed chronic disc disease along with continuous low back pain and osteoarthritis. The Veteran was treated by an orthopedist and a neurologist. In 2005, the Veteran was diagnosed with disc herniation at L4-L5. On August 22, 2011, the Veteran was examined and was having chronic low back pain. Physical examination on February 29, 2012 revealed that the Veteran continued with back pain and tenderness on the left side on leg raise. Subsequent medical records continued to reflect treatment for back complaints. As noted, the Veteran was afforded a VA examination in May 2009. At the time the Veteran reported that he began having back problems in Vietnam in 1970 with intermittent back pain since then. He reported that he went to airborne school and had no injuries after five jumps at Fort Benning prior to Vietnam. He reported no injury in Vietnam and claimed no documentation about his low back while on active duty. He also reported that he hurt his back in a work injury in 1992 while working as a mail handler with the United States Postal Service (USPS) resulting in a Workers' Compensation claim. He reportedly worked at the USPS for 22 years. Following examination of the Veteran, the examiner concluded that the Veteran's low back condition was not caused by or a result of service. He indicated that there was a nexus between the Veteran's low back disability and his on-the-job injury. As noted the Board remanded the claim in February 2014 as the 2009 VA examiner failed to adequately consider the Veteran's in-service automobile accident, in-service diagnoses, and consistent reports of back pain, and the opinion did not address the question of aggravation. In April 2014 a VA addendum opinion was obtained, subsequent to February 2014 Board remand. The examiner was asked to provide an opinion as to whether there was clear and unmistakable medical evidence that the Veteran had a pre-existing low back disability, and if so whether there was clear and unmistakable medical evidence that the Veteran's pre-existing condition was not aggravated by service. Additionally, the Board directed the examiner to note any diagnosed congenital or developmental low back defects and discuss whether there was any evidence of superimposed low back disability in service. Although the examiner had full review of the record and reviewed Dr. F.E. and Dr. J.C.'s opinions and opined it was less likely as not (less than 50 percent probability) that the Veteran's pre-existing low back disability was permanently aggravated by his active duty service, he limited his opinion to the automobile accident in service and exacerbations of back pain in-service. The examiner did not consider the Veteran's complaints of landing on his back after a friendly fire incident, carrying a heavy rucksack and radio in service. In light of the foregoing, the Board remanded this case for a VA examination and opinion to address whether there was clear and unmistakable evidence that a low back disability pre-existed the Veteran's February 1970 induction into service; whether there was clear and unmistakable evidence that a pre-existing low back disability was not permanently aggravated by the Veteran's active service; and if any congenital or developmental low back defect is diagnosed, whether there is any evidence of a superimposed low back disability in service that resulted in a current low back disability. Thereafter, in September 2016, another VA addendum opinion was obtained. The VA examiner noted diagnoses of degenerative arthritis of the spine and lumbar disc herniation. As to direct service connection, the VA examiner opined that the Veteran's low back disability is less likely as not related to his military service. The examiner noted a history of present illness and the review of the Veteran's STRs as well as the Veteran's post-service treatment records. The examiner noted that the Veteran suffered from chronic intermittent thoracic back pain since the age of 12 years old secondary to working in "cotton fields" where he was required to lift and carry "200 pound" bales of cotton. The examiner reported that it was noted on the Veteran's military induction physical form that he suffered from recurrent back pain and leg cramps; on physical examination, as the physician noted the Veteran's lumbosacral muscle spasms July 25, 1969. Imaging studies obtained on the Veteran's thoracic spine dated June 1, 1970 demonstrated mild scoliosis with convexity to the right; which is indicative of dextroscoliosis; a congenital anomaly. The examiner noted that the Veteran reported that he never injured his back while on active duty; although his medical records document that he sustained a minor cervical and thoracic strain after being involved in a motor vehicle accident in August 1970. As to service connection based on aggravation, the examiner opined that the pre-existing dextroscoliosis of the thoracic spine was not permanently aggravated by the Veteran's motor vehicle accident; as imaging studies obtained during the same time frame were unchanged from the Veteran's previous studies demonstrating mild thoracic scoliosis. The examiner further noted that the Veteran stated that his thoracic back was occasionally aggravated by carrying a radio and sleeping on hard surfaces while in Vietnam; but the Veteran did not permanently injure his thoracic spine from engaging in these activities. The examiner further noted that the Veteran did not injure his thoracic or lumbar spine while being hit by friendly fire in January 1971 and the Veteran reported that he sustained only shrapnel injuries to his left forearm. As to the congenital low back defect, the examiner reported that the Veteran had a pre-existing thoracolumbar back condition and there was no documentation that he injured or aggravated his lower back while on active duty. The examiner noted that there was not a superimposed low back disability in service which is substantiated by the Veteran who reported that he never injured his lower back while on active duty and the real injury occurred while working as a postal carrier in 1992. The Veteran stated that after separating from service, he worked at the USPS and although he occasionally experienced thoracic back pain which had been longstanding and existed prior to service, he had been asymptomatic for lower back pain until 1992 when he injured his back at work. The Veteran was evaluated by a neurologist and reported that prior to this incident, he had not suffered from lower back pain; he was found to have lumbar disc herniation which was deemed to be an occupational related injury and he was medically retired from the USPS through Workers' Compensation disability for chronic low back. The examiner concluded that it is medically undebatable (clear and unmistakable) that a low back disability (as opposed to symptoms) pre-existed the Veteran's service. The Veteran was diagnosed with dextroscoliosis of the thoracolumbar spine which is a congenital abnormality, and review of the Veteran's medical records to include imaging studies obtained in 1971 of the thoracic spine prior to being medically separated for shrapnel injury to the left forearm were unremarkable for evidence of a superimposed low back disability. The examiner opined that it is less likely as not (less than 50 percent probability) that any current low back disability was caused by an in-service injury, disease, or event, to include the August 1970 automobile accident, landing on the back after being hit by friendly fire in January 1971, and carrying a heavy rucksack and a heavy radio. In November 2016, another VA addendum was obtained as all of the remand directives were not accomplished. The examiner indicated that review of the Veteran's service treatment records documents that he reported having intermittent episodes of thoracolumbar pain during induction into the military that was secondary to working in the occupation as a laborer. Imaging studies obtained on the Veteran's thoracolumbar spine shortly after entering the military demonstrated minimal dextroscoliosis of the thoracic spine. In the absence of trauma and/or natural degeneration this is considered to be a congenital anomaly. The Veteran sustained a shrapnel injury to his left forearm damaging the median nerve resulting in a Medical Evaluation Board (MEB)(03/16/1971). During the MEB processes the Veteran underwent a thoracolumbar examination which was unremarkable except for having mild dextroscoliosis of the thoracolumbar spine; which was not included in to the MEB. The Veteran was involved in motor vehicle crash while on leave (08/1970) sustaining a minor back strain; which was evaluated and treated without residual. Although he complained of intermittent back pain while on active the Veteran was not diagnosed with a superimposing thoracolumbar condition and his pre-existing thoracolumbar dextroscoliosis was not permanently aggravated beyond the natural progression of this disorder by serving time in the service. The Veteran reported that he managed to get through Basic Combat Training and Airborne School without having a problem with his back. He was involved in a motor vehicle crash (08/1970) resulting in acute thoracolumbar strain which resolved with residual and did not interfere with deploying to Vietnam. The Veteran stated that while deployed to Vietnam he was required to carry a heavy ruck sack and a radio which did not further aggravate his back; and he did not injure his back during the friendly fire mortar attack which resulted in a shrapnel injury to his left forearm and subsequently an MEB. The Veteran reported that he was used to heavy lifting and carrying secondary to working as a laborer in cotton fields since the age of 12 years; prior to being inducted into the military. He stated that while on active duty he never sustained a significant or debilitating injury his lower back. The Veteran reports that after separating from the military he applied and went to work at the post office. Review of his medical records is silent for a complaint of thoracolumbar pain 20 years, 7 months and 20 days after separating from the military with no nexus. There is documentation that the Veteran injured his lower back (01/09/1992) while working at the USPC where he was medically retired due to a Workers' Compensation low back injury. For these reasons it is less likely than not (less than 50% probability) that any current low back disability was caused by an in-service injury, disease, or event, to include the August 1970 automobile accident, landing on the back after being hit by friendly fire in January 1971, and carrying a heavy rucksack and a heavy radio. There are medical opinions and statement in this case. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also 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."). In this case, there is no private opinion that provides a full explanation and rationale of the Veteran's past and current diagnoses. Conversely, the VA examiner, in the September 2016 and November 2016 opinions, discussed the Veteran's medical history, provided a fully articulated opinion, and also furnished reasoned analyses. The Board therefore attaches significant probative value to the opinions, and the most probative value in this case, as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The examiner concluded that there was clear and unmistakable evidence that the Veteran had thoracolumbar scoliosis prior to service and that there was no evidence of aggravation of that anomaly by superimposed disease or injury in service. Similarly, the most probative evidence of record does not show that a current low back disability is related to service to include the motor vehicle accident, friendly fire incident, carrying a heavy rucksack and radio during service. The Board has considered the Veteran's opinion that his current back problems are related to service. The Board has considered the Veteran's opinion; however, as a lay person, the Veteran does not have the same medical training or expertise to render a medical opinion on this issue as the VA examiner, and this case involves a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the most recent VA examiners, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for a low back disability, including mild scoliosis and lumbar disc herniation, is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs