Citation Nr: 1752291 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-28 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to August 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. This matter came before the Board in August 2015, at which time the Board remanded to obtain medical records and a VA medical opinion. The Board is satisfied that there has been substantial compliance with the remand; thus, no further development is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's substantive appeal describes how he injured his back and knee. The Board requested that the AOJ clarify whether the Veteran has made a claim for service connection for the knee to the AOJ, but the record does not reflect this has been completed. The issue is once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's back disorder did not manifest to a compensable degree in service or within one year after service, nor is there continuity of symptomatology. 2. The Veteran's current back disorder is otherwise not related to service, to include the in-service treatment for back pain. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§1101, 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, no new evidence was received after the November 2015 Supplemental Statement of the Case; thus all due process considerations have been satisfied. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The pertinent regulations were provided to the Veteran in the Statement and Supplemental Statement of the Case and will not be repeated here. Presumption of Soundness In a February 2014 statement, the Veteran's representative contended the back disorder preexisted service and was clearly aggravated in service, thus entitling him to service connection. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). When the veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Here, the Veteran's service records show a normal spine evaluation at entrance and there is no other evidence clearly and unmistakably showing that the back disorder preexisted service. Accordingly, the presumption of soundness applies and the claim for service connection will be analyzed accordingly. Service Connection for a Back Disorder The Veteran contends that he has a current back disorder that is related to in-service back injuries. During the Board hearing, he testified that he attempted to obtain treatment from VA but was denied treatment because he was not service-connected. Subsequently, he sought private treatment for his back disorder and was diagnosed with a bulging disc in approximately 1975. From 1975 to 1977, he underwent therapy, shots, and medication management. He testified that he did not undergo any further treatment by a medical provider for his back disorder until 2001, when he was referred to a neurologist by his primary doctor. The record shows he was diagnosed with degenerative disc disease (DDD) of the lumbar spine in 2001. Accordingly, a presumptive service connection analysis is not warranted. In consideration of the evidence, the Board finds that service connection is not warranted. The Veteran's service treatment records are associated with the claims file and appear to be complete. They document two instances of back complaints. The first took place in January 1971, when the Veteran complained of low back pain due to lifting tires. He was diagnosed with lower back pain, probably muscle-related. The second instance took place in May 1971, when the Veteran complained of his back hurting while he drove trucks. His range of motion was good and the straight leg raising test was normal, but paravertebral spasms were noted. He was diagnosed with a low back strain. At separation from service, however, his spine evaluation was normal and back complaints or diagnoses were not documented. The records thus show two isolated complaints of acute back pain that was muscular in nature and a normal spine at separation. After separation from service, the Veteran filed a claim for service connection for his ankle but not for his back. He was afforded a VA examination in May 1972, which did not document any back issues. Instead, the examination revealed no sacrospinal spasm or pain and free motion between vertebrae. Two years later, in July 1974, he filed a service connection claim for the back which was denied. While the Veteran contends he was treated for his back disorder in the mid-1970s, VA was unable to obtain any private or VA medical records from that time period. In July 2001, private records show he was diagnosed with significant DDD of the lumbar spine and "an old chronic left L4-L5 radiculopathy." He has been afforded several VA examinations to assess the relationship between his in-service back treatment and DDD during the course of the appeal. The first examination took place in April 2011 and, afterward, the examiner opined that the Veteran's DDD is related, but not caused by, service. In light of the contradictory nature of this opinion, the Board accorded it no probative value. The Veteran was afforded a second examination in August 2012. After review of the claims file, consideration of the Veteran's statements regarding treatment, and examination, the examiner opined that the DDD was less likely than not related to service. He theorized that the Veteran had a "one time lumbar strain" in service that resolved and he was not diagnosed with his current disorder until 2001. He further noted that the Veteran's DDD was more likely than not caused by his longtime profession as a truck driver. Although the Board notes the Veteran had two instances of back issues in service, they were both considered muscular in nature and resolved by separation. Because the examiner considered the relevant medical evidence and the Veteran's statements in forming his opinion, and provided an alternative etiology, the Board finds that this opinion is adequate and probative. Per the Board's remand, an attempt was made to obtain any outstanding private or VA treatment records, to no avail. An addendum medical opinion was subsequently obtained in November 2015, and the examiner concluded that no records were received that changed the August 2012 medical opinion. In light of the aforementioned evidence, the Board finds that service connection is not warranted. The Veteran's service treatment records only show two instances of acute back pain, muscular in nature, and which had resolved by separation. The competent medical evidence indicates that his DDD, which was diagnosed many years after service, is more likely related to his longtime profession as a truck driver. The Board considered the Veteran's contentions he was treated for back pain and diagnosed with a bulging disc in the mid-1970s. While the Veteran is competent to report symptoms he experienced and the diagnosis rendered by a physician, as a lay person, he is not competent to relate that diagnosis to his in-service back pain, particularly since the episodes were acute and resolved by separation, or his 2001 diagnosis of DDD. In sum, the evidence does not show that the Veteran's in-service back pain persisted during and after service, manifested in the 1970s, and resulted as the DDD that was diagnosed in 2001. As the weight of the competent evidence does not relate the Veteran's DDD to service, service connection is not warranted and the claim is denied. ORDER Service connection for DDD of the lumbar spine is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs