Citation Nr: 1752679 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-07 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for chronic pain disorder, to include a stomach disorder. REPRESENTATION Veteran represented by: Catherine Cornell, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel INTRODUCTION The Veteran served in the Illinois Army National Guard from December 1982 to April 1985 and in the Reserves until January 1989. He had a verified period of active duty for training (ACDUTRA) from April 18, 1983 to July 21, 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2015 and February 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains additional VA treatment records but otherwise documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that lumbosacral strain, mechanical back pain syndrome, degenerative disc disease, and spondylosis are related to active service. 2. The most probative evidence of record demonstrates that the Veteran's stomach disorders did not have onset during service and are not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain, mechanical back pain syndrome, degenerative disc disease, and spondylosis have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §3.303 (2017). 2. The criteria for service connection for chronic pain disorder, to include stomach disorder, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his attorney 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). Although additional evidence was submitted to the Board after the issuance of he Supplemental Statement of the Case, the Board finds that remand for RO consideration of this evidence is not warranted as it was all related to the back disorders, for which service connection is granted herein. See 38 C.F.R. § 20.1304(c) (2017). The Board is further satisfied that there has been substantial compliance with the prior February 2016 remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2016 remand, the Board requested that the RO contact and attempt to obtain additional clinical records for the Veteran's low back injury, contact any appropriate Federal or State custodian in possession of the Veteran's Army National Guard and Army Reserve medical and personnel records and attempt to obtain the records, afford the Veteran the opportunity to identify any additional relevant medical records, and schedule the Veteran for VA examinations to determine the etiology of the Veteran's claimed back pain and stomach disorder. The record demonstrates that all requested and relevant clinical records relating to the Veteran's low back injury, and Army National Guard and Reserve medical and personnel records, have been associated with the Veteran's claims file. Furthermore, the Veteran was afforded the appropriate VA examinations to address the etiology of the Veteran's back and pain and stomach disorder as required by the 2016 remand directives. The opinions are supported by explanations of rationale, with appropriate citations to the evidence of record. Therefore, the Board finds the examinations and opinions are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, there has been substantial compliance with the prior Board remand and the Veteran's claims may be adjudicated herein. Legal Criteria and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (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)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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 may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military service includes any period of active duty for training (ACDUTRA) during which the individual was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21), (24) (2012); 38 C.F.R. § 3.6(a), (d) (2017). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 102(22); 38 C.F.R. § 3.6(d). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). Here, the Veteran is alleging that both disorders were caused by a motor vehicle accident (MVA) that occurred on June 27, 1984. Although there is no clear verification of the Veteran's duty status at the time of the accident, a United States Army Accident Investigation Report (Report) notes that the Veteran was on active training for the National Guard and was participating in tactical training and field exercises when a MVA occurred. Although there is no clear indication whether this was during ACDUTRA or INACDUTRA, it is of no matter as the Veteran alleges an injury due to that accident. See 38 U.S.C. §§ 101(21), (24); 38 C.F.R. § 3.6(a), (d). Additionally, in a November 2015 rating decision, the RO granted service connection for post-traumatic stress disorder (PTSD) due to the 1984 MVA. Moreover, an Incapacitation Statement from the Veteran's commanding officer stated that the Veteran was disabled for the performance of his military duties between July 2, 1984 to July 12, 1984 due to injury while engaged in training duty under Section 503 title 32 U.S.C, of which such injury was found to be in the line of duty. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303 (a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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); 38 C.F.R. § 3.102 (2016); 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). Low Back Disorder The Veteran contends that he is entitled to service connection for low back disorder, as he feels it was caused by a MVA during service. Specifically, he has reported that he sustained a back injury at the time of an in service MVA. The Veteran also reported that his back pain has continued since separation. He reported that he visited small clinics after service and although he tried to obtain the records, they were unavailable. He also asserted that his post-service employment as a mechanic he mainly did inspection. He stated that there were always machines to do the heavy lifting. First, the Board finds that there is a current low back disorder. The report of a 2015 VA examination indicated a diagnosis of lumbosacral strain. In July 2017, a VA examiner diagnosed mechanical back pain syndrome, lumbosacral sprain/strain, degenerative disc disease, and radiculopathy. A July 2017 private medical record also diagnosed degenerative disc disease with spondylosis. Second, the Board finds that there was an in-service event, namely, a MVA. A United States Army Accident Investigation Report describes an accident occurring in June 1984, in which a truck rolled while going around a sharp curve on a steep hill. Additionally, an Incapacitation Statement from the Veteran's commanding officer stated that the Veteran was disabled for the performance of his military duties between July 2, 1984 to July 12, 1984 due to injury while engaged in the line of duty. Another STR noted the Veteran reported back pain. Therefore, an in-service MVA with back pain thereafter has been shown. Accordingly, as there is a current disability and an in-service event, the issue for resolution is the disability is related to service. A VA examination was conducted in December 2011. The examiner reviewed the Veteran's medical history and took into consideration the Veteran's statements, and determined that the Veteran had a mild lumbar strain. The examiner opined that it was less likely than not that the patient's present back condition was related to his motor vehicle accident on June 27, 1984. The examiner reasoned that the accident the Veteran described was a relatively minimal accident, that there was no documentation of continuous treatment from 1984 until several years ago, and that his pain was not severe until three years prior. Another VA examination was conducted in September 2015. The examiner opined that the Veteran's condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in service injury, event or illness. The examiner opined that the Veteran was treated for a musculoskeletal back injury in active duty in 1984, but that there is no documentation of outpatient follow up treatment at Great Lakes in 1984 nor has there been any continuous treatment since the MVA in 1984. To support the conclusion, the examiner noted that the Veteran continued to work full time as an auto/truck mechanic and did not have radicular symptoms until 2003. In a September 2016 letter, a VA physician opined that the Veteran's present complaints of back pain are more likely than not related to the prior back injury during service. A June 2017 private medical opinion was submitted. The physician noted that a review of the Veteran's claims file. The examiner opined that there was a progressive post-traumatic arthritis of the lumbar spine secondary to the injuries sustained 20 years ago, noting that the degenerative changes were not necessarily commensurate with his age, but were commensurate with a substantial injury sustained over 20 years prior. A VA examination was conducted in July 2017. The examiner opined that the Veteran's current diagnosis of multilevel chronic degenerative disc and facet changes of the lumbar spine, confirmed by an X-Ray report, was a residual of the Veteran's accident while performing military duties at Camp Riley. After reviewing the Veteran's claims file and considering the Veteran's statements, the examiner opined that the Veteran's low back condition is more likely than not a direct result of the Veteran's military service in the US Army. The examiner considered the Veteran's complaints about low back pain and the impact the pain has had on the Veteran's daily life and activities, including functional loss and limitations on the Veteran's ability to perform essential activities of daily living. The examiner concurred with another VA physician's opinion dated July 2017 that it was more likely than not the current diagnoses are a direct result of the Veteran's accident while performing his military duties. 2014 and 2015 private records noted full range of motion of lumbar spine and an unremarkable back. Furthermore, the records noted that the Veteran denied any history of injury and admitted to strenuous activity while at work. The Veteran reported that his job required heavy lifting. The Veteran's wife, sister, and co-workers submitted lay statements in April 2017. The Veteran's wife stated that she married the Veteran prior to his military service. She reported that the Veteran did seek treatment, but that the records were not available. The Veteran's co-worker stated that he met the Veteran in 1996 and that as long as he knew him, he had back pain. Another co-worker stated that he knew the Veteran in the 2000s and he had had back pain at that time. The Veteran's sister stated that she had seen his back pain since he returned from the accident. The Board finds that the most probative evidence of record demonstrates that the Veteran's back disorders are related to service. The 2017 VA examiner reviewed the relevant evidence of record and provided a thorough support explanation. Thus, the Board accords that opinion significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). That examiner relied in part, of the Veteran's statements that he had had back pain and sought treatment since that accident. Significantly, the Board finds those statements both competent and credible. The Veteran is competent to report his pain and his seeking medical treatment. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Additionally, the Board finds those statements credible as they are supported by statements from the Veteran's wife, sister, and co-workers. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, the 2017 medical opinion is based upon the relevant evidence of record. The opinion is also supported by the September 2016 VA physician and the June 2017 private medical opinion. Notably, the 2011 and 2015 VA medical opinions provided negative opinions based, at least in part, upon the lack of back symptoms and/or treatment after service. As the Board has found this to be in error, the opinions are based upon erroneous facts and are not entitled to any probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value). Reasonable doubt is resolved in favor of the Veteran and the Board finds that the Veteran's low back disorders, including lumbosacral strain, mechanical back pain syndrome, degenerative disc disease, and spondylosis are related to active service. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Chronic Pain to Include Stomach Disorder The Veteran asserts that chronic pain, to include a stomach disorder, had its onset during active service and that it has continued since. The Veteran reported that the onset of his chronic pain to include a stomach disorder resulted from MVA injuries sustained in June 1984. The Veteran has reported that he has had stomach problems every day since the accident. The Veteran also recalled that he was lying on his stomach when the jeep struck him in his back as it rolled on him. First, the Board finds that there is a current disability. A May 2016 VA examination report diagnosed gastroesophageal reflux disease (GERD) and gastritis. Second, there is an in-service event, as the MVA is established as having occurred in June 1984. Thus, as the Veteran has a current disability and has established an in service event, what remains for consideration is whether a nexus exists between the current disability and the in service event. The Veteran's service treatment records are silent for any diagnosis, complaints of, or treatment for chronic pain to include a stomach disorder. The Veteran's separation examination did not note any injuries relating to his stomach. At a September 2011 private treatment appointment, the Veteran reported abdominal pain of two weeks. He also stated that he had been having abdominal pain for the prior two weeks, and that he first experienced the pain approximately two years ago but after it resolved he did not seek any further medical attention. A May 2016 VA examination was conducted. The examiner reviewed the Veteran's claims file, and considered the Veteran's relevant medical history. The examiner opined that GERD and gastritis less likely as not were related to service, noting that the Veteran sought not treatment for the pains during service, despite seeking treatment for back pain. The Board initially finds that although the Veteran is competent to report the events of the MVA and any symptoms such as stomach problems, the lay statements regarding abdominal pain are not credible as they have been inconsistent throughout the claims process. See Caluza, 7 Vet. App. at 511. The statements he made in 2009 to a private provider are inconsistent with the Veteran's statements made in the claims process that he has had abdominal problems since 1984. Thus, the continuity of symptoms has not been shown and the first evidence of abdominal pains is in 2009, which is over 20 years after service discharge. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Additionally, the Board accords significant probative value to the May 2016 VA examination and opinion because the examiner reviewed the claims file and provided a supporting rationale for the conclusion reached. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. Further, although the Veteran is competent to report about what happened in service and observable symptomatology, he is not competent to link his current diagnosis of GERD to his active service as this requires medical expertise and are outside the realm of common knowledge of a layperson, as opposed to noting the presence of varicose veins or ringing in the ears. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Accordingly, the Board finds that the preponderance of the evidence is against the claim on appeal and that entitlement to service connection for chronic pain, to include a stomach disorder, is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lumbosacral strain, mechanical back pain syndrome, degenerative disc disease, and spondylosis is granted. Service connection for a chronic pain disorder, including a stomach disorder, is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs