Citation Nr: 1801353 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-03 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a lumbar spine disability, to include myositis. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty from December 1961 to September 1963. This appeal is before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at an April 2013 Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in Louisville, Kentucky. A transcript of the hearing is of record. In January 2014, the Board remanded the issue on appeal to the Agency of Original jurisdiction (AOJ) in order to obtain Social Security Administration (SSA) disability records, outstanding VA treatment records, and a VA opinion regarding the etiology of the back disability. VA obtained outstanding VA treatment records and a VA opinion. The AOJ attempted to obtain SSA records but received a response from the SSA that the records do not exist and further efforts to obtain them would be futile. See January 2017 VA letter. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran sustained an acute and transitory injury to the low back in service, which resolved prior to service separation. 2. The current lumbar spine disability is not related to service and did not manifest within one year of service separation. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Required notice was provided by a letter dated in October 2010. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service medical records and VA treatment records have been obtained, as have relevant private medical records identified by the Veteran. Moreover, as noted above, the AOJ attempted to obtain SSA records, but received a response from the SSA that the records do not exist and further efforts to obtain them would be futile. See January 2017 VA letter. In October 2017, the Veteran was afforded a VA examination in connection with the claim for service connection on appeal. The examination and associated report are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for a Lumbar Spine Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 claimant 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for a lumbar spine disability. He asserts that the current lumbar spine disability is related to an injury he sustained as a result of a fall in service. The record reflects that the Veteran has current back conditions of dextroscoliosis with multilevel degenerative disc disease, degenerative arthritis, and spinal stenosis. See, e.g., January 2011 and October 2017 VA examination reports. Service treatment records show that on June 7, 1962, the Veteran sustained a fall and hit the low back area. Approximately six days after the fall, the Veteran was admitted to the hospital for two days, and was diagnosed with a back strain and acute myositis in the low back area. A June 15, 1962, physical profile record noted the back injury and that the Veteran was qualified for duty without assignment limitations. A November 1962 service treatment record shows that the Veteran sustained a low back sprain after a motor vehicle accident. The July 1963 service separation examination report shows a normal clinical evaluation of the spine, and the concurrent report of medical history shows that the Veteran denied back symptoms, including arthritis, swollen or painful joints, and bone, joint, or other deformity, as well denied ever wearing a back brace. This evidence shows that the in-service low back injury resolved prior to service separation. A July 1992 chiropractic treatment record shows that the Veteran reported low back pain and tightness. An August 1992 chiropractic treatment record shows that the Veteran reported low back pain and tenderness after falling in a mud hole during work. An October 1992 chiropractic treatment record shows that the Veteran reported back pain, among other symptoms, after a September 1992 motor vehicle accident where his vehicle was hit head on. Chiropractic treatment records dated in November 1992 and December 1992 show continued complaints of low back pain. An August 1993 VA x-ray report noted moderately severe scoliosis with degenerative changes of the spine, especially the L3-4 disc. A December 1993 SSA decision assessed that the Veteran was disabled as of 1992 in part due to his low back disability. In an October 1994 statement, Dr. T.T., a chiropractor, stated that the Veteran presented in July 1992 with a chief complaint of low back pain, that x-rays showed scoliosis and severe degenerative joint disease of the lumbar spine, and that the Veteran's condition had deteriorated since 1992. Dr. T.T. referred to a history of a 30-foot fall in service with a PCR-R radio strapped to the Veteran's back. A September 2010 VA treatment record shows that the Veteran was seen at the emergency room and stated that he had been moving some items in his garage a few weeks earlier and had lower lumbar pain since then. The VA clinician diagnosed a lumbar strain. A March 2011 VA treatment shows that the Veteran denied back pain. The Veteran submitted a February 2012 statement by Dr. J.D. who opined, based on a review of the claims file, that it is as likely as not that the Veteran's current back pain degenerative changes are a direct result of his military service. Dr. J.D. noted that the Veteran was seen in the military for severe stabbing back pain at T12, and the impression was a muscle strain at L2-3, and was seen again on June 16, 1962 and diagnosed with myositis of the paraspinal muscles, which was treated and improved. Dr. J.D. noted the Veteran's reports that he had been receiving treatment for back pain ever since the in-service back injury. Dr. J.D. explained that on July 29, 1992, the Veteran was seen for thoracolumbar spine pain with severe degenerative disc disease causing leg pain and numbness in the lower extremities, which was reported by the examiner to be caused by a fall 30 years earlier while in the Army. Dr. J.D. further explained that in all other medical records, there has been no trauma to the Veteran's back except what happened in military service in the 1960s. The record contains a January 2011 VA opinion and a March 2012 VA addendum opinion. Because the January 2014 Board decision previously found that the above-referenced opinions are inadequate, the Board will not consider these opinions in deciding the appeal. The Veteran underwent another VA examination of the spine in October 2017. The VA examiner opined that the current lumbar spine disability was less likely than not caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran had an acute episode of back strain in service, which fully resolved without sequelae prior to service separation. The VA examiner explained that the Veteran's service treatment records documented that the Veteran fell with a large radio on his back down the side of a mountain hill, was diagnosed with lumbar strain with paraspinous muscle spasm/myositis in June 1962, and was given six days of "bed rest" on a thin mattress, and a "light duty slip" for several weeks afterwards. The VA examiner explained that there was no fracture found in the back and no surgery or further treatment was performed, and that the Veteran returned to full duty in artillery in late July/August 1962 and fulfilled his duties with no further back complaints. The VA examiner noted that the Veteran's service separation examination shows that the Veteran marked "NO" to all symptoms, to include back symptoms. The VA examiner opined that the lumbar strain fully resolved with no sequelae as noted on the Veteran's service separation examination report. The VA examiner further explained that the Veteran did indeed have a bad fall in June 1962, had no broken bones, rested for six days until the muscle spasms resolved, and had no further back strain related to this fall to include the entire year after the fall where he had duties in an artillery unit. The VA examiner also observed that the record contains no back complaints for about 30 years following the in-service back injury, and that the Veteran held several post-service job requiring a "strong back" including work at a railroad and as an auto body worker. With respect to the Veteran's back diagnosis of dextroscoliosis with multilevel severe degenerative disc disease with spinal stenosis, the October 2017 VA examiner explained that it is well noted that Veteran is 79 years old and that the spinal stenosis, dextroscoliosis, and the multilevel severe disc disease with vacuum phenomenon are extremely consistent with degenerative process of aging, and is to be expected of any patient almost to their eight decade of life. The VA examiner opined that the Veteran's spinal stenosis and dextroscoliosis are not due to trauma but to degenerative changes of aging where the spine curves right, as well as slow growth of bone within the canal (stenosis). The VA examiner explained that these two conditions are not due trauma or related causally or proximally to either the Veteran's military duties or the in-service lumbar strain/myositis. The October 2017 VA examiner also explained that if the Veteran's diagnosis of severe degenerative disc disease was related to a trauma, such as a fall, his degenerative disc disease would have very focal and isolated to one or two levels at most. However, in this Veteran's case, his spinal x-rays show degenerative disc disease of all levels, with severe disc disease and vacuum phenomenon, which means that the cushion (nucleus pulposus) has dried out, and that this is due to aging and not due to trauma. Therefore, the VA examiner concluded that the Veteran's degenerative disc disease less likely as not holds a causal or proximal relationship to a resolved back strain in 1962. In summary, the October 2017 VA examiner noted that the Veteran's records clearly show an acute back strain from a fall in June 1962, which was treated appropriately and fully resolved prior to service separation. The VA examiner explained that the Veteran's current back conditions are fully consistent with degenerative aging process. The Board finds that the evidence weighs against a finding that the Veteran's lumbar spine disability was incurred in service or otherwise related to service. As discussed above, the October 2017 VA examiner opined that the in-service back injury resolved prior to service separation, and that the current lumbar spine conditions are fully consistent with the aging process and consistent with the Veteran's age. In this regard, the Board finds that the October 2017 VA examiner's opinion is highly probative with respect to service connection for a lumbar spine disability, and is adequately based on objective findings as shown by the record, and accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran's history, and provided a thorough and adequate rationale for the opinion given. See Stegall v. West, 11 Vet. App. 268 (1998); Barr, 11 Vet. App. at 311; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While not dispositive, the post-service evidence does not reflect complaints or treatment related to the lumbar spine for at least 29 years following separation from active service. The first evidence of a complaint of hearing loss was in July 1992 when a chiropractic treatment record noted that that the Veteran complained of low back pain. The Board emphasizes that the multi-year gap between discharge from active duty service to when the Veteran sought medical care for his lumbar disability (1992) is a factor that weighs against in-service incurrence of a lumbar spine disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder.) The Board has considered and weighed the February 2012 statement by Dr. J.D., who opined that it is as likely as not that the Veteran's current back pain degenerative changes are a direct result of his military service. In reaching this opinion, Dr. J.D. relied on the October 1994 by Dr. T.T. and indicated that Dr. T.T. opined that the lumbar spine disability was caused by a fall 30 years earlier while in the Army. However, this is inaccurate because the October 1994 statement by Dr. T.T. only noted a history of the in-service fall and did not provide an opinion relating the lumbar spine disability to the in-service fall. In reaching his opinion, Dr. J.D. also explained that in all other medical records, there has been no trauma to the Veteran's back except what happened in military service in the 1960s. However, this is again inaccurate because Dr. J.D. failed to consider the August 1992 and October 1992 chiropractic treatment records showing that the Veteran had complaints of low back pain after falling in a mud hole during work in August 1992, and after being involved in a motor vehicle accident in September 1992. Dr. J.D. also did not consider the September 2010 VA treatment record showing that the Veteran complained of low back pain after lifting heavy objects. Therefore, the Board finds that the February 2012 VA opinion is of no probative value because it is based on an inaccurate factual premise that the October 1994 statement by Dr. T.T. related the Veteran's lumbar spine disability to service, and an inaccurate premise of no trauma to the Veteran's back except the in-service back injury. See Reonal, 5 Vet. App. at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Based on the foregoing, the Board finds that the October 2017 VA opinion significantly outweighs the February 2012 opinion by Dr. J.D, and strongly supports a finding that the current lumbar spine disability is not related to service. Finally, as the Veteran's lumbar spine arthritis has not been shown to have manifested within one year of service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran's lumbar spine disability is related to service or manifested within one year of separation. Accordingly, service connection for a lumbar spine disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs