Citation Nr: 1751262 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-22 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his Spouse. ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1988 to November 1993. Furthermore, the Veteran served in Southwest Asia from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying the Veteran's claim to reopen a previously denied claim for service connection for a low back disability. A February 2016 Board decision reopened this matter based on new and material evidence received and remanded the claim for further development. The Board again remanded this matter in April 2017. The Board finds that there has been substantial compliance with the April 2017 remand directives and that the matters are now properly before the Board. See, Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in Waco, Texas in August 2015. A transcript of the hearing is associated with the claims file. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran has currently diagnosed degenerative arthritis of the spine. 2. Degenerative arthritis of the spine was diagnosed in August 2010. 3. The Veteran's degenerative arthritis of the spine did not manifest in service or within one year of separation from service, or for several years thereafter, and is not etiologically related to service. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran maintains that his current low back disability was caused by an injury to his lumbar spine as the result of a fall from a vehicle while serving in Saudi Arabia during the Gulf War. The Board notes the Veteran qualifies as a Persian Gulf Veteran. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in April 2012, May 2016, and April 2017 letters, as well as a June 2017 email. 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. The Veteran was provided a hearing before the undersigned VLJ in August 2016. As there is no allegation that either of the hearings provided to the Veteran were 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 Law and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See, Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for arthritis) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A lay person is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board will first address direct service connection and then presumptive service connection. It is not disputed that the Veteran has a current diagnosis of degenerative arthritis of the spine. As such, the Board finds that the first Hickson element has been met. The Veteran has repeatedly maintained that while in Saudi Arabia during the Gulf War, he fell from a two and a half ton truck and struck his back on the tailgate. The Veteran's Demobilization/Redeployment Questionnaire from June 1991 shows the Veteran reported a shoulder injury from falling off of a truck while deployed in the Southwest Asia. As such, the Board finds that the second Hickson element has been arguably met. A service treatment record dated February 1990 notes the Veteran complained of off and on throbbing back pain in the right thoracic region. The examiner noted an assessment/diagnosis of myofascial trigger point. As mentioned above, the Veteran's Demobilization/Redeployment Questionnaire from June 1991 shows the Veteran reported a shoulder injury from falling off of a truck while deployed in the Southwest Asia. However, the Veteran's complaint was that of recurring shoulder pain. The Veteran stated "the pain still comes back when I lift weights." There is no mention of a back injury. The Veteran's separation examination dated October 1993 notes the Veteran stated he is in good health and responded "NO" for complaints of recurrent back pain. The Veteran was afforded a VA Persian Gulf examination in February 2000. It was noted that the Veteran worked in construction for 18 months and had recently quit due to back pain, for which he "received Workman's Compensation for his back pain...for twelve weeks." The Veteran reported that his back pain began in 1990. A February 2000 VA x-ray study of the lumbosacral spine notes that the vertebrae were intact and normally aligned with the disc spaces being normal in width. The sacroiliac joints were noted as being normal and symmetrical in width. The Sacral arches were noted as being intact and symmetrical. A chest x-ray revealed "minimal scoliosis of the lower dorsal spine convex to the left." At a VA general medical examination in May 2000, the Veteran reported experiencing back pain since returning from the Gulf War in 1991. The Veteran further reported treating the back pain with Motrin and heat. Upon examination, the Veteran was diagnosed with chronic back pain. At a May 2001 VA mental health examination, the Veteran reported he had no outpatient care at any VA facility or private physician other than a chiropractor whom he visited for back problems. The Veteran reported that he hurt his back while in Saudi Arabia. The Veteran denied any lost time at his job due to his physical illnesses, but reported that he was unable to drive for long periods of time as his back would hurt. At a June 2001 VA examination, the Veteran reported his back symptoms began when he returned from the Gulf War, around 1992 to 1993. The Veteran reported the pain was intermittent. The Veteran further reported that there was no swelling, erythema, effusion, edema, instability, back brace usage, or muscle spasm. The Veteran's posture, gait and range of motion were noted as normal. Minimal discomfort in the lumbosacral spine area was noted, with no suggestion of disc disease. A lumbosacral spine x-ray was noted as normal. The examiner concluded the Veteran had mechanical low back pain. The Veteran submitted a Notice of Disagreement (NOD) in December 2001, reporting that he had been suffering from back pain for 10 years, stemming from when he fell off of a two and a half ton truck during Operation Desert Storm. The Veteran reported that when he fell, he hit is back on the tailgate. The Veteran further reported that his wife massages his back every night so that he could go to sleep. The Veteran reported that he had seen a back doctor who told him that his back had been "jammed", and that he couldn't afford to continue treatment with the doctor. A VA treatment record from May 2005 notes the Veteran reporting intermittent low back pain since he fell and hit his lower back on a tailgate while in service. The Veteran's wife submitted a statement in support of claim in May 2012, stating that for more than 4 years she had witnessed the Veteran not being able to sit or stand for long periods of time and having to take a "constant barrage" of medicine to manage the pain. The Board notes that the Veteran married his wife in 2008. A VA treatment record from June 2013 notes an "ongoing tightening up" of the Veteran's back pain. The Veteran reported flare ups "from time to time". It was also noted that the Veteran reported no chiropractic, acupuncture, physical therapy or TENS treatment since the Veteran injured his back during the Gulf War. A VA treatment record from July 2015 notes the Veteran reports having low back pain for years. A separate July 2015 VA treatment record notes that x-rays were taken of the Veteran's lumbar spine and were compared to August 2010 x-rays. Minimal facet joint arthritis was noted with normal alignment and no signs of an acute process. No change since prior exams was noted. A Board hearing was conducted in August 2015. The Veteran testified that while in Saudi Arabia during the Gulf War, he was standing on a box on top of a two and a half ton truck when the box gave way, causing him to fall and hit his shoulder and back against the tailgate and his head on hard cement. The Veteran testified that this was about an eight foot fall. The Veteran further testified that he was rendered unconscious but was sent back to his unit and was placed on bedrest. The Veteran then testified that from that time on he has had shoulder and back problems. The Veteran further testified that he has not had any falls, accidents or injuries that would have affected his back since the injury in 1991 during the Gulf War. VA treatment records from March and April 2016 note the Veteran reported back spasms and lower back pain. The Veteran submitted a statement in support of claim in May 2016 stating that he had no records from the private provider from twenty years prior. The Veteran further stated that his lower back pain was constant and reiterated that he has had back pain since falling from a two and a half ton truck during the Gulf War. The Veteran was afforded a VA examination in July 2016. The examiner diagnosed degenerative arthritis of the spine. The Veteran reported that while in Saudi Arabia during the Gulf War, he fell from a two and a half ton truck and struck his back on the tailgate and was rendered unconscious. The Veteran further reported that he was sent to a field hospital, evaluated and then sent back to his unit. The Veteran further reported that he has had back pain since this injury. No flare ups were noted. The examiner noted an abnormal range of motion and pain, neither of which contributed to a functional loss. Pain was noted on forward flexion, extension, right lateral flexion and right lateral rotation. No evidence of pain with weight bearing was noted and the Veteran was able to perform repetitive-use testing with at least three repetitions, with additional loss of range of movement after such repetitions. Interference with both sitting and standing were noted. Muscle strength testing was normal with no noted atrophy. Reflex and sensory examinations were also noted as normal. The examiner noted that imaging studies of the thoracolumbar spine show arthritis. It was further noted that the Veteran is limited in the amount of time of weight bearing and that his lifting capabilities are greatly reduced. The examiner concluded that the Veteran's degenerative arthritis was less likely than not caused by the Veteran's service and opined that the most recent imaging of the lumbar spine demonstrated "mild degenerative changes," which indicates changes compatible with normal aging, whereas an injury from falling from a truck would reasonably produce greater changes if the changes were secondary to the fall. In April 2017, the Board remanded this matter for further development, to include assisting the Veteran in obtaining private medical and chiropractic records relevant to this matter. In compliance with the Board's remand directives, the Veteran was sent a letter in April 2017 requesting the Veteran complete a VA Form 21-4142 authorizing VA to obtain medical records from the Scott and White Clinic, as well as other private treatment providers, to include chiropractors. Although the Board notes that subsequent letters were returned to VA marked "Return to Sender", this particular letter was not returned and the Veteran did not respond to this letter. VA sent the Veteran an email on June 26, 2017. There is no indication that the Veteran ever responded to this email. There is a presumption of administrative regularity in VA processes, procedures, and mailings allowing the assumption that VA has properly discharged its duties and responsibilities. See, Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties); see also, Mindenhall v. Brown, 7 Vet. App. 271 (1994). This presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See, Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA obtained a medical opinion from the Appeals Resource Center in June 2017. After reviewing the record, the examiner opined that it is less likely than not that the Veteran's low back disability is etiologically related to or aggravated by his service. The examiner addressed the February 1990 service treatment record for a myofascial trigger point right lateral thoracic condition without changes in respiratory and/or cardiovascular moieties by noting that the remainder of the service treatment records are "silent for chronicity and continuity of complaints, diagnosis, treatment, re-injury and/or event related to the right lateral thoracic region, it is at least as likely as not that the Veteran's 05 February 1990 presentation was an acute, transient and self-limited condition." Moreover, the examiner noted that "the anatomical involvements of right lateral thoracic soft tissues are independent and separate from lower lumbar back moieties." Furthermore, the examiner noted that February 2000 Gulf War Examination "clearly indicated a post service low back injury while working construction" which entitled the Veteran for 12 weeks of Workman's Compensation. The examiner further noted that the "corresponding radiographs, dated 02 February 2000, observed a normal examination." The examiner also noted that "[s]imilarly, the 12 March 2008 lumbosacral spine radiographs also observed normal alignment, bone density and disc and vertebral body height. Two years later and approximately 17 year following separation, the 11 August 2010 lumbosacral spine radiographs observed moderate facet hypertrophy at multiple levels. The lumbar vertebral body height and intervertebral disc spaces were well-maintained. Osseous structures seen appeared intact." Finally, the examiner noted that "[s]imilarly, the 30 July 2015 lumbosacral spine radiographs observed minimal degenerative changes in the lower levels with stability." The examiner opined that it is less likely than not that the Veterans claimed low back disability was related to and/or was aggravated by military service but is related to his normal aging process and post-service construction work. The Board finds that the June 2017 medical opinion from the Appeals Resource Center to be significantly probative in nature. 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. 205 (2008). This medical opinion provides a thorough analysis of all of the evidence and opined against any nexus between the Veteran's current low back disability and his service. While the Veteran is certainly competent to report the low back pain he has felt, as well as its longevity, there has been no competent evidence submitted that indicates he suffered a low back injury while in service that relates to his current low back disability. The Board finds that the preponderance of the evidence shows that the Veteran's current low back disability is unrelated to service and has been satisfactorily attributed to intercurrent, post-service causes, here, a low back injury which entitled the Veteran to twelve weeks of workman's compensation, as well as the normal aging process. The requirements of the third Hickson element have not been met, and as such, the claim for direct service connection fails here. With regards to presumptive service connection, the weight of the evidence, lay and medical, does not demonstrate that symptoms of the current low back disability have been continuous since service or manifested within one year of discharge from service. Accordingly, the preponderance of the evidence is against the Veteran's claim and presumed service connection for a low back disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs