Citation Nr: 1802475	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-38 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for back disorder to include lumbar spondylosis L2, L3.


REPRESENTATION

The Veteran represented by:  Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Franke, Associate Counsel

INTRODUCTION

The Veteran had active service in the United States Army from May 1971 to May 1994, with service in the Republic of Vietnam.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in St. Petersburg, Florida.

In May 2015, the Veteran testified before the undersigned at a Board videoconference hearing.  A transcript of the hearing has been associated with the claims file.  The Veterans Law Judge who conducted that hearing is no longer at the Board.  The Veteran was offered an opportunity for an additional hearing but did not indicate a desire for an additional hearing.  The case is before the Board for additional review at this time.

In a July 2015 decision, the Board reopened the claim based on the submission of new and material evidence and remanded the case for further evidentiary development.  The Board again remanded in December 2016 for development.  The matter is once more before the Board.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files.  


FINDING OF FACT

A back disorder to include lumbar spondylosis (L2. L3) was not noted in service, was not treated as such immediately thereafter, is not the result of any event in the Veteran's period of active military service, and arthritis was not shown within one year of separation from service.


CONCLUSION OF LAW

A back disorder to include lumbar spondylosis (L2. L3) was not incurred in or caused by active military service, nor may degenerative changes (arthritis) be presumed to have been so incurred.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 	

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions.  In addition, the Board is satisfied that VA has substantially complied with the directives of the Board's previous remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

The Veteran was afforded a Compensation and Pension examination in December 2015, with a subsequent review and addendum opinion produced in January 2017, as directed by the Board's December 2016 Remand.  Both resulted in opinions pertinent to deciding the claim for entitlement to service connection.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds the reviews and opinions adequate for their purposes and 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 duty to assist argument).

Service Connection 

Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may 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).  Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017).  That period of time is usually one year.  38 C.F.R. § 3.307 (a)(3).  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.  38 C.F.R. § 3.303 (b).  

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b).

Lay Evidence 
 
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran's Assertions

The Veteran contends that his current back disorder is directly related to in-service injuries, to include a combat event in which he was thrown from or inside a truck and a later strain upon lifting.  He further contends that the in-service diagnosis of back strain was a misdiagnosis.  The Veteran asserts that the March 2009 MRI findings and the opinion of Dr. C.A.G. based on those findings support that his back disorder has its origin in trauma, not degeneration.  He further asserts that VA has not performed an x-ray or MRI on him and has never accepted or reviewed the March 2009 and other MRI results.

Back Disorder to Include Lumbar Spondylosis L2, L3

The Veteran's service treatment records (STRs) include his May 1971 pre-enlistment examination, in which the clinical evaluation category of "spine, other musculoskeletal" was marked as "NORMAL" In an October 1975 annual examination, once again, "this category was marked as "NORMAL."   

A December 1979 security assurance examination had "NO" checked for whether the Veteran currently has or ever had recurrent back pain, as well as in answer to having been refused employment for the inability to perform certain motions or assume certain positions.  "Spine, other musculoskeletal" were marked as "NORMAL."   

August 1983 notes mention the Veteran's complaints of lower back pains for one day, but also state there is no injury to the back.  Additionally, the notes state that the Veteran has a history of low back pain and the pains are mostly at the ilium.  The assessment stated bilateral sacroiliac strain.

In the September 1983 annual physical examination for continued active duty, "Spine, other musculoskeletal" were marked as "NORMAL" and the answer was still "NO" regarding any inability to perform certain motions or assume certain positions.  However, current or past recurrent back pain" was marked as "YES" and the examiner noted a history low back pain, as well as back pain from August 1983 again noted as sacroiliac strain.  

In January 1989, the Veteran presented for low back pain after having felt pain for one day upon lifting 20 pounds.  Pain upon palpation was detected, as was pain in range of motion maneuvers, particularly right and left rotation.  The examiner's impression was muscle sprain and the Veteran was prescribed medication and warm soaks.

The Veteran's May 1989 "Over 40" examination had "NORMAL" marked for "Spine, other musculoskeletal" and in his January 1990 examination, also for being "Over 40," current or past recurrent back pain was again marked as "NO."   

The Veteran's October 1993 retirement examination had "NORMAL" marked for "Spine, other musculoskeletal," but marked "YES" for current or past recurrent back pain and noted "[b]ack problem from the past."  "NO" was entered as to having been refused employment for the inability to perform certain motions or assume certain positions.  The examiner noted low back pain as sacroiliac strain, but also noted that was in August 1983.

Approximately seven years after separation from service, a May 2001 radiologist's report noted the Veteran's history of low back injury in 1988-89 and his report of bilateral L5-S1 discomfort.  X-rays revealed minimal degenerative changes of the lumbar spine.  

At an August 2003 physical therapy consultation, the provider noted that the Veteran reported that his back has been bothering him for the past four years and was getting worse; and the pain specifically increases with exercise.  Upon examination, the provider found the lumbosacral region to be nontender; no muscle spasms; no scoliosis; active movements were within normal limits; slow movements were without pain; and no sensorimotor deficit.  He assessed the Veteran with chronic low back pain.  

In March 2006, the Veteran presented for low back pain in the previous three months, he reported improvement and he was assessed with lumbago. 

In an October 2007 examination, physical examination findings indicated that the Veteran's thoracolumbar spine and lumbosacral spine showed no abnormalities, but there was tenderness over the upper and lower thoracic spinous processes.  Radiological findings showed only focal degenerative changes at L3.  

November 2007 spinal tests at Southern Orthopedics Specialists showed sacroiliac dysfunction, as well as tenderness at the lower lumbar spine.  A November 2007 MRI of the Veteran spine revealed only degenerative disc changes at L2-3, with degenerative disc signal.  Remaining discs had normal signal and morphology for an otherwise normal examination and unremarkable lumbar spine.   

March 2008 x-rays at Southern Orthopedics Specialists showed mild decreased disk space at L2-3, with slight anterior osteophytes noted at the L4-5 level and mild facet hypertrophy.  An April 2008 physical examination conducted under the supervision of Dr. C.A.G. showed lumbar spondylosis and intermittent lower extremity radiculopathy.  The Veteran declined epidural and facet injections.

A May 2008 Physical Residual Functional Capacity Assessment for social security benefits identified the severity of the Veteran symptoms as including degenerative arthritic findings in his low back.

A December 2008 VA examination at Biloxi VA included findings for the Veteran's back, revealing no obvious abnormalities.  Lower lumbar tenderness was noted, but pain on motion was noted only at the very end of the ranges of motion in each maneuver.  The Veteran was diagnosed with lumbar strain, resolved, no residuals.  He was also diagnosed with lumbar spondylosis, L2-3.  "Natural progression of aging.  Less likely than not caused by or a result of active military service."

In a January 2009 Disability Determination examination in conjunction with the Veteran's application for Social Security benefits, the examiner opined that the Veteran has several severe medical problems, the most important of which is his back.  

March 2009 MRI findings at Southern Orthopedics Specialists showed osseous structures; anatomic alignment of the lumbar spine; moderate degenerative changes bordering the L2-3 disc space, with sclerotic changes and subchondral cysts and modic type I changes involving the inferior endplate of L2 and the superior end of L3; no bone edema or compression deformities; mild bilateral facet arthropathy at the L4-5, L304 and L2-3 levels.  The impression was stated as right paracentral disc disease L2-3 level, left paracentral disc disease L3-4 level; no spinal or foraminal stenosts apparent; and lower lumbar facet arthropathy.  Dr. C.A.G. observed that the Veteran's complaint of degenerative changes in the low back are as likely as not related to his complaints in the military; however, "we will leave this to the VA to determine the relationship and causality."

Nonetheless, Dr. C.A.G. opined that the Veteran's L2-3 degenerative changes are most likely a post-traumatic-type event and they are not consistent with normal degenerative wear and tear at the L4-5 and L5-S1 levels.  He explained that, upon review of the March 2009 MRI report above, it shows orthopedic rather than significant degenerative changes about the L2-3 disk space, right greater than left, without significant neural forammal stenosis.  He added that cystic changes in the end plates are consistent with post-traumatic etiology; mild facet hypertrophy is noted at L4-5 and L5-S1 with slight triangulation configuration of the thecal sac at those levels; and no other fractures or dislocations are indicated.

A February 2010 MRI revealed L2-3 severe disc degeneration and L3-4 mild disc degeneration.  February 2011 progress notes at Panama City Beach VA noted that recent x-rays showed progressive narrowing of the L2-3 the disc space. Therapy continued at Pensacola VA throughout 2011 and 2012, in which the Veteran's diagnosis was stated as displacement of lumbar intervertebral disc without myelopathy.

In a December 2015 review of the Veteran's claims file, the VA examiner opined that the Veteran's acknowledged disorder was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  He explained that, as per medical literature, spondylosis is the inevitable consequence of aging regardless of race, profession, military service, or trauma history.  He added that the 1989 strain was not serious enough to result in the development of degenerative disc disease and arthritis and medical literature indicates that traumatic arthritis will be established within two years of a traumatic incident.  

In addressing Dr. C.A.G.'s March 2009 opinion, he stated that his opinion lacks of any medical literature support and "although full of advocacy, it is [ ] mere speculation as per current medical literature."  

However, as stated earlier in this decision, because the December 2015 VA examiner failed to address in-service and pre-2007 treatment notes, the Board remanded in December 2016 for an addendum opinion.

A January 2017 VA examiner reviewed the record and opined that it is less likely as not that the Veteran's lumbar spondylosis is caused by or a result of his active service.  She explained that the Veteran's STRs are silent for this condition.  She added that an initial episode of back pain is not necessarily related to the later chronic condition, because, as in the Veteran's case, while back sprain or strain during service involves the muscles and ligaments (soft tissues) of the spinal region, spondylosis is a degenerative process involving the discs and vertebral bodies and therefore the one is not the cause of, or related to the other.  The January 2017 VA examiner further stated that individuals often remember an initial episode, which they believe to be the beginning of their back condition, despite the lack of a medical nexus.  She added that the Veteran's back strains that occurred during service were not severe injuries which resulted in the development of subsequent degenerative disc disease and arthritis today.  

In addition, the January 2017 VA examiner cited medical articles and studies, which demonstrated degenerative disc disease as a result of work-related "cumulative trauma" to be a "myth" and accounted for three percent or less of conditions.  Other studies indicated that genetic disposition and sex, as well as body weight in comparison to disc size, were predominant predictors of degenerative disc disease and the percentage of disc degeneration correlated directly to the age of subjects. 
 
In addressing the Veteran's reports of back pain, the January 2017 VA examiner acknowledged that the Veteran is competent to report back pain, but added that causes can be multiple or even multifactorial; back pain does not provide a diagnosis, etiology or nexus; and the Veteran is not qualified to diagnose medical conditions or discuss a medical nexus.

In looking to the record prior to 2007, the January 2017 VA examiner noted that the etiology of the Veteran's back pain while on active duty is documented as back strains; the after-service record from August 2003 shows the Veteran reporting that his back was bothering him for four years; and he was diagnosed with lumbar degenerative disease in 2001, which would explain his back pain.  She re-stated her conclusion above, that the Veteran's sprain or strain of the back during service involves the muscles and ligaments of the spinal region, the condition diagnosed in 2001 is a degenerative process involving the vertebral bodies and the one is not the cause of, or related to the other.

The Veteran's Arguments

The Veteran contends that his back disorder is not age-related, as stated in the December 2008 and January 2017 VA opinions, and relies on the March 2009 opinion of Dr. C.A.G., in which Dr. C.A.G. states that the changes to the discs are not consistent with degenerative "wear and tear;" the MRI findings show that the changes are more orthopedic in nature than degenerative at the L2-3 disc levels; and the findings further indicate that the cystic changes in the end plates are consistent with post-traumatic etiology  

Although Dr. C.A.G. repeatedly referred to the MRI findings in a general way and found them "consistent" with trauma or not "consistent" with degeneration, but he did not make any references to the findings which would document the specific back trauma which might have caused the L2-3 changes.  Furthermore, he does not address any specific event in service which supports his conclusion.  The Veteran has variously asserted in his October 2015 correspondence and his statement accompanying his June 2009 Notice of Disagreement that when the truck he was in was nearly struck by a mortar and went into a ditch, he was either blown out of it or fell out of it and this caused a back injury.   

However, as stated above, the Veteran's October 1993 retirement examination had "NORMAL" marked for "Spine, other musculoskeletal," giving no indication of back trauma.  Although the examination notes also marked "YES" for current or past recurrent back pain, it only referred to a "[b]ack problem from the past" and the examiner noted an August 1983 sacroiliac strain, well after combat engagements were concluded in Vietnam.  The foregoing does not indicate current effects of trauma near the Veteran's separation from service.

Yet, the Veteran also asserts that he suffered a lifting injury in January1989, which also provides the explanation for the origin of his current disorder.  However, the January 2017 VA examiner stated that the Veteran's disorder is lumbar spondylosis; his STRs are silent for this specific disorder; back sprain and back strain, recounted by the Veteran, involve soft-tissue muscles and ligaments, not discs and vertebral bodies; they are not related to each other; and sprain and strain cannot be the cause of his degenerative disc disease and arthritis.  As set forth above, the January 2017 VA examiner made reference to several studies and articles supporting her opinion.  

The Board cannot render its own independent medical judgments; it does not have the expertise.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record.  In the absence of explicit indications in the contemporaneous evidence of a nexus to service, it must rely on medical findings and opinions to establish service connection with a current disability.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  For the reasons stated above, Dr. C.A.G.'s March 2009 opinion is assigned limited probative weight and the opinion of the January 2017 VA examiner receives significant probative weight.

The Board further notes that, as indicated by May 2008 Residual Functional Capacity Assessment and the January 2017 VA examiner's findings, the Veteran has indications of arthritis, associated with his back disorder.  Arthritis is classified as a chronic disease under 38 C.F.R. § 3.309 (a) and, as stated earlier in this decision, as a chronic disease it will be presumed service connected if manifest to a compensable degree within one year of separation from service.  38 C.F.R. § 3.307 (a)(3).  See also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  Moreover, as stated earlier in this decision, an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology.  38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Although back sprain/strain was noted in service, after separation from service in August 1994 the record contains no history of treatment following upon separation until August 2003, when the Veteran presented for a physical therapy consultation and reported that his back has been bothering him for the past four years.  However, as the January VA examiner noted, this suggests that the Veteran's back disorder did not present problems until sometime in 1999, approximately five years after separation from service.  Prior to that, the record presents no evidence of a chronic back condition from which service connection can be presumed or a continuity of symptomatology by which a nexus between the Veteran's current lumbar spondylosis and an event, injury or illness in service can be established.

Conclusion

The Board has carefully reviewed and considered the Veteran's May 2015 Board hearing testimony, as well as his statement accompanying his June 2009 Notice of Disagreement, his statement accompanying his June 2010 VA Appeals Form 9 and his October 2015 Correspondence.  All of these have assisted the Board in understanding better the nature and development of the Veteran's disability.  

As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility.  However, the Board must emphasize that he is not competent to diagnose or interpret accurately findings pertaining to the Veteran's back disorder or its relation to service, as this requires highly specialized knowledge and training.  38 C.F.R. § 3.159 (a)(1).  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

For the reasons stated and based on the opinion of the January 2017 VA examiner, the Board finds the record does not contain competent medical findings, an adequate opinion or a supporting rationale which establish a nexus between the Veteran's current back disorder and an in-service event, injury or illness and, therefore, service connection cannot be established.  

The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence.  The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

ORDER

Entitlement to service connection for back disorder to include lumbar spondylosis L2, L3 is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs