Citation Nr: 1756698 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-32 026 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas THE ISSUE Entitlement to service connection for lumbar spine disabilities, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to November 1972; and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Kansas Army National Guard from July 1973 to August 2000. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision that, in pertinent part, denied service connection for lumbar spine disabilities. The Veteran timely appealed. In July 2009, the Veteran testified during a hearing before RO personnel. In October 2011, the Veteran withdrew his prior request for a Board hearing, in writing. In April 2015, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2016, VA's Appeals Management Office (AMO) granted service connection for bilateral plantar fasciitis, and this matter is no longer before the Board on appeal. FINDINGS OF FACT 1. Lumbar spine disabilities were not manifested during active service, and arthritis was not manifest within one year of separation; and lumbar spine disabilities are not related (causation or aggravation) to a service-connected disease or injury. 2. Residuals of a low back injury incurred in civilian government employment were not aggravated during a period of ACDUTRA or INACDUTRA, and are not attributed to National Guard service. CONCLUSIONS OF LAW 1. Lumbar spine disabilities were not incurred in or aggravated by active service; and are not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. Residuals of a low back injury were not incurred or aggravated in National Guard service. 38 U.S.C. §§ 101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and 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). These duties have been satisfied in this appeal. All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. A report of VA examination in connection with the claim on appeal is of record and appears adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, there is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, arthritis is considered chronic and a presumptive disease. See 38 U.S.C. § 1101. The Veteran seeks service connection for lumbar spine disabilities, which he believes had their onset in active service and are attributed to an in-service injury. Specifically, he contends that he injured his back in June 1972 while installing a gearbox on a depot maintenance ship. The Veteran testified that he felt sharp pains in his back from turning, and that the gearbox was installed on a location lower than the knees. He testified that he saw a doctor on the ship, who had the Veteran use a hot tub and then worked on the Veteran's back for several weeks. The Veteran testified to having problems with his back since then. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, this is a claim where service treatment records for the Veteran's active service-except for the separation examination-are unavailable. Courts have held that when service treatment records are unavailable, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (noting that the duty to assist is "particularly great in light of the unavailability of the Veteran's exit examination and full Army medical records"). A large volume of treatment records during the Veteran's National Guard service are of record. During this time, the Veteran also performed similar duties as a civilian employee. Clinical evaluation at the time of the Veteran's separation examination from active service in November 1972 reveals a normal spine. Private records show that the Veteran worked as a mechanic at the Forbes Field on the sky crane in August 1976, and received treatments from a local chiropractor for back pain. Employment records, dated in July 1987, show that the Veteran suffered a stabbing pain in the lower back and hip area which caused him to collapse, after picking up a tool bag and gear from an aircraft and turning to the right. This injury occurred while performing his civilian duties. At that time he reported a pre-existing injury when he strained his lower back in 1976. Diagnoses in July 1987 included lumbar subluxation complex of L5, sacroiliac subluxations, lumbar nerve root compression, and lumbar myofascitis. Private records include the report of a September 1992 occupational physical examination which reveals a normal back. Private records, dated in October 1995, show that the Veteran was treated by a chiropractor "off and on since 1976, when he injured his low back, mid back and left shoulder while opening one of the large hanger doors at Forbes Field." The chiropractor indicated that, since then, the Veteran had various sprain/strain-type injuries: mid-thoracic sprain, September 1977; low back, July 1987; low back and hip, June 1989; mid-thoracic, September 1990; low back, August 1991; low back, July 1992; neck, July 1994; low back, October 1994; low back, June 1995, and low back and left hip, October 1995. The chiropractor noted that the Veteran has a chronic low back problem, and has to restrict activities at work and at home. Significantly, on reports of medical history completed by the Veteran during National Guard service in 1973, 1975, 1979, 1985, 1986, 1989, 1991, 1992, 1993, and in 1995, he checked "no" in response to whether he ever had or now had recurrent back pain. Clinical evaluations revealed a normal spine in 1985, 1986, 1989, 1991, 1992, 1993, and in 1995. The Veteran was consistently found qualified for flight duties as a helicopter crew chief. On a report of medical history completed by the Veteran during National Guard service in February 1996, he checked "don't know" in response to whether he ever had or now had recurrent back pain. The examiner then noted low back pain. National Guard records, dated in June 1996, show a provisional diagnosis of L5-S1 spondylosis. At the time the Veteran reported a long history of low back pain of seven years' duration. He reported having no radicular symptoms, and reported that the pain had gradually increased so that it hurt when he stood for a long time. Clinical evaluation in June 1996 reveals that the Veteran had a normal gait, and that he could toe walk and heel walk and single leg stance. X-rays reveal spondylolysis at L5-S1 bilaterally with mild grade I spondylolisthesis and some degenerative changes. The physician opined that, in all likelihood, these are degenerative changes and not progressive instability in nature. Records show that a bone scan conducted in July 1996 is consistent with spondylolysis. National Guard records show that the Veteran was given a physical profile for degenerative disc disease, L1-L4, with spondylolysis of L5 in August 1996. Also of record is a summary statement of military retirement points showing that the Veteran had ACDUTRA and INACDUTRA yearly from 1973 to 2000. The actual dates of ACDUTRA and INACDUTRA during prior to 1993 are not recorded. However, dates of ACDUTRA and INACDUTRA are of record from the Defense Finance Service. In the Veteran's last National Guard physical examination in April 2000, the examiner noted no spinal abnormalities and the Veteran denied any recurrent back pain or back injury. The Veteran was found to be qualified for flight duties. The Veteran filed a claim for service connection for lumbar spine disabilities in July 2008, and had indicated that disabilities began in April 1996. Following the Board's April 2015 remand, the Veteran underwent a VA examination in June 2016, and was diagnosed with disc disease from L1-L4 showing osteoarthritic changes; and also was diagnosed with back strain. At the time the Veteran reported a history of injuring his back during National Guard service in 1976 or 1977 while doing training. Specifically, he reported looking down from helicopters and straining his back. He reported being told at the time it was just muscle, and reported receiving treatment from a civilian chiropractor. He reported having back pain "off and on." Contributing factors of disability include disturbance of locomotion, interference with sitting, and interference with standing. Following examination in June 2016, the VA examiner opined that the lumbar spine disabilities were less likely than not incurred in or caused by in-service injury, event, or illness. In support of the opinion, the June 2016 examiner reasoned that the first documentation of back pain was in August 1976-nearly four years after service discharge; and there was no indication of any chronic disability or residuals from this 1976 episode. The VA examiner suggested that the back strain was treated conservatively and apparently resolved, as there were no other documented back problems until 1987. The VA examiner also indicated that the 1987 back problems stem from a work injury as a civilian, after picking up a tool bag. The VA examiner also found that medical examinations of record did not indicate any chronic back disability until 1996. In this regard, the VA examiner explained that degenerative changes of the lumbar spine are universal over time; and that degenerative joint disease of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive injury. The VA examiner opined that the Veteran's degenerative joint disease of the lumbar spine is more likely than not caused by age and by occupational history, which predisposes his developing degenerative joint disease of the lumbar spine. In this case, the Board finds that the evidence is against a finding that arthritis of the lumbar spine was incurred in active service or within the first year after separation. In particular, the normal findings in the separation examination establish that arthritis was not "noted" at any time during active service; and that arthritis of the lumbar spine subsequently was identified long after service. The Veteran's report of in-service onset and continuity since installing a gearbox on a depot maintenance ship in 1972 is inconsistent with the normal separation examination which included normal findings of the spine. Clearly, the Veteran sustained a muscle strain that resolved prior to discharge from active duty and did not have characteristic manifestations sufficient to identify a chronic disease entity during service or within one year. 38 C.F.R. § 3.303. Thus, his statement regarding the onset during service and continuity of arthritis of the lumbar spine since service warrants low probative weight. Here, the Veteran is competent to testify as to symptoms he has experienced that are capable of lay observation, such as lumbar pain. However, the lay evidence must be compared with the medical evidence, which shows no link between current disabilities of the lumbar spine and any in-service disease or injury. The VA examiner explained that there were no lumbar problems noted in active service. In this case, there is no reliable evidence linking the Veteran's current disabilities of the lumbar spine to disease or injury in active service. To the extent that there was a back injury in 1972 in active service, it has not produced chronic residuals. The Board finds the medical evidence to be far more probative and more credible than the lay evidence. With specific regard to National Guard service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, ACDUTRA. With respect to time periods of inactive duty training, service connection may only be granted for injury so incurred or aggravated, or for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. §§ 101 (24), 106, 1110, 1131 (2012); 38 C.F.R. § 3.6 (2017). To the extent the Veteran contends that he injured his lumbar spine in National Guard service, his statements are competent. However, he is not shown to have the medical expertise to diagnose or determine the etiology of his current disabilities of the lumbar spine. Degenerative changes of the spine are not something that would be readily apparent to a lay person. Physicians must rely on examination, medical history, and special diagnostic testing to render a diagnosis and determine etiology. In this case, the Board finds credible, competent and probative the Veteran's report of injuring his low back in 1976 and in 1987. However, subsequent clinical evaluations in National Guard service revealed a normal spine. To the extent that there were off duty back injuries in 1976 and in 1987, they have not produced chronic residuals. The Board finds the medical evidence to be far more probative and more credible than the lay evidence. Likewise, as explained by the June 2016 examiner, the findings of degenerative disc disease, L1-L4, with spondylolysis of L5 in August 1996 are more likely than not caused by age and occupational history. This is highly probative evidence against finding a nexus or onset during brief periods of ACDUTRA in 1996 in National Guard service. The Board places significant probative weight on the Veteran's consistent denial of recurrent back pain on many National Guard examinations, his continued flight qualifications for the entire period of National Guard service, and on the relatively shorter in time on National Guard duty compared to the time performing the same function as a civilian employee. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after active service with no competent evidence that lumbar spine disabilities are in any way related to active service or to National Guard service. The Veteran also seeks service connection for lumbar spine disabilities which he believes are associated with his service-connected plantar fasciitis. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. Based on examination and review of the Veteran's medical history, the VA examiner in June 2016 opined that it is less likely than not that the Veteran's lumbar spine disabilities were caused or aggravated by his service-connected plantar fasciitis. The VA examiner was unable to locate any peer-reviewed studies that support the concept that plantar fasciitis would cause degenerative joint disease in the lumbar spine. The VA examiner also opined that the Veteran's lumbar spine disabilities were not aggravated beyond their natural progression by an in-service event, injury, or disease. In support of the opinions, the VA examiner reasoned that a chronic back disability was diagnosed in 1996, and there is no documented "line of duty" determination for the disability during National Guard service. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the June 2016 opinion to be persuasive in finding that lumbar spine disabilities are less likely due to or aggravated by service-connected plantar fasciitis. The VA examiner reviewed the medical history and provided a rationale which considered whether there was any nexus between current disability and service-connected disability; and indicated that the etiology of the Veteran's lumbar spine disabilities were degenerative from aging and occupational history, rather than any service-connected disease or injury. The opinion is consistent with the evidence of record and is factually accurate, fully articulated, and contains sound reasoning. Therefore, the June 2016 opinion is afforded significant probative value because it is based on a review of the Veteran's medical history and is supported by the evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. To the extent that the Veteran asserts a relationship to a service-connected disease or injury, he is competent to report that which he has been told by a medical professional. However, his lay/medical opinion is of no greater probative value than the medical evidence upon which it is based. Here, any such medical opinion and lay statement are lacking in foundation and are accorded little probative value. Specifically, the Veteran's representative contended that orthopedists accept long-term altered gait and stance as affecting other joints and cited a research paper as supporting this theory. However, in this case, the evidence clearly shows that the Veteran had a normal gait in June 1996, and that he could toe walk and heel walk and single leg stance. The Veteran also reported having no recurrent back pain for several years during National Guard service including in the April 2000 examination. The Board finds the VA examiner did note consideration of the Veteran's National Guard service and the examiner's opinions in June 2016 are fully supported by the evidence of record, including National Guard service, and the progressive nature of lumbar disc disease. The bone scan in 1996 also was consistent with spondylolysis, and no examiner attributed any increased severity to a service-connected disease or injury. Accordingly, aggravation is not demonstrated. In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for lumbar spine disabilities, to include as secondary to a service-connected disease or injury. On this matter, the preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lumbar spine disabilities is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs