Citation Nr: 1804378 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-45 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for lower back disability. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1973, and from August 1973 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter was previously remanded by the Board in October 2013 and September 2017. The Board notes that the Veteran had a hearing scheduled in reference to this claim on November 7, 2017. However, the Veteran, through his representative, withdrew his hearing request. Therefore, this claim is now properly before the Board. The Board also notes the Veteran's attempt to raise the issue of an earlier effective date for a total disability rating based on individual unemployability (TDIU) in his representative's April 2016 and January 2017 letters. However, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). FINDING OF FACT The more probative evidence fails to demonstrate that the Veteran's lower back disability is related to his military service. CONCLUSION OF LAW The criteria for the establishment of service connection for a lower back disability are not met. 38 U.S.C. §§ 1101, 1110, 1134(a), 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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). Merits of the Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (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). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2017). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he has a current diagnosis of the low back that is etiologically related to service. In regards to the requirement of a current diagnosis, the Veteran underwent a VA examination in May 2016 in which he was diagnosed with spondylosis, degenerative disc disease (DDD), and spinal stenosis. As such, the Veteran has satisfied the requirement for a current disability. In regards to the requirement for an in service incurrence and a nexus between the claimed in-service disease or injury and the present disease or injury, the Veteran's July 1973 and August 1973 enlistment medical examinations are silent for any complaints of lower back pain, or any diagnosis thereof. A review of the Veteran's service treatment records shows that he complained of lower back pain in September 1973, while in active service. The Veteran reported to the medical staff that his rifle kept hitting his back when he was running, causing him lower back pain. The physical examination revealed an edema to the right-mid back. The Veteran was treated with hot soaks, aspirin, and balm. The service medical records reflect another complaint of lower back pain in November 1973. The physical examination did not show swelling or edema and no loss of motion, but the Veteran's back muscles appeared tight. He was, once again, prescribed balm and hot soaks. The Veteran was released from service in February 1974 due to left femur stress fracture. No exit examination exists, so it cannot be ascertained whether the Veteran experienced any lower back issues when he exited service. In January 1976, the Veteran reported to the VAMC, stating that his lower back had been giving him trouble for three days. The doctor noted that the Veteran had no known [back] injury, except for the sprain in service. The doctor diagnosed the Veteran with back strain, and prescribed massages, heat, and medication. A January 2000 VA treatment record notes that the Veteran reported chronic lower back pain since the 1960s. Additional VA treatment records from 2002 to 2005 indicate treatment for low back pain. In a March 2005 treatment note, the Veteran reported worsening back pain, which he attributed to weight gain. A January 2006 bone scan revealed mild degenerative changes in the lower lumbar spine. A July 2008 MRI demonstrated mildly compressive disc bulging at L3-L4 and L4-L5, superimposed on narrow sagittal dimension of the thecal sac, mild facet arthropathy, and epidural lipomatosis changes. The Veteran was evaluated in November 2008 by Interventional Pain Management with a diagnosis of lumbar spondylosis. He received lumbar epidural steroid injections at the clinic during 2009. In October 2009, the Veteran underwent a VA examination to determine the nature and etiology of his lower back disability. The Veteran reported having episodes of low back pain intermittently while in service, though there was no known injury or trauma. He further reported that since service, back pain has been episodic, but has worsened over the last several years. The examiner assessed the Veteran with multi-level mid and lower lumbar spondylosis, with mild interval worsening at the L4-L5 level, and opined that it was less likely as not related to his active service complaints. However, the examiner generally based her opinion on the absence of back treatment in the medical records, and did not address the Veteran's statements regarding the onset and continuity of his symptoms. The Veteran underwent another VA examination in May 2016, during which, as noted above, he was diagnosed with spondylosis, DDD, and spinal stenosis. The Veteran described his back pain as constant and throbbing. Examination revealed a loss of range of motion of the spine. The Veteran was noted to walk with a cane for his back and knee conditions at all times. Imaging studies revealed arthritis in the spine. The examiner concluded that the Veteran's lower back disability is less likely as not related to service. The examiner noted that the Veteran was treated twice in service for his back, in September and October 1973, but after separation from service, he was not seen for back pain until January 1976, nearly two years after separation. Afterward, the Veteran was not treated again until January 2000, nearly 26 years after separation. However, the examiner offered no opinion as to secondary service connection or aggravation. In a June 2016 VA addendum opinion, the VA examiner opined that the Veteran's condition of lumbar spondylosis with DDD, lumbar spinal stenosis, and spondylolisthesis, is less likely than not caused by or related to his service-connected disabilities of bilateral total knee replacements and stress fracture residuals of the left femur. The examiner stated that the weight of the medical literature fails to support the contention that the Veteran's service-connected conditions could cause the later development of lumbar spondylosis with DDD, lumbar spinal stenosis, and spondylolisthesis. Rather the examiner opined that the Veteran's lower back condition is more likely than not due to the usual multifactorial risk factors, including age, overused joints, injury or trauma to bones and joints, obesity, genetics, lifestyle and occupational factors. Additionally, the examiner noted that medical literature supports that it is less likely than not for a pathological process in one joint to cause pathology in other joints when there is not the required nexus of at least a five-centimeter leg length discrepancy. In a November 2017 statement, the Veteran's representative indicated his belief that no medical opinion has been issued as to whether the Veteran's low back disability has been aggravated by his service-connected conditions, specifically his knee disabilities. The Board disagrees with the contention. While the June 2016 VA examination did not offer a specific opinion as to whether the Veteran's service-connected disabilities "aggravate" his low back disability, a reasonable inference can be drawn from the language of the examiner. As detailed above, the June 2016 VA examiner opined that the low back condition is not etiologically related to service, and that medical evidence does not suggest that the Veteran's low back condition could have developed as a result of his service-connected conditions. Additionally, the examiner offered a more likely etiology for the low back condition. The Board therefore finds this opinion to be adequate. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that an examination report "must be read as a whole"). The Board finds the opinions of the October 2009, May 2016, and June 2016 VA examiners to be highly probative, as they contain clear conclusions with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the Veteran's own reports that his low back condition is related to his reported in-service incidents. The Veteran is competent to report regarding the symptoms he experienced during and post service; however, the opinion as to the etiology of his current low back condition goes beyond the knowledge of a lay individual. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d at 1377. Accordingly, the Board finds that the VA medical examinations to be highly probative evidence with respect to the etiology of the Veteran's low back disability. Based upon this evidence the Board finds that the Veteran's low back disability is not related to his military service. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for a lower back disability is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs