Citation Nr: 1752026 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-00 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1985. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the case was transferred to Oakland, California. The case was most recently remanded to the Agency of Original Jurisdiction (AOJ) in March 2016 for additional development. The case has returned to the Board for further appellate action. FINDING OF FACT A chronic low back disorder was not manifest during service and is not attributable to service. Degenerative disc disease (DDD) was not manifest within one year of separation from service. CONCLUSION OF LAW Degenerative disc disease of the low back was not incurred in or aggravated by service and DDD may not be presumed to have incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION I. Remand Compliance As noted in the Introduction, this case was most recently remanded to the AOJ for additional development in March 2016. The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). II. Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA has a duty to notify and to assist the Veteran in the development of his claims. The AOJ satisfied its duty to notify by way of a letter dated in June 2007. The AOJ notified the Veteran prior to the rating decisions on appeal of the information and evidence needed to substantiate and complete the claims decided here, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, how to substantiate a claim for service connection, and how disability ratings and effective dates are determined. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the Veteran's medical records, to include service treatment records (STRs), VA treatment records, and lay evidence have been obtained. Moreover, the Veteran underwent VA examinations during the appeal period, the reports and opinions of which adequately address the issues decided here. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran objected to the professionalism of a VA contract examiner. Any shortcomings in this examiner are addressed below. Neither the Veteran nor his representative has raised any other 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 duty to assist argument). The Board thus finds that further action is unnecessary under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced as a result of the Board's adjudication of the issues below. Service Connection for a Low Back Disorder The Veteran served in the United States Navy as an improved system acoustic operator. The Veteran contends that his present low back disorder was caused by an automobile accident that occurred during his active service. As such, he believes that his low back disorder warrants service connection. 1. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131 (2014); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as DDD, incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2014); 38 C.F.R. §§ 3.307 (a), 3.309(a) (2017). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2016); 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. VA will consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight." It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). II. Evidence and Analysis The Veteran's STRs show that he sought treatment for back symptoms on two occasions. In February 1981, he sought treatment for low back pain for the past two days with no reported trauma or previous history. A clinician noted some back tenderness and stiffness but a full range of motion and diagnosed muscle spasms. He prescribed a muscle relaxant, rest, whirlpool therapy, and limited duty for five days. There was no immediate follow-up. In June 1983, the Veteran sought treatment for residuals of injuries he sustained 10 days earlier when he rolled his automobile while on leave. He reported that he sustained a few lacerations and pain in the back, elbow, neck and chest with the latter two areas continuing to be painful. The Veteran reported that X-rays had been obtained that were negative. The clinician diagnosed cervical and rib strain. He was removed from flight duty for 5 days. One month later, a clinician noted that all symptoms had resolved except for early morning back stiffness. He was placed back on flight duty. The Veteran reported that he had recurrent back pain in his December 1984 separation examination; however, he reported that he did not have bone, joint, or other deformities. Furthermore, he wrote that he felt fine and was not taking medication. The STR's also showed that that the Veteran was taken off flight duty on several occasions for upper respiratory infections or inability to equalize ear pressure. In January 2007, the Veteran sought treatment at the Fresno, California Veterans Affairs Medical Center (hereinafter VAMC). An examiner reported that the Veteran had a "serious herniated disc." The Veteran indicated that he experienced moderate to severe lower back pain within the past 6 hours which made walking difficult. The examiner noted that the Veteran reported that he had a history of localized back pain, which was the result of a 1996 automobile accident. A July 2007 VA medical center (VAMC) record noted that the Veteran reported sought unscheduled acute medical treatment. An examiner provided an assessment of loss of lordotic curvature with severe paraspinous muscle spasms. The examiner also noted that the Veteran had a prior history of disc problems. In November 2009, the Veteran submitted a notice of disagreement. As to a low back disorder, the Veteran wrote that he was involved in a vehicular accident in 1982 which resulted in a back injury. He stated that he was taken off flight status for a few months to heal fully. Frequent low back complaints, according to the Veteran, were conveyed to the flight physician, who periodically took the Veteran off flight duty and prescribed pain medication as needed. After discharge, the Veteran stated that he sought treatment from a chiropractor on a regular basis. Lastly, the Veteran noted that he was involved in an automobile accident in 1996 that "aggravated" his back. The doctor then concluded that the Veteran suffered from DDD. In January 2010, the Veteran submitted another written account. In pertinent part, he stated that he had reported recurrent back pain in his December 1984 separation examination. He also wrote that he indicated that he had painful joints in that report. Lastly, he opined that he had been involved in an automobile accident in 1983. Also in January 2010, the Veteran submitted a notice of disagreement, which largely mirrored his earlier accounts; however, he wrote the in-service automobile accident occurred in 1982. In June 2013, the Veteran's representative submitted an appellant's brief. In pertinent part, the representative opined that service connection is warranted for the Veteran's low back disorder. The representative based this contention on the "multiple complaints within the claims file." In August 2013, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the Veteran's lay accounts, and conducted a physical examination. As to the Veteran's low back disorder, the examiner opined that it was less likely than not incurred in or caused by the Veteran's claimed in-service injury. As a rationale for this opinion, the examiner noted that the Veteran indicated in his separation examination back pain but also reported that he was "fine and not taking medications." The examiner also noted that the Veteran had gained significant weight since service. Furthermore, the examiner referenced an excerpt from a scholarly publication which, in large part, provided metrics as to the coincidence of DDD and age. This publication, according to the examiner, also indicated that over 90 percent of people will show some sign of disc degeneration at one or more levels of the spine. In May 2016, the Veteran was afforded a VA examination. The examiner performed all of the protocols mentioned in the prior examination. Regarding the question of whether the Veteran's present low back disorder is not traceable to service, the examiner provided an extensive response. Specifically, he offered the following: (1) everyone gets back pain (which is as common as the common cold); (2) back pain can be muscular which is temporary; (3) the Veteran's symptoms in service were muscular, as evinced by normal x-ray imaging; (4) post-service records show that the Veteran worked in a physical capacity which showed that he did not have a long-term musculoskeletal back disability as a result of active service; (5) the 1996 automobile accident coincided with the assessment of DDD; and, finally, (6) the well-accepted medical principle of coincidence of degenerative joint diseases and aging. In March 2017, the Veteran was afforded a VA examination. The examiner performed all of the protocols mentioned in the August 2013 examination. This examiner opined that the Veteran's low back disorder was less as likely as not incurred in or caused by the claimed in-service injury. The opinion warrants somewhat lower weight because the examiner incorrectly noted that the service treatment records were silent for any low back treatment. However, the examiner also referred to the coincidence of the 1996 accident and the "work-up which showed DDD." In February 2017, the Veteran submitted a statement, via VA FORM 21-4138. He wrote that he was ejected from a vehicle in a 1983 automobile accident in Missouri. He also reported that he was treated at a regional medical center and released the same day but delayed his travel back to California duty station while he healed. And in September 2017, the Veteran submitted a lengthy response to the Supplemental Statement of the Case. He expressed dissatisfaction with the May 2017 VA examiner's degree of professionalism. He explained that he did not complain or seek additional treatment for his back because he did not want to be grounded and placed in a job not favorable to his abilities. He further noted that the attending physician after his 1996 accident treated him for aggravation of an existing DDD. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for the Veteran's low back disorder is not warranted. As discussed above, to establish a right to compensation for a present disability, a Veteran must show: (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. Holton, supra. Given that the VA examination reports provided an impression of present DDD, the required element of a current disability is present. However, the weight of evidence is against a finding that the Veteran's DDD is attributable to his service. In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the potential cause of degenerative disc disease, a disease involving specialized knowledge of radiology and orthopedics is beyond the scope of lay observation. See id. Thus, a determination as to the etiology of the Veteran's DDD is not susceptible of lay opinion and requires specialized training. See Jandreau, supra. (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, 6 Vet. App. at 469-70. The Board notes that there are no exceptions to the Court's Jandreau doctrine. The Veteran is competent and credible to report that he experienced two episodes of back strain as this is consistent with the service records. However his report of being taken off flight duty for several months because of back symptoms warrants low probative weight as they are inconsistent with the records. The Veteran's lay assertions do not constitute competent evidence concerning the etiology of his DDD. See 38 C.F.R. § 3.159(a)(1) (2017). As noted above, the Veteran's STRs contain encounters for treatment on two occasions, one of which 10 days after a reported automobile accident and cross-country travel. However, on both occasions the diagnosis was muscle strain that resolved. He was restricted from flight duty for 5 days but did not return for a clearance note for one month. He then continued his flight duties for the remainder of his service. On the discharge examination, the Veteran reported occasional back pain, but the examiner noted no spinal abnormalities. Moreover, the May 2016 VA examiner opined that the medical record of evidence shows that the recurrent back pain noted in the Veteran's separation examination was muscular, as evinced by normal x-ray imaging. Furthermore, the VA examiners collectively opined the 1996 automobile accident coincided with the assessment of DDD, 11 years after service. Records of treatment immediately after this accident were sought but were reported to have been destroyed, and there is no competent evidence to support the contention that the treatment at that time was found to be aggravation of an existing DDD. There are also no records to support a current disability associated with recurrent muscle weakness or strain. This forecloses the possibility of service connection for a low back disorder on a direct basis. See Holton, supra. Furthermore, the evidence establishes that degenerative disc disease was not noted during service or within one year of separation. In short, the Veteran did not have characteristic manifestations sufficient to identify the disease process and an assertion of continuity is inconsistent with the medical evidence of record. Despite the Veteran's contention, there is no credible proof of DDD during service or within one year of service. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to a low back disorder is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs