Citation Nr: 1741035 Decision Date: 09/20/17 Archive Date: 10/02/17 DOCKET NO. 10-46 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease (DDD), to include as secondary to service-connected left and right foot plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran, D.L. and C.S. ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1972 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2013, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's electronic claims folder. In September 2016, the Board remanded the matter for additional development, to include obtaining a medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's DDD is not related to his military service, was not manifested within the one year following separation from service and is not due to or aggravated by a service-connected disability. CONCLUSION OF LAW The Veteran's DDD was not incurred in or aggravated by active military service, is not secondary to a service-connected disability and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a July 2005 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2016). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. In regard to the duty to assist, the Veteran was afforded several VA examinations. Ultimately, an April 2017 independent medical opinion was obtained. The clinician reviewed the Veteran's claims folder, considered his lay statements and provided an opinion supported by rationale. Therefore, the Board finds that the April 2017 medical opinion is adequate for adjudication purposes. In a May 2014 correspondence, the Veteran requested a new examination because he believed the April 2014 VA examiner did not properly consider his evidence and rushed his examination. In a May 2017 correspondence, the Veteran questioned the partiality or competence of the VA examiner. In that regard, the Veteran stated that the examiner told him at the examination that "she didn't have time for all of this, show me your evidence." He also stated that the examiner "cared nothing about any findings," and "had no intention on looking or caring about evidence." The Board has considered the Veteran's statements, but finds that there is adequate evidence to adjudicate the claim. Although the Veteran raises questions about the adequacy of the April 2014 VA examination, the Board notes that an independent medical opinion was obtained in April 2017. This clinician provided an opinion based on a total review of the claims folder, including noting the Veteran's lay statements. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Service Connection The Veteran contends that he is entitled to service connection for DDD of the back and/or neck because he injured his back during service after jumping off of a 2 ton truck with a full field pack on his back. He contends that he has experienced back pain since the incident and post-service. In order to obtain service connection under 38 U.S.C.A. §§ 1110, 1131 (West 2015) and 38 C.F.R. § 3.303 (a) (2016) a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that when aggravation of a non-service-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). Also, in the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Arthritis/DDD is listed as a chronic disease. 38 U.S.C.A. § 1112 (a)(1) (West 2015). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b) and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Moreover, the defect, infirmity, or disorder must be detected and noted at entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement or opinions. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Having carefully reviewed the record, the Board finds that the presumption of soundness applies. In that regard, the Board acknowledges that on the Veteran's February 1972 entrance Report of Medical History, he indicated that he had experienced symptoms of recurrent back pain. Further elaboration indicated that the Veteran had been first treated by a chiropractor for a slipped disc when he was 20 years old and continued treatment for 2 to 3 years. However, entrance clinical examination revealed normal results and DDD or any back or neck disabilities were not included in the summary of diagnoses and defects. The Veteran was noted to be qualified for induction. Because the claimed back pain was recorded by way of history only, and the clinical examination was normal, the Board concludes that DDD, to include back and neck disabilities, were not "noted" at the time of entrance examination, and that the presumption of soundness applies. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran's disability was both preexisting and (2) it was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. As will be explained below, the Board finds that the presumption of soundness has not been rebutted by clear and unmistakable evidence that the DDD preexisted service and was not aggravated by service. However, the Board also finds that the preponderance of evidence is against a finding for direct service connection, secondary service connection or service connection on a presumptive basis. First, there is evidence of a current disability - namely degenerative disc disease (DDD). There is also evidence of an in-service incurrence. The Veteran stated that he injured his back/neck during service after jumping from a 2 ton truck. Service treatment records are silent for any neck or back injuries. The Veteran testified that he did not go on sick call for the injury because he sought private treatment. The Board will give the Veteran the benefit of the doubt and proceed with full consideration of his claim. Accordingly, the Board accepts the Veteran's account of in-service injury. Having found that the Veteran has a current disability and suffered an in-service injury, the question turns to whether the two are related. There are several medical opinions of record. However, not all of them are adequate and probative in nature for adjudication purposes. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also 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 Board will address any potentially favorable evidence and explain why it did not assign probative weight to such evidence and also address the evidence against the claim and why it assigned it probative value. A June 2005 correspondence from Dr. J. Reavis indicates that he treated the Veteran for neck and lower back pain from 1972 until he retired in 2000. He stated that he was unable to furnish documentation since his records had been destroyed. A July 2006 correspondence from Dr. J.R. indicates that he treated the Veteran for complaints of lower back pain and muscle spasm while the Veteran was home on weekend leave, through basic training and advanced infantry training. He states that, according to the Veteran, this took place in 1972. In an August 2006 correspondence, Dr. J.R. states that he has "no positive record of the dates that treatment was given to the Veteran." All he could remember was that he saw the Veteran several times over 2 to 3 years, after he was discharged from service. The Board assigns minimal probative to Dr. J.R.'s statement. In that regard, the Board acknowledges that although there is no supporting medical documentation of the Veteran's treatment with Dr. J.R., the Board credits his statement that he treated the Veteran for back problems. However, Board does not credit the statement regarding the period or length of time he treated the Veteran. In that regard, there is evidence that the Veteran had back problems prior to his 2 years of active service. Dr. J.R. was allegedly the chiropractor from which he sought treatment pre-service. The Veteran testified that he comes from a small town and therefore Dr. J.R. would remember treating him and even his father. See Board Hearing Transcript, pp. 8-9. However, what is telling is that Dr. J.R. admits he does not remember the dates in which he treated the Veteran and relied on the Veteran to provide the time period. Further, the Board questions the veracity of Dr. J.R.'s opinion. He first stated that he treated the Veteran from 1972 until his retirement in 2000. But, later states he treated the Veteran several times over 2 to 3 years. What is more is that Dr. J.R. does not have access to his treatment records of the Veteran but never does he state that he treated the Veteran for his now diagnosed DDD. The Board finds that the Veteran's treatment with Dr. J.R. does not establish that his DDD is at least as likely as not related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)( a significant lapse in time between service and the post-service documentation of a disability). Next, in an undated correspondence, received in June 2009, K. Phillips, a certified physician's assistant, stated that she has treated the Veteran for many years (starting in late 1990s) and was "very familiar and well versed with his past and present medical conditions." She noted that the Veteran has had continued discomfort in his neck and back and had undergone lumbar surgery in effort to alleviate the pain. She opined that it was at least as likely as not that the Veteran's current neck and back condition had its onset during service. "Based on knowing the progress of [the Veteran's] spinal condition, his current severity of symptoms and the time it would take for these degenerative changes to have occurred, it is my opinion that this veteran's spinal condition stems from the traumatic injury sustained while in the service as he has described in his history when jumping off the truck during basic training." The Board does not assign probative value to K.P.'s opinion. In that regard, she began treating him in the late 1990s, which is greater than 20 years post-service. She states that she is "very familiar and well versed" with the Veteran's medical history; however, she does not cite to any specific findings/medical authority which support a positive nexus between the Veteran's in-service injury and current DDD. Next, in a March 2011 correspondence, Dr. C. Dyer, of the Winston-Salem VA Outpatient Clinic wrote that the Veteran had been his patient since 2003. He noted that the Veteran had been treated for his service-connected podiatry related disabilities and also noted the Veteran's MRI documentation showing a diagnosis of severe cervical and lumbar spine disc disease. He opined that it was at least as likely as not that the Veteran's cervical and lumbar disc disabilities had their origin in the same incident in which he sustained his foot condition. He further opined that it was at least as likely as not that the Veteran's foot disabilities "permanently aggravated his neck and back pain, secondary to degenerative disc disease beyond their natural progression." The Board has not assigned any probative value to Dr. C.D.'s opinion. In that regard, although Dr. C.D. has treated the Veteran for quite some time, he did not indicate that he had reviewed the Veteran's claims folder which contains pertinent information relevant to the claim. He also did not provide any rationale for his conclusions. He merely stated the disabilities for which the Veteran was service-connected; listed any current diagnosed back or neck disabilities and concluded that the back and neck disabilities were related to service and/or the service-connected disabilities. Conclusory statements are not helpful to the Board's analysis and therefore the Board has not assigned any probative value to the opinion. Next, the Veteran was afforded a VA examination in May 2011 where the examiner opined that the Veteran had normal feet and therefore it was less than likely that his service-connected foot disability caused his DDD and degenerative joint disease. The examiner did not address secondary service connection on the basis of aggravation or service connection on a direct basis. Therefore, in February 2014, the Board remanded the matter for an addendum opinion which addressed all applicable theories of service connection. The Veteran was afforded another VA examination in April 2014 where the examiner did not review the Veteran's entire claims folder before rendering an opinion. Therefore, the Veteran was afforded a third examination. In March 2015, an examiner provided an addendum opinion which stated that the Veteran's DDD didn't manifest within 1 year of service and there was no mention of back or neck pain for many years post-service. He further stated that the Veteran filed claims in 1975 and 1999 for his feet disabilities and did not mention his back or neck until 2005 (the clinician inaccurately stated 1995). He also opined that plantar fasciitis would neither cause nor aggravate the neck or spine to such a degree as to cause DDD since DDD is due to compressive forces over time. He concluded that the Veteran's current conditions were more likely than not the result of natural progression and events subsequent and prior to the Veteran's 2 years of service. The March 2015 examiner did not review the entire claims folder and did not acknowledge the Veteran's reports of post-service treatment. Due to discrepancies in the March 2015 opinion, the Board remanded the matter for a medical opinion which properly addressed the theories of entitlement. Specifically, the Board requested opinions regarding whether the Veteran had a preexisting disability which was aggravated by service; whether the DDD was directly related to service or secondarily related to a service-connected disability (by causation or aggravation). An addendum medical report in October 2016 proved inadequate so the AOJ ordered an independent medical opinion. In an April 2017 independent medical opinion, the clinician noted that she had reviewed the Veteran's electronic claims folder and considered the Veteran's lay statements in the formulation of her opinion. She opined that there was not clear and unmistakable evidence that the Veteran's DDD of the back or neck preexisted service. The clinician explained that it was at least as likely as not that the prior spinal condition, to include a slipped disc, was an acute self-transient and limited event that resolved with chiropractic treatment. "[T]here was NO objective orthopedically-based, clinical evidence to support continuity and chronicity of degenerative disc disease, acute, sub-acute and/or chronic cervical, thoracic and/or lumbosacral inflammation of the intervertebral disc moieties. The clinician further opined that it was less likely than not that the Veteran's DDD of the back or neck began in or is related to service. The clinician explained that there were no complaints, diagnosis, treatment, injury and/or events, including after jumping off a 2 ton truck with a full field pack on his back, related to DDD during service or within 1 year of service. Further, the clinician opined that it was less likely than not that the Veteran's DDD of the back or beck was caused or aggravated by his service service-connected foot disabilities. The clinician explained that, "[c]urrent podiatric and orthopaedic literature agrees that plantar fasciitis is localized inflammation at the periosteal insertion of the medial band of the plantar fascia to the medial process of the calcaneal tuberosity . . . current literature lacks sufficient objective, podiatric and/or orthopedically-based, bio-mechanical evidence to support a nexus between [plantar fasciitis and DDD]." The Board finds the April 2017 independent medical opinion to be probative in nature. In determining whether such expert evidence is adequate, the report must be read as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (holding that an examination is not necessarily inadequate where "the rationale provided by the examiner [does] not explicitly lay out the examiner's journey from the facts to the conclusion, so long as that rationale can be discerned from a review of the report as a whole"). The clinician reviewed the claims folder and noted the Veteran's lay statements before providing an opinion which addressed all theories of entitlement with supporting rationale. The clinician found that the Veteran's DDD was not directly or secondarily related to service or a service-connected disability. The Board has considered lay statements from the Veteran, C.H., and D.L. In a July 2006 correspondence, C.H. stated that he has known the Veteran all of his life and knows that the Veteran hurt his back during service. He also stated that he knows that the Veteran saw a chiropractor, Dr. J.R. after service. In a March 2011 correspondence, D.L. stated that she has known the Veteran since the 1970s and could attest to the fact that he complained of back pain. The Board finds that the lay statements offer minimal probative value. Although C.H. and D.L. are competent to report any symptoms of pain they personally observed or witnessed the Veteran suffer, neither C.H. and D.L. are competent to provide a nexus opinion regarding the etiology of DDD, which was discovered through extensive medical testing. The Board has also considered the Veteran's statements regarding his condition. A Veteran is competent to report symptoms which are observable through his five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the Veteran's statements not credible regarding continuity of symptoms. In that regard, the Veteran claims that he has consistently had problems with his back since service. However, he was discharged from service in 1974 and didn't complain about his back or neck at the separation examination. The Board notes that he testified at the hearing that he did not say anything because he just wanted to be discharged quickly. See Board Hearing Transcript, p. 16. However, he filed a claim for his currently service-connected foot disabilities in 1975. He filed an increased rating for these disabilities in 2004. He did not file any claims for his neck and back until January 2005 - over 30 years post-service. It is reasonable to infer that if the Veteran indeed had been suffering from consistent back problems since service, that he would file a claim for such a disability, especially since he demonstrated that he knew how to file an initial service connection claim and even an increased rating claim. The earliest medical documentation of the Veteran's back or neck problems is 1999 - still 20 years post service. Finally, there is evidence that the Veteran was diagnosed with arthritis following service. Arthritis is a chronic disease subject to presumptive service connection. However, he was not diagnosed with arthritis within 1 year following service, in order to allow him presumptive service connection under 38 U.S.C.A. 1112 (a)(1) and 38 C.F.R. 3.309. Given that the Board has found the unfavorable April 2017 VA medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran's claims for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107 (West 2015). ORDER Entitlement to service connection for DDD, to include as secondary to service-connected left and right foot plantar fasciitis, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs