Citation Nr: 1744149 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 04-40 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to March 1956. This appeal is before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which, in pertinent part, denied service connection for a low back disorder. In June 2007, August 2009, March 2010, and December 2016, the Board remanded the issue for further evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In this case, the AOJ substantially complied with the Board's December 2016 remand instructions by obtaining updated VA treatment records; sending the Veteran a December 2016 letter requesting that he identify all VA and private health care providers and providing VA Forms 21-4142 and 21-4142a; providing a January 2017 VA examination; and readjudicating the issue in an April 2017 Supplemental Statement of the Case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's low back disorder did not manifest during service, arthritis did not manifest within one year from separation from service, and is not related to service. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matter In this case, 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). The Board notes that the Veteran's service treatment records (STRs) are incomplete as they were destroyed in a fire. Therefore, VA has a heightened duty to consider the application benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (indicating the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-doubt rule when a claimant's records have been lost or are otherwise unavailable). The relevant available STRs are discussed below. Regardless, the Veteran contends that his low back disorder is due to an in-service fall that occurred in Korea, for which he did not seek medical treatment as it occurred during combat. As such, there would be no documentation of any such low back injury in the STRs. II. Service Connection Claim for a Low Back Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 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). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent here, arthritis (degenerative joint disease) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and a certain chronic disease, such as arthritis, becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As stated above, the Veteran's STRs are incomplete. However, an August 1953 reenlistment examination report reflects a normal clinical evaluation for the spine; the Veteran's denials of swollen or painful joints and bone, joint, or other deformity; and his report of arthritis or rheumatism. In November 1955, he complained of a fever and back pain for four days and was hospitalized, and an examination revealed tenderness of the back muscles. He was discharged in December 1955 after 41 days, with diagnoses of fever of undetermined origin, trichuriasis, and ancylostomiasis, but no diagnosis involving the low back. A March 1956 separation examination revealed normal clinical evaluation of the spine, with a note that the Veteran was treated for polyarthralgia involving the knees and elbows, but involvement of the back was not noted. A post-service June 1967 VA radiographic report reflects an arthritic survey including the lumbar spine, which showed no significant abnormality. The Veteran reported rheumatoid arthritis since he was in service in Korea in 1951 with several attacks since, but an examination was negative for all joints, except the right ankle. A September 1969 VA gastrointestinal examination report refers to September 1966 x-rays of the lumbosacral spine showing minimal degenerative arthritic changes and narrowing of the disc at L5-6. However, the examiner crossed out a diagnosis involving the lumbar spine and revised it as minimal degenerative arthritis of the cervical spine. In fact, an August 1969 arthritic survey showed mild degenerative changes of the cervical spine, but a grossly normal distal lumbar spine; he was diagnosed with mild degenerative arthritis of the cervical spine, and had no diagnosis involving the lumbar spine. The Veteran first sought VA treatment for low back pain in December 1971. A July 1972 arthritic survey was negative, except for changes in the dorsal spine and cervical spine. An April 1974 VA arthritic survey revealed lumbar spine lateral projections showing evidence of moderate degenerative changes with anterior spur formations; a large spur formation was noted at the lower lumbar vertebral area. A June 1974 treatment record reflects a diagnosis of DJD of the lumbar spine and discogenic disease. An August 1975 private treatment record reflects that the Veteran reported intermittent and progressive pain in the entire back since service in 1956, which involved all his joints and seemed to be of a migratory nature. The impression included history of spondylosis of the lumbar spine without evidence of radiculopathy. A February 1977 VA treatment record reflects that the Veteran complained of back pain and reported a history of pain from the cervical to the lumbar area and multiple joint pains on and off since 1951. X-rays revealed spondylosis of the lumbar spine. An August 1977 VA examination reflects the Veteran's complaints of generalized joint pains for the past four years, including pain over the low back. X-rays of the lumbosacral spine revealed minimal degenerative changes manifested by small spurs. He was diagnosed with osteoarthritis. A May 1989 letter from the Designee of the Chief of the Medical Administration Services stated that the Veteran was treated at VA since 1975 for several conditions, including low back pain, generalized DJD, arthritis, and lumbar spondylosis. A May 1993 VA systemic conditions examination report reflects the Veteran's report of back pain that began presenting in the past year, particularly with bending down or sideways. An MRI from earlier that year showed stenosis of the spinal canal. The diagnoses were history of rheumatoid arthritis, inactive at present; and DJD. A May 1993 VA joints examination report reflects the Veteran's complaints of longstanding, progressively worsening, generalized joint pain, to include in the back. The diagnoses were osteoarthritis and spondylosis of the spine; and DJD, generalized. It was noted that laboratories and x-rays were requested to rule out the possibility of rheumatoid arthritis. A January 1997 addendum to the May 1993 VA examination reflects that the March 1993 joints and systemic condition examination reports were reviewed. An orthopedic examiner stated that the reported findings were typical of DJD and not the result or residuals of rheumatoid arthritis. An internal medicine examiner similarly reported that there was no evidence of active rheumatoid arthritis, that the clinical findings were typical of DJD, and that the arthritic survey and total body scan revealed DJD and degenerative disc disease (DDD). An August 2003 VA examination report reflects the Veteran's complaints of constant moderate low back pain, and notes a diagnosis of rheumatoid arthritis of the lower back. However, the VA examiner opined that the Veteran's current diagnosis of rheumatoid arthritis was not supported by clinical history, physical examinations, laboratory tests, or multiple arthritic bone x-rays, which were negative for a pathology through the years. He stated that the Veteran's actual findings on examination, both objective and subjective, and findings on the CT scan and bone survey x-rays were due to the natural process of aging. In May 2004, the Veteran stated that in May or June of 1951, the enemy launched an offense, and he was required to retreat. He stated that the terrain was very irregular, and he fell down a slope, suffering blows to his back. Unfortunately, there was no medical assistance available as the enemy was attacking. In September 2005, the Veteran's private treating orthopedist Dr. A.D. submitted a letter stating that the Veteran was being treated for low back pain. He opined that the Veteran's back condition "could be related to an old trauma suffered on his youth worsened by the age and time." He stated that there was "a clear relation between discogenic illness and trauma" and that the Veteran referred to "symptoms on his back since the accident although [it had gotten] worse gradually as is natural when the patient gets older and other changes overlap on the spine." A November 2008 VA examination report reflects review of the claims file and low back pain since 1951. The Veteran reported that he was in Korea when he fell down a slope in 1953, incurred back trauma, and developed back pain. He stated that he was unable to receive medical evaluation as he was in combat. He stated that some time later, he was hospitalized in Hawaii for 45 days due to a back condition. He also reported severe low back pain during the last years with radiation to the bilateral leg and left great toe numbness. The diagnoses were multilevel bulging disc by magnetic resonance imaging (MRI), degenerative changes in the lumbar spine, and lumbar radiculopathy secondary to the multilevel bulging discs. The VA examiner stated that she could not provide an opinion as to etiology without resorting to mere speculation. She noted that there was no objective evidence in the STRs regarding the Veteran falling down a slope while traveling on rough terrain during combat service, and that the Veteran referred multiple joint pain 13 years after separation from service without mentioning the claimed in-service fall. The Veteran first noted an in-service fall in 1966 at the time of his claim. However, the VA examiner stated that the Veteran's present degenerative changes were most likely age-related. A November 2009 VA examiner noted the Veteran's lumbar DJD and multilevel herniated disc disease of the lumbosacral spine. After reviewing the claims file, he opined that the Veteran's actual clinical lumbar conditions were less likely than not related to service due to the lack of evidence showing a back injury affecting the Veteran during service, specifically of a fall and resulting lumbar injury in 1951, or within a year after separation. He also noted that the Veteran's lumbar problems presented more than 10 years after service, which made it difficult to relate to the period of service. His impression was that the lumbar disorders were age-related. A January 2017 VA examination report reflects review of the Veteran's claims file and a diagnosis of degenerative arthritis of the spine, which was documented by x-ray evidence. The Veteran's son reported that the Veteran had constant pain in the lower back, which radiated to the right posterior leg to the calf. He stated that the Veteran served in Korea and frequently had to jump into trenches, which was how he injured his lower back; and brought documentation that the Veteran had been treated for his back condition since 1975, which was 19 years after separation from service. The VA examiner noted the prior November 2008 and November 2009 VA opinions, and opined that the Veteran's degenerative arthritis of the spine was less likely than not incurred in or caused by service based on the fact that the Veteran began receiving treatment for his lower back pain since 1975, 19 years after separation from service. After review of all of the evidence of record, lay and medical, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder. As an initial matter, the Board finds that the Veteran meets the first element of service connection, as he is diagnosed with multilevel bulging disc/multilevel herniated disc disease of the lumbosacral spine and lumbar DJD. See 38 C.F.R. § 3.303(a). Although the Veteran's STRs are largely unavailable, the Board finds the Veteran competent to report a back injury while retreating from combat in Korea. Nonetheless, his STRs document a normal clinical evaluation of the spine at the time of reenlistment in August 1953 and at separation in March 1956. Because the examination reports were recorded contemporaneous to service, it is likely accurate in reflecting the Veteran's physical state during service and at service separation and thus probative. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Thus to the extent that the Veteran asserts that he had chronic low back symptoms in service, his service separation findings contradict such lay evidence. The Board acknowledges the Veteran's contentions that he has had rheumatoid arthritis that involved all of his joints, including his back, since service. While the record reflects rheumatoid arthritis in his ankles and left knee, for which he is already service-connected, there is entirely no competent evidence of rheumatoid or degenerative arthritis in his back in service as there is no medical diagnosis of such during service. Additionally, both the January 1997 orthopedic examiner and the internal medicine examiner found that the Veteran's back disorder was not the result of or related to rheumatoid arthritis but was rather typical of DJD. The Board recognizes that the Veteran is competent to report his observable back symptoms; however, as a lay person, he is not competent to diagnose any in-service back symptoms as arthritis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, there is conflicting evidence in the record regarding the onset of low back pain. Specifically, at his August 1977 VA examination, the Veteran reported generalized joint pain, including pain over the low back, since 1973; and at the May 1993 VA systemic conditions examination, he reported back pain that began in the past year. Because the available STRs show that the spine was evaluated and determined to be normal at service separation, as well as the Veteran's inconsistent statements regarding the time of onset of low back symptoms, the Board finds that the weight of the evidence is against a finding of chronic symptoms of a low back disorder during active service. The weight of the evidence is also against a finding that symptoms of a low back disorder were continuously manifested since service, to include to a compensable degree within the first post-service year. As indicated, the earliest evidence of any complaint and treatment for the Veteran's low back is a December 1971 VA treatment record (15 years after separation). In fact, June 1967 and August 1969 VA arthritic surveys showed no significant abnormality of the lumbar spine. Moreover, the first diagnosis of DJD of the lumbar spine was not until June 1974, approximately 18 years after separation from service. As such, the Board finds that the record does not contain any competent evidence of low back arthritis to any degree within one year following separation from service. In addition, the Board finds that the weight of the lay and medical evidence is against a finding of a nexus between the current low back disorder and service. The Board notes that there is evidence of rheumatoid arthritis in service, for which the Veteran has been service-connected. However, the rheumatoid arthritis did not involve his low back. In fact, the August 2003 VA examiner stated that the Veteran's back symptoms were not related to his rheumatoid arthritis but rather was due to the natural process of aging, based on both objective and subjective findings on examination, CT scans, and bone survey x-rays. Additionally, while the November 2008 VA examiner stated that she could not provide an opinion as to etiology of the Veteran's degenerative changes in the lumbar spine without resorting to mere speculation, she found that the Veteran's degenerative changes were most likely age-related. The November 2009 VA examiner likewise found the Veteran's lumbar disorder to be age-related. Moreover, the most recent January 2017 VA examiner found that the Veteran's low back disorder was less likely than not incurred in or caused by service, based on the amount of time that passed from the claimed in-service injury to the time he started receiving treatment for his back condition in 1975. The Board acknowledges the September 2005 opinion by Dr. A.D. that the Veteran's back condition "could be related to an old trauma" suffered in his youth and which had worsened with age, based on the Veteran's report of symptoms involving his back since the accident. However, there is no indication that Dr. A.D. reviewed the Veteran's claims file, or his other treatment records or examination reports in reaching this conclusion. Additionally, service connection for a disability requires a causal relationship between the present disability and the disease or injury incurred or aggravated during service, specifically an opinion that the present disability was more likely than not related to service. Dr. A.D.'s opinion merely states that an old injury could be a possible cause of the Veteran's current low back disorder, but not that it is more likely than not the cause of it. In short, Dr. A.D.'s opinion is equivocal at best and the equivocal nature of the opinion diminishes its probative value. Evidence of a mere possibility is too equivocal to substantiate the Veteran's claim. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus.). The only other evidence in support of the claim is the lay evidence of the Veteran. While the Veteran is competent to describe current observable back symptoms or an in-service back injury or symptoms, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation of a complex medical condition such as low back arthritis and its relationship to service, which requires specialized medical knowledge of the musculoskeletal system, which the Veteran is not shown to have. See Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The Board reiterates that his more recent lay assertions made in the context of the current disability claim are outweighed by the other, more contemporaneous evidence of record, both during service and thereafter. See Charles v. Principi, 16 Vet. App. 370 (2002). That evidence includes the reenlistment and separation examination reports, which show normal clinical evaluations of the spine; and the lack of documentation of reports or treatment for the back until 1971, approximately 15 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Thus, even with the heightened duty to assist and an increased obligation to consider the benefit-of-the-doubt doctrine, the preponderance of the evidence is against a finding of service connection for a low back disorder. The claim must therefore be denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs