Citation Nr: 1753613 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-18 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for degenerative disc disease with extrusion at L3-4 superimposed on degenerative arthritis of the lumbosacral spine and neuroforaminal stenosis (back disability), to include as secondary to a service-connected disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from June 1974 to January 1975. He also served in the United States Navy from March 1980 to August 1981. The Board notes that as reflected on his DD Form 214, the Veteran was released from the United States Navy in August 1981with an Other Than Honorable Discharge. The Board will only consider the period of honorable service in the adjudication of the issue on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board notes that in his substantive appeal, the Veteran requested a hearing. Accordingly, the Veteran was scheduled for a Board hearing in May 2013. In April 2013, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. In January 2015, the Board remanded the instant issue on appeal for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now again before the Board. The Board notes that service connection has been established for a right knee disability. The Veteran also seeks to substantiate the claim of entitlement to service connection for a back disability as secondary to this condition The Board further notes that in June 2015, VA received correspondence from the Veteran that indicated that he did not wish to argue this occurrence. In October 2017, VA received a memorandum from the Veteran's representative which indicated that despite failure to make contact with the Veteran in receiving clarification on whether he wished to withdraw his claim, the representative declined to withdraw the appeal on the Veteran's behalf. Thus, the Board will proceed with adjudication. FINDING OF FACT The Veteran does not have a current disability of the back that manifested during, or as a result of, active military service, nor does he have a current disability of the back that was caused by, or aggravated by, a service-connected disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a back disability, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. Lastly, the record reflects substantial compliance with the Board's January 2015 Remand. See Stegall, 11 Vet. App. 268, 271 (1998). These directives were adequately followed; thus, the Board finds substantial compliance has been shown. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the 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.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2017). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's service treatment records during his first period of honorable service from June 1974 to January 1975 do not reflect that he suffered a chronic injury to the back during active military service. During his June 1974 entrance examination, the Veteran's spine was deemed to be normal. On his June 1974 Report of Medical History upon enlistment, the Veteran stated that he was in excellent health and did not report any back symptomatology. The service treatment records contain no further evidence of injury to the back or complaints of symptomatology associated with the back, and according to the Veteran's December 1974 release from active duty examination report, an evaluation of the spine was deemed to be normal. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the back at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from a chronic disability of the back, or chronic symptomatology, within one year of his separation from active duty. In a July 2009 VA treatment record, the examiner reported that the Veteran recently had an L-spine X-ray that revealed DJD. The examiner further noted that the Veteran was completely asymptomatic, and that he denied back pain. In October 2009, an MRI (magnetic resonance image) scan was conducted on the Veteran's spine. The examination revealed multilevel lumbar degenerative disc disease, intervertebral disc bulging and facet arthropathy. There was no resultant significant narrowing of the spinal canal. Multilevel neural foraminal stenosis was noted of mild-to-moderate severity on the right at L2-3, L3-4, and L4-5 levels, and on the left at L4-5 level. The examiner also noted L3-4 left dorsolateral disc extrusion associated with moderate left lateral recess stenosis. A January 2010 VA radiology report shows that the lumbar alignment appeared intact. Adjacent soft tissue structures were negative. Bowel gas pattern was unremarkable. Sacroiliac joints were intact. There was no spondylolysis. There were five lumbar vertebral bodies. Normal lordotic alignment was seen. Vertebral body heights were uniform. There was disc space narrowing present at L4-L5 and L5-S1. There were anterior osteophytes. There was no spondylolisthesis or fracture. Posterior osseous elements were grossly negative. Flexion and extension views did not demonstrate aggravated subluxation. In an April 2010 VA treatment note, the examiner noted that the Veteran reported experiencing intermittent back pain through the 1980s. The examiner further noted that the Veteran's symptoms began with insidious onset while truck driving around 1990, approximately 15 years after his separation from honorable active service. As previously stated, the Veteran also seeks to substantiate the claim for service connection of a back disability as secondary to his service-connected right knee condition. In furtherance of substantiating this claim, the Veteran was afforded a VA examination in May 2010. Upon examining the Veteran and the claims file, the examiner noted that the back condition was less likely as not caused by or related to service-connected degenerative right knee condition. On VA examination in May 2010, the Veteran's medical history was reviewed. The examiner provided a diagnosis of multiple level degenerative disk disease with extrusion at L3-L4 superimposed on degenerative arthritis of the lumbosacral spine and neuroforaminal stenosis. The examiner noted that the Veteran denied any injuries sustained to his lower back during active military service. The Veteran further stated that he developed insidious onset of back and leg pain in 2008. The examiner noted that the Veteran had a history of working in construction without any restrictions, and that he was a truck driver over the last 20 to 30 years. In addition, the examiner noted that the Veteran's service medical records were void for any injuries, complaints of or treatment for a lower back condition. Therefore, based on the foregoing, the examiner indicated that there were no risk factors followed in the Veteran's history or physical examination which can explain a connection between the Veteran's right knee condition and his low back condition. The examiner concluded that the Veteran's low back condition was more consistent with a slow degenerative process occurring over his long period of time based on age and working condition, and less consistent with a degenerative knee condition, which has caused little impact on the Veteran's gait. In April 2012, X-rays were taken of the Veteran's spine. The X-rays revealed minimal convex left midlumbar scoliosis. There was anterior marginal endplate spurring throughout the lumbar region with disk space narrowing which had progressed from prior study. No evidence of acute vertebral fracture or subluxation. There were moderate mid and lower lumbar facet degenerative changes noted. The posterior elements were intact. Bilateral SI joint degenerative changes were again noted. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2017). Such conditions are part of a life-long defect and are normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited as 55 Fed. Reg. 45, 711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995) & Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). However, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated during service. While a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, a disease is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPCGPREC 82-90, 56 Fed. Reg. 45,711 (1990). In January 2015, the Board remanded the Veteran's claim of service connection with a back disability in light of the April 2012 X-ray results reflecting the possibility of a congenital abnormality. Therefore, the Board remanded for an addendum opinion addressing the significance of these findings. In response, the Veteran was afforded another VA medical opinion in May 2015. The examiner noted that the October 2009 MRI studies and January 2010 radiographic studies of the Veteran's lumbar spine did not report scoliosis. The examiner further noted that scoliotic changes were not seen. Furthermore, based on the April 2012 X-rays which showed mild scoliosis with moderate multilevel degenerative changes, the examiner opined that the Veteran did not have a true scoliosis, but a positional change due to the recumbent position the Veteran was placed in during the X-rays. Thus, as the examiner concluded that the Veteran did not have scoliosis, the examiner further indicated that the issue of whether the Veteran has a congenital or developmental defect was moot. Consistent with his May 2010 opinion, in his May 2015 addendum opinion, the examiner again concluded that the Veteran's low back condition was less likely as not proximately caused by, aggravated by, or related to his service-connected degenerative right knee condition. The examiner further stated that based on the Veteran's medical treatment records, radiographic/diagnostic studies, and physical examination, the Veteran's claim does not suggest a proximal cause relationship between his service-connected injury and his spinal condition. The Board acknowledges that the Veteran contends that his back pain began in service and has continued on and off since then. While the Veteran is competent to report symptoms and in-service events, the Board unfortunately cannot find the Veteran credible in his assertions that he has had back pain since service. In determining whether statements submitted by a claimant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board finds the Veteran's assertions that his back pain began in service and continued thereafter to be inconsistent with the other (lay and medical) evidence of record. As noted above, the Veteran has reported two different timeframes of onset of pain in his back. In the April 2010 VA treatment noted, the Veteran reported experiencing intermittent back pain through the 1980s. The examiner further noted that the Veteran's symptoms began with insidious onset while truck driving around 1990. However, on a separate occasion, as noted in the May 2010 VA examination, the Veteran reported that he developed insidious onset of back and leg pain in 2008. The Board notes that the service treatment records are devoid of the Veteran being treated for any injury associated with his back. Moreover, treating providers consistently found that the Veteran's back injury was not causally related to an in-service event, as there were no complaints of back pain in-service or until many years after the Veteran's separation from service. Thus, the foregoing inconsistencies and direct contradictions in the record weigh against the Veteran's credibility as to the assertion of onset during and continuity of symptoms since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). It is important to point out that the Board does not find that the Veteran's lay statements of the onset and etiology of his back pain lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the lay statements are found to lack credibility because they are inconsistent with the evidence of record discussed above. Finally, to the extent that the Veteran himself asserts that he suffers from a service-related back disability, such assertions do not provide persuasive support for the claim. While the Board does not doubt the sincerity of the Veteran's beliefs, he simply is not competent to establish either the diagnosis or etiology of the claimed disability on the basis of his own lay assertions. Although lay persons are competent to provide opinions on some medical issues, providing an opinion as to the diagnosis and etiology of a complex disability as a back condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Kahana, 24 Vet. App. at 435. Accordingly, the Veteran's opinions in this regard are not competent, and are therefore of no probative value in this case. The Veteran's service treatment records do not reflect that he suffered from a chronic back condition or chronic symptomatology during his active military service. The evidence of record does not reflect that the Veteran developed a degenerative condition such as arthritis within one year of his separation from active duty. The competent and credible post-service evidence also does not reflect that the Veteran suffers from a current disability of the back that manifested during, or as a result of, active military service, or, that he currently suffers from a disability of the back that was caused by, or aggravated by, a service-connected disability. Finally, the VA examiner of record concluded that it was less likely as not that the Veteran suffers from a current back disability that manifested during, or as a result of, active military service. The May 2010 VA examiner opined that it was less likely as not that the Veteran's current back disability manifested during, or as a result of, active military service. The examiner concluded that the Veteran's low back condition was more consistent with slow degenerative process occurring over his long period of time based on age and working condition, and less consistent with a degenerative knee condition, which has caused little impact on the Veteran's gait. In May 2015, the VA examiner issued an addendum opinion, which was consistent with his May 2010 opinion. Therefore, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current back disability that manifested during, or as a result of, active military service. In sum, the most competent and probative medical evidence shows that the Veteran's back disability did not manifest in service or within the one-year presumptive period, and the most probative evidence fails to link it to the Veteran's service or to his service-connected disability. Under these circumstances, the claim on appeal must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, there simply is no competent, probative evidence to support the current disability and medical nexus elements of the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for degenerative disc disease with extrusion at L304 superimposed on degenerative arthritis of the lumbosacral spine and neuroforaminal stenosis (back disability), to include as secondary to a service-connected disorder, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs