Citation Nr: 1735201 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 13-22 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: Don H. Jorgensen, Attorney ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to December 1977, and from June 1980 to March 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2009, the RO denied the Veteran's back claim. The Veteran filed a notice of disagreement dated in June 2010, and the RO issued a statement of the case dated in July 2013. The Veteran submitted her substantive appeal in August 2013. In February 2014, the RO denied the Veteran's bilateral shoulder claim. The Veteran filed a notice of disagreement dated in May 2014, and the RO issued a statement of the case dated in October 2014. The Veteran submitted her substantive appeal in October 2014. In May 2015, the Board reopened the Veteran's shoulder and back claims and remanded these issues for additional development. In March 2017, the RO continued the 30 percent evaluations for the Veteran's service-connected right and left knee disabilities. The Veteran filed a notice of disagreement with this decision dated in May 2017. The RO is still in the process of developing these claims. Thus, the Board does not have jurisdiction over these claims, and they will not be discussed in this decision. The issue of entitlement to service connection for bilateral shoulder disabilities is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT A lumbar spine disability has not been shown to have had its onset in service or within one year of service. CONCLUSION OF LAW The criteria for an award of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In May 2015, this matter was remanded for additional development, to request updated treatment records and provide additional VA examinations in connection with the claims. In June 2015, the Veteran was sent a letter requesting additional records. The Veteran responded in August 2015 that she had provided all records. Two authorization forms were submitted for additional providers. Review of the claims file indicates that records for one of the providers is on file, the other provider indicated that no records were available. In August 2015, additional VA examinations were conducted that answer in detail the questions raised by the May 2015 Board remand. As such, the Board finds that there has been substantial compliance with the terms of the multiple remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Service connection. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board notes that the Veteran had two periods of active military service, from September 1974 to December 1977, and again from June 1980 to March 1986. Service treatment records indicate that the Veteran was seen for complaints of back pain in November 1976 and March 1977. The assessment in November 1976 was muscle spasm. Examination indicated that the Veteran spine was normal. An x-ray in March 1977 indicated that the Veteran had complaints of back pain for over 7 months. Separation examination in May 1977 indicated normal spine. Treatment records from the Veteran's second period of active service showed no evidence of any compliant, diagnosis, or treatment for a low back disorder. Post service records indicate that an x-ray dated in May 1986 revealed no evidence of spondylolysis or spondylolisthesis. Vertebral body heights and intervertebral disc heights were maintained. There were four lumbar vertebral bodies with sacralization of L5 and spina bifida occulta at the L5 level. On examination in July 1986, the veteran reported onset of back pain following a rib injury in 1977. Examination revealed a marked lordosis of the lumbar spine with tenderness over the lumbosacral joint. There was pain on flexion to the left; otherwise, range of motion was within normal limits. The examiner diagnosed sacralized 5th lumbar vertebra. On examination in August 2011, the veteran reported treatment for low back pain during her first period in service. The Veteran also noted that she was involved in a motor vehicle accident after service in which the car was hit by an 18-wheeler. The Veteran reported that this made her back condition worse. The Veteran was noted to be on full social security disability for her back and knee conditions, and the examiner noted that the Veteran was unable to sit for long periods of time preventing her from sedentary work for more than short periods at a time. The Veteran's bilateral knee condition was indicated to prevent prolonged standing, walking, bending, kneeling, and lifting. Examination resulted in a diagnosis of degenerative disc disease of the lumbar spine. After the examination and a review of the Veteran's records, the examiner acknowledged the Veteran's treatment for back pain in service. However, the examiner opined that there did not appear to have been any significant chronic condition during the Veteran's military service that would have progressed to the current degenerative condition. Social Security disability records associated with the claims file indicated that the Veteran is in receipt of disability benefits for osteoarthritis and asthma. The records. include a pain questionnaire dated in November 2010 in which the Veteran dated onset of back pain to 1995. In May 2015, the Veteran's back claim was remanded for additional examination. The Board found that the August 2011 VA examination was not adequate for adjudication. The Board noted that the Veteran vehemently denied that she told the VA examiner that her back pain began after having a motor vehicle accident in 1987. Instead, she reported that it increased in severity for a few weeks after the accident, but that it began with heavy lifting that she had to do while in service. Also, the Board noted that the record contained an April 1989 radiological report that potentially showed degenerative changes, which should be addressed by the examiner. Finally, the Veteran's claim had been denied because her spina bifida occulta of the L5 vertebra was considered congenital. While congenital disabilities are generally not able to be service connected, additional disability due to aggravation by a superimposed condition can be service connected. The Board found that such an opinion should be elicited. The Veteran was afforded another VA examination in August 2015. The Veteran's claims file was reviewed in connection with the examination and report. The Veteran was diagnosed with degenerative joint and disc disease lumbar spine, anterolisthesis, L5-S1, spina bifida occulta, and transitional vertebrae, sacralization L5. The Veteran reported that she began having back pain in service when she worked in supply and was doing a lot of heavy lifting. She reported that she was seen several times in service for the back pain, and was treated with conservative measures such as physical therapy, medications. Currently, the Veteran reported that she had pain all the time. She reported that she had injections into the back in the mid 1990's, but had not had any surgeries. She was noted to take hydrocodone 10/325 for the pain. She indicated rare flare-ups, but indicated that she had significant pain limiting most activities, all day every day. The examiner found that, due to back issue alone, work would be limited to sedentary only. After examination, the examiner opined that it was less likely than not that the Veteran's current spine conditions were related to military service. In support of the opinion, the examiner stated: The Veteran is seen and examined and her C file is reviewed in extensive detail, with specific reference to multiple imaging studies as described in AMIE request, plain films in service and at VA exam, MRI of 1989. Review of the Veteran's service treatment records indicate only two events of lumbar spine pain, one in 11/1976, following delivery of an infant, and again in 03/1977. No further complaints of back pain are noted within that period of service which was completed 12/1977. She was reactivated on 06/1980, and on the personal history questionnaire for that re-entry medical exam, back pain was denied. There are no reports of lumbar pain during the following period of service through 03/1986. She completed a personal history questionnaire in 01/1986, at which time the item referencing back pain was denied. The narrative section of that form is notable only for references to her knee condition. She underwent a VA compensation exam in 07/1986, at which time she mentioned back pain and was noted only to have some soreness to touch in the lumbosacral area and some discomfort leaning to the left. X-rays done at that time indicated a sacralized L5 vertebrae, which is a common variant and congenital in nature. Some individuals will experience some discomfort with this variant, although that was not the case with this Veteran until the exam in July of 1986, she clearly denied back pain on exit exam, and her last tour of duty was without back pain complaints. The VA exam at that time, other than the soreness and the x-ray findings, was otherwise normal, with full range of motion and normal distal neurovascular exam. There was at that point, therefore, no evidence of any chronic disability present, she had been able to fulfill her duties of supply sergeant for 6 years without any restrictions due to her back. Soreness alone is not an indicator of disability. The next reference to back pain on a note is seen in 03/1994, at which time she reported that she had had back pain since 1988, which was well after the one year time frame following service. She was seen again in 08/1995 for low back pain, at which time she reported that this had been present since about 1987-1988, following a motor vehicle accident. The notes from a 1989 complaint are not seen, but there is an MRI from that time which did indicate some degenerative changes in the lumbar spine. There is reference to a prior CT scan and the report indicates no significant change since that CT scan, which would suggest that degenerative changes were present on that scan as well. The CT scan itself is not available for review, although the 1989 MRI report specifically indicates the date of that exam as October of 1987, again this is well after the one year time frame from discharge in 03/1986. She is seen again for back pain in 06/1996, at which time she indicated that she had been having back pain since 1987, no specifics are otherwise offered other than to indicate that the back pain at that time was caused by lifting a heavy oxygen cylinder. There is no evidence at the time of the VA exam of any significant disability related to this transitional vertebrae or the spina bifida occulta. She did have evidence, as clear as can be established, in 10/1987 of degenerative disease, although again, no evidence for any degenerative changes are present before then. On review of medical literature regarding this issue, a study of 4000 patients by Tini et al found no correlation between incidence of back pain in patients with transitional vertebrae compared to those without. In a similar study, Elster found no increase in degenerative disease in patients with transitional vertebrae vs those without, the only difference being that the pattern of degenerative disease, when present, varied among the two groups, although again, the baseline incidence was the same. In summary therefore, the service treatment records indicate no evidence of chronicity or disability with respect to back pain, the only report of back pain in 1976-1977 appeared to have resolved by 1980, as evidenced by personal history questionnaire denying back pain at that time and denied again on similar questionnaire in January of 1986. No significant disability related to her back pain appeared to be present until about 1989 when she underwent MRI, at which time degenerative changes began to be evident. X-rays done at [the] time of [the] VA exam in 1986 demonstrated no such degenerative changes. It is likely that the Veteran's disability currently is related wholly to the degenerative disc and joint disease, which has progressed over time. For the reasons outlined in detail above, it is less likely than not that the Veteran's current lumbar spine disability is related to military service. Based on the foregoing, the Board finds that service connection for a lumbar spine disability is not warranted. The record shows diagnoses related to this claim. However, the VA examiners that reviewed the Veteran's claims file, medical history, and contentions in connection with the claim, have concluded that the Veteran's current disability is not related to her military service. In this regard, the Board notes that the Veteran was diagnosed with sacralized 5th lumbar vertebra in July 1986. In addition, the August 2015 examiner found that, while the Veteran was noted to have sacralized L5 vertebrae in July 1986, this condition was congenital in nature and the examiner specifically found that there was no evidence of any significant disability related to transitional vertebrae or spina bifida occulta, indicating no aggravation or superimposed condition that may warrant service connection. The examiner also noted that a review of the medical literature indicated that there was no correlation between incidence of back pain in patients with transitional vertebrae compared to those without. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. 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, 22 Vet. App. at 304; 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, the VA examiner reviewed the Veteran's claims file and were apprised of the medical history and the Veteran's contentions regarding her claimed condition. After examination and review, the examiners provided definite opinions supported by evidence and a reasoned rationale. As such, the opinion is highly probative. The Veteran has contended on her own behalf that her back disability is related to her military service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that are observable and within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Specifically, in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, however, the question of whether her condition is related to military service is a complex medical question that is not subject to lay observation alone. Hence, the opinions of the Veteran in this regard are not competent in this case. Additionally, even though arthritis is a chronic disease and could serve as an independent basis for an award of service connection if proven, the evidence does not establish continuity of symptomatology here. The Veteran has indicated that she has had chronic pain in her back since service. And while the Veteran may have had arthritis in the spine as early as October 1987, the examiners indicated that her complaints of back pain in service had resolved and that arthritis did not begin again until more than one year after separation. The examiners specifically did not link this condition to service. As such, continuity of symptomatology from service is not shown in this case and cannot serve as a basis for service connection. In summary, the medical evidence in this case is against the claim. As such, the preponderance of the evidence is against service connection. Reasonable doubt does not arise 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 lumbar spine disability is denied. REMAND This case was previously remanded for a VA medical examination in May 2015. However, upon review of the August 2015 VA Shoulder and Arm Conditions examination, additional clarification is warranted as the examiner has not provided an opinion as to the Veteran's diagnosed bursitis in service. See 38 C.F.R. §4.2. Specifically, the Veteran's service treatment records indicate that the Veteran was seen in November 1976 for complaints of shoulder pain. In October 1980, the Veteran reported bilateral shoulder pain during pushups. An X-ray report reflects no bony abnormality, but it was noted that her left shoulder popped out of place, sublexed with adduction. She was diagnosed with mild tendonitis of the left shoulder. In November 1980, the Veteran indicated that she had left shoulder pain after buffing floors. She was diagnosed with tendonitis. She had additional complaints of left shoulder pain in February of 1981 that was diagnosed as bursitis. X-rays were noted to have been taken. In December 1985, the Veteran complained of right shoulder pain after raking leaves and she was diagnosed with bursitis. On two separate occasions the Veteran was diagnosed with bursitis; however, the examiner did not comment on whether her current disability could be related to those diagnoses of bursitis noted in service. Additionally, in the medical opinion rendered, the VA examiner noted that a rotator cuff condition is suspected of the right and left shoulder, and finds that the Veteran's shoulders are positive for Hawkins' Impingement Test as well as the Empty-can Test. Both test note that it could either "signify rotator cuff tendinopathy" or "supraspinatus tendinopathy." Given that the Veteran was service connected with tendonitis in service, the examiner should provide an explanation as to these findings and whether it is at least as likely as not related to the diagnosis of tendonitis in service. "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As additional information is required, remand is warranted for an adequate medical examination, one that allows the Board to make an informed decision of the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991))). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to ascertain the nature and etiology of the Veteran's claimed bilateral shoulder disability The examiner should be provided access to the Veteran's file, to include Virtual VA and VBMS records and should indicate review of such records in his or her report. Following all indicated studies and tests, the examiner should opine as to whether it is at least as likely as not as to: a) whether the Veteran's diagnoses of bursitis in service is related to her currently diagnosed bilateral shoulder disability. b) After explaining the significance of the Hawkins' Impingement Test as well as the Empty-can Test noted in the August 2015 VA Shoulder and Arm Conditions exam, which reflect positive results and "signify rotator cuff tendinopathy" or "supraspinatus tendinopathy," opine whether it is connected to the Veteran's diagnoses of tendonitis in service. It would be helpful if the reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The reviewer should explain the reasons behind any opinions provided. Citing to the service treatment records as well as citing all studies used to arrive at the conclusion. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. A CLEAR RATIONALE FOR ALL OPINIONS MUST BE PROVIDED AND A DISCUSSION OF THE FACTS AND MEDICAL PRINCIPLES INVOLVED WOULD BE OF CONSIDERABLE ASSISTANCE TO THE BOARD. 2. Then, readjudicate all claims on appeal. If the benefits sought remain denied, furnish the Veteran and his representative an SSOC and afford them the appropriate time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs