Citation Nr: 1800806 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-31 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McGoings Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to June 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2015, a Board hearing was held where the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's file. In June 2017 the issue on appeal was remanded by the Board in order for the RO to obtain additional records and to schedule the Veteran for necessary VA examinations. The Board finds that there has been substantial compliance with the Board's remand directives, and the matter is now appropriately before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran submitted additional medical records, including information about his workers' compensation claim, in September 2017, accompanied by a signed waiver of RO consideration. FINDING OF FACT The Veteran's back disability did not begin during service and is not shown by persuasive medical evidence to be linked to military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative 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). Further, the Veteran has not alleged any deficiency with the conduct of his hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service Connection, Back Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's service treatment records have been associated with the claims file and appear to be complete. The records note that the Veteran injured his back in a howitzer accident in January 1984 that did not result in a fracture, but did cause the Veteran to experience dull pain and stiffness in the lumbar region. The Veteran also injured his back in February 1984 when he fell out of an M1 howitzer. Multiple views of the spine revealed no evidence of fracture and the intervertebral disc spaces were well maintained. The Veteran was not diagnosed with a chronic back condition during service. The Veteran's VA outpatient treatment records have been associated with the claims file and reviewed by the Board. The Veteran reported for his initial visit with VA in January 2011 because of his thoracic back pain. The records show repeated visits and treatment for thoracic, as well as cervical, spine pain. Multiple notes, such as in June 2013, mention that the Veteran's back pain began, or dramatically increased, following his January 2003 cervical spine surgery. The records do not discuss the etiology of the back condition, save for the Veteran's own reports to examiners. A March 2016 compensation and pension examination diagnosed lumbosacral strain as well as degenerative arthritis of the spine. The Veteran was also diagnosed with radiculopathy and intervertebral disc syndrome. The examiner concluded that the Veteran's back condition was less likely than not incurred in or caused by military service. As support, the examiner references the Veteran's service-related injury, as well as his work-related injury as a roofer. The examiner explains that both injuries were traumatic enough to contribute to the Veteran's back disability and it was therefore difficult, if not impossible, to determine which event, on its own, caused the Veteran's back condition. However, the Board notes that this examiner based her findings on an inaccurate fact, that the Veteran sustained a compression fracture during service. The service x-rays conclusively show otherwise. Thus, this examination been assigned less probative weight in comparison to other evidence of record. The Board notes that the record contains several separate etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Veteran received a medical opinion from a private examiner, Dr. D.T., stating that the Veteran's back disability is related to the Veteran's "significant injuries of in service medical problems." Unfortunately, this examiner based his findings on an inaccurate fact, that the Veteran suffered a compression fracture during service. Specifically, the private examiner noted that "the issue of a compression fracture is a significant one, requiring a significant amount of trauma and a significant amount of force. It is my opinion that the patient has had a condition with the accident that caused him to have complaints of back pain and a diagnosis of a compression fracture provided." The Veteran has repeatedly told medical professionals that he had a compression fracture during service. This history is directly refuted by the contemporaneous service records, which show the compression fracture diagnosis was a preliminary one, ruled out by subsequent x-rays which showed no fracture. Further, though the examiner states that he reviewed "some records", it is unclear to what extent the examiner reviewed the Veteran's file and his service records. The Veteran argues in 2017 correspondence that Dr. T. did review his service records. If that is true, it is clear he did not review the x-rays which definitively established no compression fracture following the injury, because he states there was a compression fracture, which is patently false. For these reasons, the Board finds the medical opinion of the August 2017 VA examiner (discussed directly below) to be more probative than that of the private examiner, because the VA examiner reviewed the claims file, based his opinions on an accurate account of the in-service injury, and provided adequate reasons and bases for his findings and conclusions. The Veteran was afforded a compensation and pension examination in August 2017 pursuant to the Board's remand instructions. The examiner concluded that the Veteran's back condition is less likely than not incurred in or caused by military service, including the reported motor vehicle accident(s) during service. The examiner noted the Veteran's preliminary diagnosis of a compression fracture that was later ruled out by x-rays, but stated that it was a subsequent back injury wherein the Veteran slipped on a roof in 2002 that altered his anatomy (herniated disc), and required surgery. The examiner went on to state that the positive nexus opinion provided by Dr. D.T. is based on mere speculation rather than fact and failed to discuss the Veteran's 2002 back injury that resulted in surgery. The Board has placed the greatest probative weight on this examination, as it is based on a review of the Veteran's file, discusses conflicting medical opinions, and the examiner's conclusions are supported with reasons and bases. The Veteran submitted several documents in 2017, arguing that the 2002 injury did not involve him falling off a roof. Those documents indicate that he was working on a slate roof that was wet, carrying a ladder, when he twisted and slipped, sustaining an injury to his low back. This is consistent with his hearing testimony as well. However, whether he actually fell off the roof or not makes no difference. The VA examiner's conclusion was based on the premise that the 2002 injury was significant enough to result in a herniated disc. That fact remains true, as shown by the 2002-03 medical records, MRI, and January 2003 diskectomy. Regardless of whether the mechanism of the injury was a slip or a fall, it is conclusively shown he herniated a lumbar spine disc because of that injury, and the VA examiner clearly found this was the cause of his current back problems. This is the exact opposite of the issue with Dr. T's opinion - where he states the Veteran sustained a compression fracture during service which was false. In other words, the severity and medical implications of the 2002 work injury were accurately considered by the VA examiner, although how that injury occurred was not described accurately. The records submitted by the Veteran in 2017 contain several records from Dr. T., and nowhere at the time of the 2002-03 treatment did the Veteran ever mention a military back injury. Also Dr. T. wrote several letters on the Veteran's behalf at that time fully attributing the back condition to the 2002 work injury. This further reduces the evidentiary weight of his statement more than a decade later that the Veteran's back condition began in service. Essentially Dr. T. wrote one conclusion on the Veteran's behalf to assist him in his workers' compensation claim and then a totally contrary conclusion to assist him in his VA claim. A review of the record fails to establish that the Veteran's claimed back disability is related to military service, or, that the disability became manifest within one year following military service. The greater weight of the evidence shows that the Veteran's work-related 2002 injury altered his anatomy and ultimately caused his back disability. Thus, the Veteran's claim of service connection for a back disability The evidence is not in equipoise, rather the greater weight of it is against any claim that the Veteran's back disability is related to service. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to service connection for a back disability is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a back disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs