Citation Nr: 1741920 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 13-19 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for lumbar spine disability, to include degenerative disc disease, lumbar spondylosis of L5-S1, lumbar disc herniation, and post lumbar spinal fusion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and Veteran's Spouse ATTORNEY FOR THE BOARD S. Schlack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1984 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2011, the Veteran submitted a timely notice of disagreement. In May 2013, the RO issued a statement of the case, and the Veteran submitted a timely appeal. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran is shown to have a current lumbar spine disability, which has been diagnosed as degenerative disc disease, lumbar spondylosis of L5-S1, lumbar disc herniation, and post lumbar spinal fusion. 2. The current lumbar spine disability was not manifested in service or in the first post-service year and is not shown to be otherwise related to his military service or injuries therein. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. § 1110 , 1131, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 2010 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, VA examination reports, and Social Security records. The Veteran was provided a hearing before the undersigned VLJ in April 2017. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service Connection for Lumbar Spine Disability The Veteran served as a U.S. Army mechanic. The Veteran contends that he sustained several back injuries during service that have since developed into his current lumbar spine disability. Service connection may be granted for a disability resulting from disease or injury incurred in active service or for aggravation of preexisting injury or disease in active service. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303 (d). 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Further, the Board has considered if the chronic diseases presumption could be applied to this case. Some chronic diseases, to include arthritis or degenerative changes of the spine, may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2016). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records (STRs) indicate that the Veteran was in good health with no known back issues during his October 1983 enlistment examination. Records dated July 1984 indicate an increased curve in low back with a recommendation for waiver to keep the back straight and level. Records dated January 1985 document a left leg injury due to a trailer slipping back and pinning the Veteran between the trailer and a truck. Records dated in February 1985 indicate treatment for spasm in the left leg, again, indicating due to the above-mentioned crush injury. Records dated July 1985 indicate treatment for an injured left wrist, pain in neck and right shoulder, and headache after falling off a truck. Records dated November 1985 indicate treatment for a left knee injury after the Veteran reported a slip and fall on the way home. Records dated December 1986 indicate treatment for left side of back after a fall accident. A December 1989 Medical Board Report addressed the Veteran's history of chest pain. It was noted that physical examination was entirely within normal limits. No complaints or diagnosis regarding the back was noted. The Veteran does not have VA treatment records but has private treatment records for his lumbar spine disability. Private treatment records received in July 2010 indicate that the Veteran sought treatment for back pain radiating to the left leg and knee in September 2008. The Veteran was diagnosed with lumbar and sacroiliitis strain and treated with pain medication and physical therapy. A MRI report of the spine in October 2008 indicates no evidence of any spinal canal or neural foramina stenosis with normal examination of the lumbosacral spine. Treatment records in June 2010 report a history of severe low back and left leg pain. An MRI report states "mild disk degeneration L5-SI, minimal posterior disk bulge/broad-based disk protrusion with annular tear. Otherwise unremarkable exam." In July 2010, the Veteran reported for a follow-up appointment reporting that "things are better now but not completely resolved" and was diagnosed with chronic back pain. In private treatment records received in May 2011, records dated August 2010 indicate the Veteran's chief complaints were lumbosacral back pain and radicular left leg pain, paresthesia, and weakness. It is reported that symptoms began two months ago and have been progressive in character since onset. The Veteran sought Social Security disability benefits for degenerative disc disease and back injury reporting an alleged onset in June 2010. The Social Security Administration found that the Veteran's back disability limits his ability to work but does not prohibit all work. Records indicate that the Veteran underwent a spinal fusion at the fifth lumbar and first sacral vertebral bodies in January 2011. In June 2011, the Veteran was afforded a VA examination. The examiner noted that the claims file was reviewed and an in-person examination was conducted. The report notes multiple fall incidences and contusion of the left thigh while in service and the Veteran's reported symptoms and functional limitations. The examination revealed a normal lordotic curvature, slight kyphosis, slight scoliosis with convexity to the left, and a well-healed surgical scar. No weakness was present for muscle spasm, but tenderness at L4-L5 was reported. The examiner performed range of motion testing, including repetitive motion, and noted increased pain. The examiner opined that it is less likely than not that the Veteran's current back problems are related to service and more likely than not related to normal age progression. In April 2017, the Veteran testified before the undersigned VLJ. The Veteran testified that he did not receive treatment for his back prior to service. The Veteran testified that while in service he suffered a crush injury, reporting that a trailer hit him on the left side of the back and hip and pinned his leg. The Veteran stated that he received treatment, including x-rays, and that no breaks were reported but there was muscle and ligament damage. The Veteran also testified that he fell backward against a cement corner and fell on wet leaves while going home, both of which he received medical care for, while in service. As for medical evidence, the Veteran testified that he received private treatment for his back, which included physical therapy and Motrin, in 1987 through 1990. The Veteran stated that he attempted to obtain those records but was informed by the provider that they had been destroyed. The Veteran testified that his doctor has attributed his back issues to the in-service trailer accident, but that no doctor will give a written opinion to that effect due to fear of litigation. Further, the Veteran and his spouse, asserted that the VA examination was very short and that they did not have a chance to discuss or show the examiner any of their records. The Board acknowledges that the Veteran contested the lumbar fusion diagnosis used in the August 2011 rating decision, disagrees with the reference to no VA treatment records, and argues that the June 2011 VA examination was inadequate. The Veteran's representative has submitted that the Veteran has a current diagnosis, that STRs show an in-service incurrence, but that there is no medical opinion of a nexus connecting the two. The evidence clearly shows that the Veteran has a current lumbar spine disability as he has carried a variety of diagnoses for the lumbar spine, including degenerative disc disease, lumbar spondylosis of L5-S1, lumbar disc herniation, and post lumbar spinal fusion. Therefore, the first Hickson element, current disability, is satisfied. With respect to the second Hickson element, in-service occurrence, the Veteran's STRs indicate that the Veteran was treated on multiple occasions for falls and received treatment for a trailer accident. It is notable that no back complaints or back pain were specifically reported during these incidences, particularly in regards to the treatment for the trailer accident, which the Veteran largely attributes to causing his current lumbar spine disability. In addition, at the time of the December 1989 Medical Board, no complaints or diagnosis regarding the back was noted. However, affording the Veteran the benefit of the doubt, the Board finds that it is reasonable that the Veteran could have injured his back in these incidences. Therefore, the second Hickson element, an in-service occurrence, is satisfied. Concerning the third Hickson element, evidence of a nexus between the Veteran's currently diagnosed lumbar spine disability and his in-service accidents, the Board has carefully considered the VA examination report; the Veteran's private treatment records, including Social Security records; and the Veteran's and Veteran's spouse's lay statements. The Veteran testified that in 1985 he was hit on the left side of his back and hip with a trailer, which then pinned his leg. The Veteran's service treatment records indeed indicate that there was an accident involving a trailer that resulted in a crush injury to the Veteran's left leg. However, the Veteran only received treatment for the left leg injury, not the back. Additionally, in private treatment records, the Veteran's treating doctor indicated that Veteran's chief complaint of lumbosacral back pain and radicular left leg pain, paresthesia, and weakness began two months ago in records dated August 2010. Further, Social Security records indicate that the Veteran reported an alleged onset date of June 2010 for his claim of disability based on degenerative disc disease and back injury. The Veteran asserts that he received private treatment in the form of physical therapy and medication for his back from 1987 through 1990; however, the Veteran asserts that they have been destroyed. The Veteran's treating doctor has provided the Veteran with written opinions regarding the severity of the Veteran's lumbar spine disability for the Veteran's Social Security disability claim; however, no such written opinion attributing the Veteran's disability to military service has been provided or documented in treatment notes. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's lumbar spine disability, falls outside the realm of common knowledge of a lay person. Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Therefore, the Board finds that the Veteran's statements regarding the causation of his lumbar spine disability are not competent evidence as they were not provided by someone with specialized knowledge or experience. The only competent and probative medical opinion of record addressing a relationship between the Veteran's current lumbar spine disability and his military service is found in the June 2011 VA examination report. The examiner reviewed the record, including the available medical records, performed an examination to include range of motion testing, and considered the Veteran's lay statements regarding injuries in service. The examiner concluded that it "it is less likely than not that the [V]eteran's current back problems are related to the military." As the June 2011 opinion includes a rationale that reflects familiarity with the Veteran's history and indicated review of the available records and lay statements, it is probative evidence in this matter. Absent any other medical opinions to the contrary, it is also persuasive. Therefore, the Board finds that the weight of the evidence does not demonstrate a nexus between the claimed in-service injury and the current disability. Thus, the Board must find that the third Hickson element of service connection, a nexus, has not been satisfied and service connection is not warranted. The Board has considered if the chronic diseases presumption could be applied to this case. The record does not indicate that the Veteran's lumber spine disability manifested within a year of the date of separation from service nor does the record support a continuity of symptomatology because there are no records for back treatment from 1991 to 2007. Further, private treatment records and Social Security records indicate an onset around June 2010. The Board finds that the weight of the evidence, lay and medical, does not demonstrate that the claimed lumbar spine disability is related to the Veteran's service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for lumbar spine disability, to include back strain, degenerative disc disease, lumbar spondylosis of L5-S1, lumbar disc herniation, and post lumbar spinal fusion, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs