Citation Nr: 1740949 Decision Date: 09/20/17 Archive Date: 10/02/17 DOCKET NO. 08-33 958A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability with degenerative joint disease, status post herniated disc, L5-S1, with fusion and laminectomy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty in the Marine Corps from July 1968 to July 1972. He was awarded a Combat Action Ribbon for this period of service. The Veteran had additional service in the Marine Corps Reserve from July 1972 to January 1973, and in the Army National Guard from January 1973 to January 1976, which included a period of active duty for training (ACDUTRA) from May 25, 1975 to June 8, 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2010, the Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing held at his local RO. A transcript of the hearing is of record. In March 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2015, the Board denied the Veteran's claim for service-connection for a low back disability and dismissed his claim for entitlement to a total disability rating based on individual unemployability. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the parties submitted a Joint Motion for Partial Remand (JMPR) requesting that the Board's March 2015 decision denying service connection for a low back disability be vacated and remanded to the Board for additional development. The Court granted the motion the same month. In June 2014 and March 2017, in accordance with 38 C.F.R. § 20.901, the Board obtained medical expert opinions from the Veterans Health Administration (VHA). The Veteran and his representative were provided copies of the opinions and were afforded the opportunity to submit additional evidence and argument, which they did. FINDING OF FACT A low back disability, diagnosed as status post herniated disc, L5-S1, with fusion and laminectomy, first manifested many years after service and there is no competent and probative evidence of record which establishes that this disability is related to an event or injury in active service. CONCLUSION OF LAW The criteria for service connection for status post herniated disc, L5-S1, with fusion and laminectomy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this regard, the Board finds that VA has satisfied its duties to notify and assist the Veteran at every stage in this case such that no prejudice results to him in the adjudication of his appeal herein. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Russo v. Brown, 9 Vet. App. 46 (1996); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott, supra (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 duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2014); 38 C.F.R. § 3.6(a) (2014). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state. 38 U.S.C.A. § 101(21), (22) (West 2014); 38 C.F.R. § 3.6(c)(1) (2016). Certain chronic disabilities (including arthritis) are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations also provide that 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, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). While the Veteran served in combat, he does not assert that his low back disability is related to such. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the merits of the claim, the Veteran contends that his currently diagnosed back disorder (see March 2008 VA examination report) was caused when he fell about five feet from a truck bed onto a duffel bag containing hard objects that was lying on cement during ACDUTRA in the summer of 1975. The Veteran's STRs also reveal that he was treated for low back pain during service in February 1971. After reviewing all of the evidence of record including the Veteran's lay statements, the Board finds that the most probative evidence indicates that the Veteran's low back disability is not etiologically related to his service, to include his accepted 1975 fall from a truck bed. Initially, while the Veteran has reported that he has experienced continuous back pain since his 1975 fall, the Board finds that the evidence of record does not support this assertion. First, the evidence of record suggests the Veteran's back disorder onset in the early 1990s. In this regard, when the Veteran sought treatment for his back in May 1992 he reported a one year history of back pain; in May 2002 he reported his back pain onset in 1991; in November 2002 he reported his back symptoms dated back to 1992; and in September 2006 he reported a 15 year period of back pain. Additionally, in his May 2002 claim for service connection, the Veteran listed May 1991 as the date his disability began. While the Veteran's representative asserted in an August 2017 Informal Hearing Presentation (IHP) that the Veteran was being held to a "strict reporting requirement" regarding the onset of his disability and that the Veteran should not be expected to have accurate recall at a time so removed from the 1975 fall, the Board finds the Veteran's statements made to treatment providers more persuasive than statements made in pursuit of monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, it is counterintuitive to accept that the Veteran could not remember an onset of 1975 while receiving treatment in 1992, less than 20 years after his separation from service, but could remember an onset date of 1975 after his 2002 claim, more than 25 years after his separation from service. Here, the Board acknowledges that the record contains an April 2003 letter from the Veteran's private chiropractor in which he reports he first treated the Veteran in 1991 at which point the Veteran reported experiencing pain since 1972. However, as noted above, the contemporaneous records from 1992 only list a one year history of back pain. The Board affords the contemporaneous records greater probative weight given the proximity in time to the recordation and the fact that the statements were made for purposes of obtaining immediate medical care. Id. Second, the evidence of record suggests the Veteran was in good physical condition until 1991. In this regard, in statements made in conjunction with his claim for Social Security Administration (SSA) benefits, the Veteran indicated that he was very active in the years after his separation from service. Indeed, in a November 2000 letter he reported that prior to his first back surgery in the early 1990s, he was "very athletic." He went on to report such physical hobbies as golfing, bowling, skiing, and coaching softball. He also reported that his work as an electrician required him to perform hard manual labor. While the Veteran reported at the September 2010 Board hearing that his electrical work was largely in a supervisory capacity, he reported in a June 2006 statement to SSA that in performing his electrician's work he "carried all kinds of tools and ladders...spool[s] of wire, conduit, electrical pan[e]ls...off and on all day." He then noted that in his position he walked, stood, and climbed for eight hours a day and lifted objects as heavy as 100 pounds and 50 pound objects for a third to two thirds of his day. This statement is bolstered by a November 2000 SSA record in which the Veteran reported using drill motors, climbing ladders, carrying 100 pound spools of wire, and carrying ladders for 10 plus hours a day, five days a week. The ability to perform such strenuous physical activity is not consistent with the Veteran's reports of experiencing continuous back pain after his acknowledged 1975 fall. Given the foregoing, the Board finds the Veteran's assertions of a continuity of symptomatology from 1975 to the present lack credibility in light of his contradictory statements regarding the onset of his back disorder to medical treatment providers and his reports of physical fitness in the interval between his service and the early 1990s. See Buchanan, supra (the significant time delay between the affiants' observations and the date on which the statements were written and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). While there is no credible evidence of continuity of symptomatology, the Board has also considered whether the Veteran's diagnosed low back disorder is related to his service, to include his 1975 fall or February 1971 treatment, or whether the Veteran's low back arthritis manifested within one year of his separation from service. In this regard, the record contains March 2008 and May 2013 opinions from VA examiners that it was less likely than not that the Veteran's low back disorder was caused by his military service. The examiners' reasoning was essentially that the Veteran's back pain during service was transient and was not present at separation, and his fall off a truck in 1975 had little significance to his current back condition. The examiners also indicated that it was impossible to make a causal connection since it took the Veteran more than 15 years to report his complaints and to seek treatment. In June 2014, the Board requested an expert medical opinion from the VHA, as to whether it was at least as likely as not that the Veteran's current low back disability had onset during military service or was etiologically related to his reported back injury in service. In September 2014 a responsive opinion was provided by a Board Certified Orthopaedic Spine Surgeon, however, in the aforementioned April 2016 JMPR, the parties found the response was inadequate for appellate review as the examiner had not accepted the Veteran's reports of continuous pain following the 1975 fall and the examiner did not address an April 2003 opinion provided by the Dr. Suggs. In this regard, in an April 2003 letter, Dr. Suggs indicated that the Veteran initially sought treatment from him in 1991 with complaints of back pain dating to 1972. Dr. Suggs opined that there was a good probability that the Veteran's arthritis was a direct result from his fall off of a truck in service in 1972, since there were no other injuries thereafter. The Board finds the April 2003 opinion is inadequate for appellate review as it was based on several inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 460-61(1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Specifically, as noted above, the Board has found that the Veteran's reports of continuous pain from 1975 to the present lack credibility; as such, Dr. Suggs' reliance on continuous pain since service was misplaced. Additionally, the Veteran's in-service fall occurred in 1975, not 1972. Furthermore, the evidence of record suggests that while there may not have been an injury after 1975, the Veteran participated in significant physical activity as an electrician that Dr. Suggs did not discuss. The Board finds the opinion also lacks probative value as it was based solely on a report of history from the Veteran, and not objective contemporaneous medical evidence. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (when a medical opinion relies on a claimant's solitary testimony, VA is not bound to accept the medical conclusion rendered from his testimony as fact, as this opinion has no greater probative value than the facts alleged by the claimant); Elkins v. Brown, 5 Vet. App 474, 478 (1993) (a medical opinion based solely on a Veteran's recitation of his own history, rather than on specific references to the Veteran's medical and service records, is not probative); LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of a medical history does not transform the information into competent medical evidence merely because the transcriber is a medical professional); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Ultimately, as Dr. Suggs' opinion is based on inaccurate facts and solely on a report of history from the Veteran, the Board finds it lacks probative value. As the Board has found Dr. Suggs' opinion lacks probative value and the Veteran's reports regarding continuity of symptomatology lack credibility, the inadequacies in the September 2014 VHA opinion that were noted in the JMPR have been rendered moot. As such, a discussion of the September 2014 VHA opinion is relevant to the issue of whether the Veteran's low back disorder was caused by his in-service fall. The specialist opined that the Veteran's current lumbar spine pain and resulting lumbar surgeries were most likely not caused by his fall from a truck onto a duffel bag in 1975. The expert explained that degeneration of the lumbar discs is very common in the general population, and even more common among professional laborers like the Veteran. The expert indicated that it is difficult to make a causal association between the reported injury and the current disability when more likely associations have been documented, namely tobacco usage and the Veteran's occupation. The expert concluded by stating that it is more likely than not that the Veteran's disability is the consequence of the natural aging process- in combination with an occupation that required heavy lifting and a history of tobacco usage- than due to his fall onto a duffel bag in 1975 which resulted in no documented treatment, imaging, or medical disability. In a February 2015 IHP, the Veteran's representative argued that the September 2014 VHA examiner did not address the 1975 injury or possible damage caused thereby; did not support his finding that the Veteran performed strenuous work after service; and finally the representative argued the examiner was prejudiced against the Veteran given the fact the examiner was a VA employee. The Board, however, notes that the VHA examiner specifically addressed the 1975 injury as reported by the Veteran and determined that the natural aging process was more likely the cause of the current back disability, as opposed to the acute 1975 injury. In addition, the expert's findings regarding the Veteran's post-service "strenuous activities" are well-documented in the SSA records. Finally, there is no requirement that the Board obtain a medical nexus opinion from a non-VA source. Rather, 38 C.F.R. § 20.901 provides that the Board may obtain a medical opinion from an appropriate health care professional in the VHA on medical questions involved in the consideration of an appeal, when, in its judgment, such medical expertise is needed for equitable disposition of an appeal. 38 C.F.R. § 20.901 (2016). In a similar fashion, 38 U.S.C.A. § 7109 also does not mandate that the Board obtain a medical opinion from a source outside the Department. Rather, it indicates that the Board may seek such an independent opinion, when, "in the judgment of the Board" such is warranted. 38 U.S.C.A. § 7109 2014 (emphasis added). More importantly, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In the instant case, there is no indication of any personal animosity on the part of the September 2014 VHA expert. Thus, the Board finds the September 2014 VHA examiner considered accurate facts, including lay reports, and there is no persuasive evidence that he did not discharge his duties properly. While the Board finds the September 2014 opinion probative as to the issue at hand, in an effort to afford every consideration to the Veteran, the Board sought a second VHA opinion in March 2017. In this request, the Board detailed the Veteran's relevant history and posed the following questions: (1) Is it at least as likely as not (50 percent or greater probability) that based on Dr. Suggs' April 2003 notation that the Veteran had pronounced arthritis at the time of x-rays taken in 1991, that the Veteran had arthritis within a year of his discharge from service in July 1972? In this regard, please note the Veteran's February 1971 in-service treatment for complaints of back pain. (2) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability had its onset during military service or is etiologically related to his February 1971 treatment for back pain or his reported fall from a truck bed onto a duffle bag that was on cement in 1975? In rendering your opinion, accept the Veteran's report of his back injury in 1975. You may also accept the Veteran's competent lay reports of continuity of lower back pain since the 1975 injury. (3) Please include a discussion as to whether the described in-service injury of falling from a truck onto a duffle bag filled with hard items and lying on cement is consistent with the onset, nature, and progression of the Veteran's current back disability. The specialist is further asked to discuss the significance, if any, of the Veteran's self-described ability to perform heavy manual labor as reported in his initial SSA application, and his May 1992, July 2002, and September 2006 reports of an onset of back pain in or after 1991. (4) Finally, please discuss any contrary medical opinions of record to include, as necessary, the 2008 and 2013 VA examination reports, the September 2014 VHA opinion, and Dr. Suggs' April 2003 opinion. In March 2017, a VA neurosurgeon and professor of surgery noted a detailed review of the pertinent evidence and opined that it was less likely than not that the Veteran's low back disorder was related to his military service. Initially, the examiner noted there was not adequate medical evidence to conclude that it was as likely as not that the Veteran had arthritis within a year of separation from service. Next, while the examiner acknowledged the Veteran's 1975 in-service fall from a truck, he found it less likely than not that the Veteran's disability was related to such as an injury of that type was not consistent with the Veteran's course of treatment thereafter. In this regard, the expert noted the Veteran's ability to perform strenuous work as an electrician after the in-service injury and his own report in the May 2002 claim for service-connection that his back disability onset in 1991. Finally, the examiner noted, as has the Board, that Dr. Suggs' opinion is based on the Veteran's lay reports of medical history and is inaccurate as to the date of onset. Further, the neurosurgeon observed that one cannot conclude based on x-rays taken 28 years after an injury, that said injury caused arthritis. The record and the expert opinion were reviewed by two other physicians, an Acting Chief of Surgical Care Line and the Chief of Staff of Southern Arizona VA Health Care System, both of whom concurred with the opinion rendered. The above September 2014 and March 2017 expert opinions are not directly contradicted by any other competent evidence, and the Board finds the comprehensive opinions, which clearly reflect detailed consideration of the entire record, to be definitive as to the matter of whether the Veteran has a low back disorder that is the result of service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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 addition, given the March 2017 examiner's opinion that it was less likely than not that arthritis manifested within one year of service and as the Board has found the Veteran's reports of continuity of symptomatology lack credibility, presumptive service connection on the basis of chronic disease is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. While the Veteran contends that his low back disorder is related to service, the diagnosis of arthritis and herniated discs, and the etiology of such require medical testing and expertise to determine. Thus, as a lay person, the Veteran's opinion on the onset and etiology of his low back disorder is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the back pain the Veteran experienced in service or following service are in any way related to his currently diagnosed disability is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The Board finds the medical opinions rendered by the VA experts to be significantly more probative than the Veteran's lay assertions. Additionally, as fully discussed above, the Board finds that his statements regarding continuity of symptomatology are not credible. Here, the Board observes that in the vacated March 2015 decision, the March 2012 remand, and the VHA opinion requests, the Board attempted to verify the Veteran's reports of continuity of symptomatology or to at least avoid calling the Veteran's credibility into question. However, the April 2016 JMPR is reflective of the fact that the Board must make a finding that based on the preponderance of the evidence of record, continuity of symptomatology did not exist. In light of the above and in conclusion, the Board finds that service connection for a low back disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the probative evidence is against the Veteran's claim. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for status post herniated disc, L5-S1, with fusion and laminectomy is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs