Citation Nr: 1753569 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-08 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active service from April 1984 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, which denied the issue on appeal. In December 2013, the Veteran testified at a hearing at the St. Petersburg RO before a Decision Review Officer (DRO). The transcript is of record. FINDING OF FACT A lumbar spine disorder was not present during the Veteran's service, and his currently diagnosed lumbar spine spondylolisthesis L5 on S1 did not develop as a result of any incident during service. CONCLUSION OF LAW The Veteran's lumbar spine disorder was not incurred or aggravated in service. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See VA correspondence dated December 2010. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. In light of the foregoing, nothing more is required. The notice requirements pertinent to the issue addressed in this decision have been met, and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA examination reports, private treatment records, and statements in support of the claim. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate this claim would not cause any prejudice to the appellant. Otherwise, neither the Veteran nor his representative has raised any 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, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran maintains that his low back disorder was incurred in service. He specifically contends that he was in a motor vehicle accident while on active duty which injured his low back. A service entrance examination dated April 1984 reflects the Veteran had normal spine and musculoskeletal evaluations, and a service discharge examination dated April 1987 noted normal spine and musculoskeletal evaluations. The Veteran denied recurrent back pain at that time. Service treatment records dated February 1987 reflect the Veteran was treated for sharp back pain which started the day prior. The treatment note records that he had redness and tenderness of the lumbar spine area but do not mention a motor vehicle accident. Service treatment records do not reveal any diagnosis of a lumbar spine disorder after the aforementioned February 1987 record, nor is any reference to a motor vehicle accident present in the service treatment records. Post-service treatment records reflect that the earliest low back complaint was in September 1989. A December 2103 letter from the Veteran's private physician reflects the Veteran's assertion that he was in a motor vehicle accident in 1985 which injured his low back. The physician confirmed the Veteran suffered from a low back condition and had undergone back surgery. The Veteran was afforded a VA examination in March 2011. The examiner confirmed a diagnosis of lumbar spine spondylolisthesis L5 on S1. The Veteran complained of constant lower back pain and asserted that he has suffered from low back pain since his 1984 motor vehicle accident. The examiner found no painful motion, tenderness, heat, spasm, deformity, weakness, instability, or loss of function in the Veteran's thoracolumbar spine. X-rays revealed first degree spondylolisthesis L5 on S1 on the lumbar spine. The examiner opined that the Veteran's spondylolisthesis L5 on S1 was not caused by or related to military service. As rationale, the examiner stated the low back pain found in service treatment records had a duration of only one day and then resolved without follow up, the Veteran denied back pain at service discharge, and he was diagnosed with lumbar spine spondylolisthesis L5 on S1 several years after leaving active service. At the Veteran's hearing before a DRO, he testified that he had back problems since his in service injury. He described the in-service motor vehicle accident and testified that he sought treatment in service for his back pain several times. Based on a review of the evidence, the Board concludes that service connection for a lumbar spine disorder is not warranted. Although the evidence shows that the Veteran had one incident of an in-service lumbar spine complaint, in addition to currently having a lumbar spine disorder, it does not establish that any diagnosed disorder is related to his military service, to include any in-service motor vehicle accident. The Veteran's service treatment records contain no indication that the onset of any current low back disorder occurred in service. Although he was once treated for a lumbar spine complaint, his service treatment records are silent for any continued lumbar spine complaints or diagnosis of any lumbar spine disability. With regards to his alleged motor vehicle accident, no documentation pertaining to that accident is shown in the Veteran's service treatment records. Contrary to the Veteran's assertions of having follow-up treatment in service for his lumbar spine, his service treatment records show no treatment for his lumbar spine, or any other disorder, as a result of a motor vehicle accident. His April 1987 discharge examination revealed a clinically normal spine; no lumbar spine disorder was diagnosed and no complaints were made at that time. None of the Veteran's treatment records contain any opinion relating a currently diagnosed lumbar spine disorder as having its onset during his military service. Though the private physician letter of record records the Veteran's contention that his current lumbar spine disorder resulted from an in-service motor vehicle accident, the physician gives no etiological opinion linking the Veteran's low back disorder with such an incident, nor is it clear that the statement is based on anything more than the Veteran's own reported history. In light of the lack of any medical opinion that the onset of a currently diagnosed lumbar spine disorder occurred during service, the Board concludes that the Veteran's current lumbar spine disorder did not begin during service. In this case, the contemporaneous service records and post-service treatment records all fail to show that any currently diagnosed low back disorder is related to the Veteran's military service or that his lumbar spine disorder began during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Furthermore, as the evidence does not show that any arthritis was diagnosed or manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology. 38 C.F.R. § 3.309. The Board acknowledges the Veteran's reports of having back problems since service. However, no continuous lumbar spine complaints were made in service, and the record does not reflect continuity of lumbar spine symptomatology since service. Furthermore, no complaints were made at discharge from service, and a normal spine was shown on his separation examination. In this case, the contemporaneous evidence fails to show a continuity of lumbar spine symptomatology following the Veteran's one in-service complaint. See Curry, 7 Vet. App. 59. The Board has considered the lay statements of the Veteran asserting that an injury which occurred during active duty service caused his low back condition. The Board notes that although lay persons are competent to provide opinions on some medical issues, the specific issue of a relationship between a low back condition and active service is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. In this regard, service treatment reports show only one complaint of a lumbar spine condition. Further, post-service medical records do not reflect any continuity of symptomatology, medical treatment, or other manner of perception of pain or pathology of a low back condition in the year proximately following service. A VA examiner considered the Veteran's contentions but found that his current lumbar spine disorder was not etiologically linked to service, and the Veteran has submitted no competent nexus evidence contrary to the VA examiner's opinion. The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so. The Board finds the medical examiner's opinion is well-reasoned and thorough, having considered the entire record, including the Veteran's medical history, and provides specific medical evidence for the opinions rendered. It is also not contradicted by any other medical evidence of record. The medical opinion thus warrants probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and service connection for a lumbar spine disorder is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs