Citation Nr: 1800810	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  12-00 140A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for a low back condition.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Stevens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1979 to November 1983.  

This matter comes before the Board of Veterans' Appeals on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

In July 2016, the Board remanded the issue listed above to the Agency of Original Jurisdiction (AOJ) for further development, and it has now been returned to the Board.  

The issue was remanded so that additional VA treatment records could be obtained and so the Veteran could undergo VA examinations.  The remand directed the AOJ to arrange for the Veteran to be examined by an orthopedic spine surgeon or a neurologist for his low back disability.  A review of the September 2016 examination reveals that the opinion was provided by a Physician Assistant (PA), although the July 2016 remand directive specified that the opinion was to be provided by an orthopedic spine surgeon or a neurologist.  

While the Board specifically requested that the opinion be provided by an orthopedic spine surgeon or a neurologist, the intent behind the directive was not to explicitly limit the opinion to that type of specialist, but instead provide an opinion rendered by a clinician with specialized expertise regarding the lower back.  The Board finds that the PA, a qualified medical professional, through her education and training has sufficient expertise related to the back to provide an adequate examination in this case.  Cox v. Nicholson, 20 Vet. App. 563 (2007).  The Board recognizes that the opinion provided by the PA is a deviation from the remand directive, but finds that there was still substantial compliance and therefore, a remand for correction of the stated directive is not required.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 106 (2008).  

The Board also remanded claims for service connection for tingling and numbness in the upper extremities.  In August 2016, the AOJ granted service connection for left and right upper extremity radiculopathy.  As the grant of the above-mentioned claims represents a full grant of the benefit sought on appeal, and the Veteran has not filed a notice of disagreement (NOD), those issues are not before the Board.  


FINDING OF FACT

The preponderance of the evidence reflects that the Veteran's low back disability was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service.  


CONCLUSION OF LAW

The criteria for service connection for a low back disability are not met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative have 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).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also 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) (2017).  

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board must determine the value of all evidence submitted, including 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, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  38 C.F.R. § 3.102 (2017).  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996).  

The Veteran contends that his back disability is a result of service.  The Veteran has a current diagnosis of lumbar strain and degenerative arthritis of the lumbar spine.  The first element of a service connection claim is met.  

The Veteran's service treatment records (STRs) are silent for complaint, treatment or diagnosis of a low back condition during service.  The record, however, contains a 1981 entry of complaint, treatment, and diagnosis of a cervical contusion/whiplash injury and sprain cervical strain/whiplash injuries sustained in a motor vehicle accident.  The Veteran was given a cervical collar to wear.  

Post service treatment records dated in November 2003 indicate a complaint of back and neck pain.  The Veteran reported having back and neck problems that had worsened since his "recent" motor vehicle accident (which occurred in late February 2003).  

Per the July 2016 remand, the Veteran was afforded a VA examination in September 2016.  The examiner concluded that the Veteran's lumbar strain and degenerative arthritis of the lumbar spine, were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  She rationalized that the Veteran's STRs showed no documentation of any chronic back condition beginning while on active duty.  She also noted that "his private medical records do not support a chronic back condition until several years following his active military service, with a significant thoracolumbar strain being sustained in 2003 (20 years later).  X-rays conducted on March 5, 2003, of the lumbar spine were negative and X-rays at the time of the [the second] car accident revealed mild spondylosis (degenerative age-related spine change)."  

Moreover, as to the likely etiology of the Veteran's lumbar strain and his degenerative arthritis of the lumbar spine, the examiner added "that X-rays conducted after the second car accident revealed mild spondylosis (degenerative age-related spine changes).  [The Veteran] stated he suffered another car accident a few years ago that also worsened his back pain.  His current back conditions are more likely related to the car accident following active military service, as well as, age-related changes, genetics, and lifestyle factors."  

The Board finds this opinion most probative against a finding that the Veteran's low back disabilities were incurred in service or within one year of leaving service.  The examiner provided a well-reasoned rationale for her conclusions.  Significantly, she identified the cause of the Veteran's disabilities as likely related to the car accident following active military service, as well as age-related changes, genetics, and lifestyle factors.  

The Board finds that service connection for a low back disability must be denied.  The Veteran's STRs do not show complaint, treatment, and diagnosis of a lower back condition.  Additionally, the probative evidence of record is absent of post-service complaints of a low back disability until November 2003, after a second motor vehicle accident and 20 years after the Veteran's active service concluded.  

The Veteran was released from active duty in November 1983, and the record establishes that his spine was normal at separation.  The post-service treatment records note that the Veteran was first seen in November 2003 for complaints of lower back pain and neck.  Significantly, when he sought treatment, he reported that his back pain "worsened" since his most recent motor vehicle accident.  Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The competent evidence of record does not show that the Veteran's low back disability became manifest to a 10 percent degree or more within one year of separation from service, in November 1983.  Therefore, presumptive service connection is not warranted.  38 C.F.R. § 3.309(a).  

As to the theory of the continuity of symptomology, the examiner noted that there was no showing of a back condition until several years after active service.  She noted that the Veteran's private medical records failed to support a chronic back condition until several years following his active military service with a significant thoracolumbar strain being sustained in 2003 (20 years later).  Additionally, the March 2003 X-rays of the lumbar spine were negative and X-rays at the time of the car accident revealed mild spondylosis (degenerative age-related spine changes).  

The Veteran asserts that his low back disability was incurred in service.  Additionally, that his lower back disability continued and worsened after service.  Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Lay persons are competent to provide opinions on some medical issues.  Id. at 435.  However, the specific issue, in this case, determining the etiology of his low back disability, falls outside the realm of common knowledge of a lay person.  Jandreau, 492 F. 3d at 1377 n.4.  Such a determination requires medical inquiry into the biological processes, anatomical relationships, and physiological functioning.  Such internal physical processes are not readily observable and are not within the competence of the Veteran who in this case, has not been shown by the evidence of record to have the training, experience, or skills to make such a determination.  To the extent that he asserts continuity of symptomology, the record contradicts this theory.  It is important to note that in November 2003 when he sought treatment after being involved in a motor vehicle accident, he reported that his symptoms "worsened" after that car accident.  However, the probative evidence of record does not show any complaints, treatment or diagnosis of a lower back disability until November 2003, approximately 20 years after the denouement of his service.  Thus, the Veteran's opinion is less probative than the medical evidence.  His assertions were investigated by a competent medical professional, who determined that his disability was not due to service. 

The findings of the September 2016 VA examiner are more probative than the lay evidence.  Therefore, the preponderance of the evidence is against a finding that the Veteran's lower back disability was incurred in or a result of service or manifested within one year of service.  38 C.F.R. § 3.309(a), 3.307(a)(3), 3.309(a).  The benefit of the doubt rule is not applicable.  38 U.S.C.A § 5107 (b); Gilbert, 1 Vet. App. at 55-57 (1990).  Service connection for a back disability is denied.  


ORDER

Service connection for a low back condition is denied. 



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs