Citation Nr: 1753375 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-21 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1967. He died in June 2017. The Appellant is his surviving spouse, so widow. This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in June 2013. A transcript of the hearing is of record. This Board previously remanded this claim to the Agency of Original Jurisdiction (AOJ) in November 2014 for additional development. Since the claim continued to be denied on remand, however, it is again before the Board for further appellate consideration. FINDING OF FACT The preponderance of the evidence indicates the Veteran's low back disability is not related to his military service or to any incident of it and did not manifest to a compensable degree within one year of his discharge from service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a low back disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA has obligations to notify and assist a claimant in fully developing his/her claims. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA fulfilled its duty to notify by providing the Appellant with proper notice, to which she submitted a signed response dated September 15, 2017 indicating she had no further information to submit in support of her claim. Neither the Appellant nor her representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other evidentiary development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Concerning VA's duty to assist, the Veteran's service treatment records (STRs) have been obtained, available pertinent post-service medical records have been obtained, and no outstanding records were identified by the Veteran or Appellant. The Board finds that there has been compliance, certainly the acceptable "substantial" compliance, with the terms of its November 2014 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The indicated available records were obtained and a medical opinion as well addressing the specified issues needed to decide this appeal, including as to whether there is a relationship or correlation between the Veteran's claimed disability and his military service. The Board therefore finds that no additional evidence that may aid the Appellant's claim being adjudicated herein or might be pertinent to the bases of the claim has been submitted, identified, or remains outstanding, and consequently the Board's duty to assist has been satisfied. This duty to assist as mentioned includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. Green v. Derwinski, 1 Vet. App. 121 (1991). The VA Secretary must provide an examination or obtain a medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or a disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with service or with a service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). To this end VA obtained a medical opinion in May 2015 pursuant to the Board's November 2014 remand directive due to the inadequacies of prior examinations and medical opinions. The Veteran indicated in a November 2016 post-remand brief that there was a conflict between the May 2015 VA medical opinion and a December 2014 private medical opinion, and consequently requested an independent medical opinion to resolve the discrepancy. However, as discussed in detail below, the December 2014 private medical opinion was not supported by any explanation or underlying rationale and, thus, is inadequate for purposes of deciding this appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this Neives-Rodriguez decision, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. The May 2015 VA medical opinion gave a detailed reasoning explaining the basis of the opinion, and accordingly provided competent medical evidence sufficient to make a decision on this claim. Therefore, an independent medical opinion is not warranted. There is no indication that any failure on the part of VA to provide additional notice or assistance would reasonably affect the outcome of this case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be probative (competent and credible) evidence of current disability; probative evidence of in-service occurrence or aggravation of a relevant disease or an injury; and probative evidence of a link or correlation ("nexus") between the injury or disease in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board's November 2014 decision (remand) determined the Veteran did not have a pre-existing back condition upon entry into service, and therefore aggravation of a disease or an injury during his service is not a consideration. Additionally, however, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis (degenerative joint disease (DJD)) becomes manifest to a degree of 10 percent or more within one year from date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, though, as discussed below, the record does not indicate that arthritis manifested within this prescribed one year from the Veteran's date of separation from active duty service. Accordingly, this presumption is inapplicable. In evaluating this claim, the Board must determine the value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that are "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Back Disability The Veteran first filed for service connection for a low back disability in April 2010, referencing STRs showing treatment for the condition while on active duty. He was diagnosed with degenerative disc disease of the lumbar spine in 2010; however, as detailed below, the preponderance of the evidence is against finding that his low back disability, even inclusive of this diagnosis, is the result of his service. The Veteran's STRs show numerous instances of claims concerning back pain and trouble beginning immediately upon entry into active duty. Though the majority of treatment notes indicate there was no objective evidence of any back injury or disease, a May 1967 note indicated complaints of pain in the left lumbosacral area and the Veteran was diagnosed with a lumbosacral strain. He was noted to have a history of recurrent back pain on his separation examination report, and the report indicated he had filed for compensation related to his back trouble, but no abnormalities of the spine were identified on the report. Although his STRs do not reflect any explicit injury or incident leading to his back trouble, he testified during his Board hearing that activities such as running during basic training and driving trucks through obstacle courses aggravated his back condition. Post-service private treatment records from October 1968 to March 1969 document musculoskeletal pain concerning the Veteran's knee, hand, and shoulder, but are unremarkable for any complaints referable to his back and low back especially. A March 1971 statement from the Veteran's chiropractor indicated the Veteran was treated daily from July 14 to July 19, 1969, and found symptoms of myofascial fibrositis of the erector spinalis bilaterally, but more pronounced on the right side, with some tenderness in the gluteal musculature bilaterally. The chiropractor diagnosed right sacroiliac sprain causing myofascial fibrositis. A statement from a Mr. J.B., signed March 1971 and received February 1972, claimed that he "had back trouble before and during military service." A statement from a Mr. and Mrs. G.I., signed April 1971 and received February 1972, claimed that the Veteran "had back trouble before he went into the military service and also during service and at the present time." The Board notes that although these individuals are competent to report basic observations relating to the Veteran's back problems before, during, and after his military service, they are not competent to provide an opinion as to the etiology of any such back problems. Private treatment records from between February 2000 and April 2010 show treatment related to the Veteran's shoulder, neck, and upper back throughout the period, but do not indicate complaints or treatment related to his lower back. In an August 2010 statement in support of claim, the Veteran stated that he was treated during service for his back condition with ice packs and exercise classes to strengthen the back muscles. A July 2011 letter from the Veteran's private physician at the Midwest Spine Institute indicated that he initially saw the Veteran in January 2011 and was familiar with familiar with his full history. The physician stated that he was aware that the Veteran had back pain prior to entering the military, but had a significant increase in symptoms while on active duty. He stated that exercising and driving seemed to be problematic for the Veteran and that running and basic training severely increased his symptoms, stating that he "understood" he was injured in 1966 during basic training. He diagnosed the Veteran with degenerative disc disease of the lumbar spine, opining that these conditions were related to his active duty service. As noted above, the record does not indicate that the Veteran suffered a specific injury during basic training. Further, as stated in the Board's November 2014 decision, the physician's opinion was not supported by adequate explanation and is insufficient for purposes of making an informed decision on the current matter. The Veteran was afforded a VA examination related to his lower back claim in November 2011; however, as stated in the Board's November 2014 decision, the examiner's opinion turned on a finding that his lower back condition pre-existed his service, and was based on an inaccurate factual premise. Therefore, it has no probative value. A December 2014 letter from the Veteran's private physician at the Midwest Spine Institute indicated that he reported that he had some lower back pain prior to entering the military, and that his back pain was severely exacerbated by the training involved. He reported that he could not ambulate due to the severity of that pain during and following many of these activities. He again claimed that exercising and driving caused an increase in the severity of his pain. He stated that he has been living with pain since his active duty service. The physician opined that the Veteran's cervical and lumbar degenerative changes were caused by the activities he was required to do in the military. The physician stated that it was his opinion that the Veteran's back condition was secondary to the activities he was required to do in the military, and that those activities severely exacerbated his underlying lumbar spondylosis. However, once again no explanation was given for the physician's conclusion. Furthermore, x-rays of the Veteran's back taken during his active duty service and later in 1969 were normal and did not indicate spondylosis was present. Accordingly, the opinion is inadequate for the purposes of deciding the issue herein. An April 2015 VA medical opinion obtained pursuant to the Board's November 2014 remand directive indicated that it was less likely than not the Veteran's back condition was caused by his active duty service. The physician observed the Veteran's STRs did not show a diagnosis of back disease due to a lack of objective evidence to support a diagnosis. He further noted that, although one treatment record indicated a back strain, that injury is an overstretching or twisting of a back muscle that usually resolves within days or weeks. This commenting physician further noted that the Veteran's separation examination did not indicate any residuals related to back pain or a back strain, and further that to the contrary his back was found to be clinically normal. He stated that, although the Veteran was later diagnosed with degenerative disc disease, there is no medical evidence indicating that a back strain leads to future degenerative changes of the lumbar spine. This commenting physician further indicated that the Veteran's statement that his back pain was treated with ice and an exercise class during active duty does not provide objective evidence that his current back condition was associated with his military service, as ice and exercise are commonly recommended for back strains and people with weak back muscles. Additionally, this examiner stated in an associated January 2015 note that the Veteran's condition was common in people of his age. This examiner concluded that the record does not contain objective evidence that the Veteran's back pain during service was related to his current lower back disability. This physician indicated he could not find the Veteran's lay statements regarding his symptomatology following his separation from service within the case file; however, this physician discussed the Veteran's lay statement from August 2010 and indicated a review of all available records. This physician further noted that he had attempted to find any other documentation pertaining to additional lay statements, including speaking with the Veteran's representative personally, but that no other documentation was provided. Therefore, the Board finds that this physician duly considered all available lay statements by the Veteran concerning his back disability and its purported origin in forming the April 2015 medical opinion. Ultimately, the Board concludes that the preponderance of the competent and credible (and therefore probative) evidence of record is against finding that the Veteran's low back disability originated during his service, within a year of his discharge, or is otherwise related or attributable to his service. Although his STR shows frequent treatment for lower back pain and an attributing diagnosis of a back sprain, his back was found to be clinically normal at time of separation. Moreover, although the record indicates he was treated for a lower back sprain just some two years after separating from active duty, the evidence does not otherwise show any treatment (or relevant complaints) related to any low back condition for over the next 40 years. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). While it is true that 38 C.F.R. § 3.303(b) contemplates continuity of symptoms, not instead continuity of treatment for them, see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991), in this instance the VA compensation examiner who reviewed the relevant evidence has explained that a low back strain in service does not tend to result in an eventual diagnosis of degenerative disc disease. He affirmatively disassociated any notion these two conditions are interrelated, and most importantly he provided the required explanation as to why they are not. So the Veteran merely having a low back strain in service is not, in turn, tantamount to concluding that it ultimately resulted in his eventual diagnosis of degenerative disc disease. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Veteran's private physician provided opinions claiming that his back condition was related to his active duty service, but the opinions failed to provide any supporting explanation and, therefore, are insufficient for use in determining service connection. The Court has made clear that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; instead, this posited correlation between a Veteran's claimed disability and service need only be an "as likely as not" proposition. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Moreover, an etiological opinion has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). In Prejean v. West, 13 Vet. App. 444, 448-9 (2000), the Court held that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. That is to say, a medical opinion must be supported by a fully-articulated rationale with sound reasoning for the conclusion contributing to the probative value of the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Here, converse to these private opinions supporting the claim, the physician that provided the April 2015 VA medical opinion explained that a back sprain was a temporary injury and that treatment with exercises and ice was common for back strains and weak back muscles. The opinion further indicated there was no medical evidence supporting the notion that the Veteran's back strain diagnosed during his service would lead (even eventually) to degenerative disc disease of the lumbar spine. Although the Veteran's representative indicated an apparent disagreement with the April 2015 VA medical opinion in the November 2016 post-remand brief, neither he nor the Appellant has offered any evidence disputing the competency or credibility of the VA physician making that comment or the assertions within the opinion. Thus, the Board finds the April 2015 VA medical opinion adequate for purposes of deciding this claim. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). Ultimately, the most probative evidence of record is against this claim for service connection for a low back disability and it accordingly is denied. ORDER This claim of entitlement to service connection for a low back disability is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs