Citation Nr: 1805667 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-13 844A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a chronic low back disorder. 2. Entitlement to service connection for sciatica. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to December 1986. He had service with the Army National Guard from September 1985 to September 2005, including periods of active duty for training (ACDUTRA) in August 1990 and March 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In April 2017, the Board remanded the appeal to afford the Veteran a Video Conference Board hearing, which was held before the undersigned Veterans Law Judge in June 2017. A transcript of that hearing is of record. FINDINGS OF FACT 1. A chronic low back disorder was not shown in service or within a year of service discharge; and, the Veteran's diagnosed anterior spurring at L3-4 and sacralization at L5 is not otherwise shown to be etiologically related to the Veteran's active duty service, including periods of ACDUTRA. 2. A chronic neurological disorder of the lower extremities was not shown in service or within a year of service discharge; and, the Veteran's diagnosed sciatica is not otherwise shown to be etiologically related to the Veteran's active duty service, including periods of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, claimed as anterior spurring at L3-4 and sacralization at L5, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.159 (2017). 2. The criteria for service connection for sciatica have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the merits of the claims. The Board must consider the competency, credibility, and weight of all evidence-to include medical evidence-to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to a veteran. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. A veteran will prevail if the evidence weighs in his favor or is in equipoise. The Board will deny a claim if the preponderance of the evidence is against a veteran's claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). I. Duties to Notify and Assist The low back matter was Remanded in June 2014 for the purpose of securing identified private medical records, affording the Veteran a VA examination, and obtaining a medical opinion with respect to that examination. The identified treatment records have been obtained and a VA examination was conducted in July 2015 with a corresponding report. The June 2014 Remand also order that the RO provide the Veteran a statement of the case on the issue of entitlement to service connection for sciatica. The RO issued a statement of the case in November 2015, and the Veteran perfected his appeal in December 2015. The purpose of the April 2017 Remand was to schedule the Veteran for a personal hearing before the Board, which was accomplished in June 2017. Accordingly, the Board finds that there was substantial compliance with the directives of both remands. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008)); Dyment v. West, 13 Vet. App. 141 (1999). Neither the Veteran nor his representative has raised any other 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). II. Laws and Regulations Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017). Generally, to establish service connection, the evidence must show (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 current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty and any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C. § 101(21), (24)(A)-(B); 38 C.F.R. § 3.6(a) (2017). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while serving on ACDUTRA. National Guard service generally includes periods of ACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6 (c). A veteran is presumed to be in sound condition when entering active service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-03 (2003). To rebut this presumption, VA must show by clear and unmistakable evidence both that the injury or disease in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-03; see Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The presumption of soundness does not apply to periods of ACUDTRA unless a veteran is examined upon entry to that period of service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Generally, a presumption of aggravation applies if there is an increase in a preexisting disability during active service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Rather than being automatic, the presumption is triggered where the Veteran shows "permanent worsening of a preexisting condition during the relevant period of service." Hill v. McDonald, 28 Vet. App. 243, 252-53. If the presumption of aggravation is triggered, then the burden reverts back to VA to show by clear and unmistakable evidence that the preexisting condition was not aggravated by the period of service, and that the increase was due to the natural progress of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of aggravation does not apply to periods of ACDUTRA, 38 U.S.C. § 101(24)(B); Smith v. Shinseki, 24 Vet. App. at 48, unless the Veteran had already met the requirements for turning that period of ACDUTRA into full "active service" under 38 U.S.C. § 101(24). See Hill, 28 Vet. App. at 250-52. Stated differently, the presumption of aggravation applies to a period of ACDUTRA that constitutes "active service" under 38 U.S.C. § 101(24) where a veteran is already service connected for a different and wholly separate disability that was incurred during that period of ACDUTRA. See id. at 252. III. Analysis The Veteran contends that his lumbosacral disorder and sciatica are attributed to episodes of leg pain while he was on active duty in 1986 and an August 1990 period of ACDUTRA. The Veteran's other, and principle, contention is that a motor vehicle accident during a March 2002 period of ACDUTRA aggravated his lumbosacral disorder and sciatica. As discussed below, the Board finds that service connection for the Veteran's lumbosacral disorder and sciatica are not warranted because there is no nexus between those disorders and his active service and periods of ACDUTRA. The Veteran's service treatment records for his period of active duty were silent for injuries or diseases of the back. In February 1986, the Veteran was treated for bilateral leg pain, tingling, and numbness, and received a diagnosis for shin splints. According to an April 2010 statement from the Veteran and a May 2008 statement from his spouse, the Veteran reported a similar episode in July 1986, though it is not documented in the service treatment records. Historically, the Veteran stated that he remembered back pain associated with these incidents; however, in April 2010, the Veteran stated that he re-read his medical records during the pendency of this appeal and understood that the 1986 episodes actually involved leg pain rather than back pain. In May 2008, the Veteran's spouse reported an occurrence in August 1990 where the Veteran sought medical care from San Joaquin County General Hospital for an episode of low back pain and difficultly walking upon returning from an annual training period in Europe. According to the spouse's statement, the Veteran reported symptoms at that time that were similar to those he reported in 1986. San Joaquin County General Hospital did not respond to VA's requests for the Veteran's records, and the Veteran reported in February 2009 that the records have been purged. The Veteran reported that the August 1990 event was the onset of his back problems while receiving medical care in January 2005. According to a May 2008 statement from the Veteran's spouse, the Veteran sought chiropractic care starting in the early 1990s. Private treatment records show treatment and periodic spinal adjustments since at least October 2000 when the Veteran reported gradual onset of low back pain. He was subsequently diagnosed with lumbar segmental dysfunction in December 2000. None of the records from the early 2000s make reference to a back injury and/or the Veteran's period of active duty. That said, records from 2005 note that the Veteran provided an approximate history of 15-years with respect to him having problems with back pain, which would be 1990. The Veteran testified in a June 2017 hearing before the undersigned Veterans Law Judge that his symptoms worsened in March 2002 following a motor vehicle accident that occurred during a period of ACDUTRA. The Veteran has submitted lay statements from two members of his former unit and a photograph that collectively corroborate the Veteran's statements regarding the occurrence of the motor vehicle accident in March 2002, and the Board concludes that the event happened as reported. To the extent that the Veteran sought medical attention immediately after that accident, it was not documented in his service and private treatment records. That said, there is evidence Veteran received a radiograph examination of his cervical and lumbar spine in March 2002. Those radiographs "failed to demonstrate any significant osseous, articular or joint abnormalities." In early May 2005, the Veteran sought medical treatment for low back pain, and the private provider diagnosed him with a lumbosacral strain and sciatica. The Veteran also participated in physical therapy from April 2005 to August 2005 after aggravating his back while mowing his lawn. In March 2006, the Veteran received a radiological examination of his lumber spine following a physical examination in February 2006. That examination showed partial sacralization of L5, mild anterior spurring of L3-L4, and no acute abnormality of the lumbar spine. The radiologist reported to the Veteran that the lumbar spine x-rays did "not show any acute abnormalities." The first two elements of service connection under Shedden are met here. See 381 F.3d at 1166-67. The Veteran has a current lumbosacral disorder, diagnosed as anterior spurring at L3-4 and sacralization at L5, and sciatica. The Veteran has also identified three events as purported causes for his lumbosacral disorder and sciatica: (1) two episodes in 1986 of leg pain, tingling, and loss of motion diagnosed as shin splint during active service, (2) an episode of similar symptoms in 1990 during a period of ACDUTRA, and (3) a March 2002 motor vehicle accident during a period of ACDUTRA. Entitlement to service connection therefore turns on whether there is a causal nexus between the Veteran's lumbosacral disorder and sciatica, and the events during the Veteran's active service and periods of ACDUTRA. As an initial matter, the Board concludes that the presumptions of soundness and aggravation do not apply to the Veteran's August 1990 and March 2002 periods of ACDUTRA. He was not examined prior to entry, thus the presumption of soundness does not apply. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Smith v. Shinseki, 24 Vet. App. at 48. Moreover, the Veteran is not already service connected for independent, wholly separate disabilities that have already converted the August 1990 or March 2002 periods of ACDUTRA into active service for purposes of the presumption of aggravation. See 38 U.S.C. § 101(24)(B)-(C); 38 U.S.C. § 101(24)(B)-(C); Hill, 28 Vet. App. at 250-52. A February 2009 positive nexus opinion from the Veteran's chiropractor is of record. The chiropractor opined that the Veteran's "chronic degenerative joint disease" in his spine had a "strong correlation" to the "multiple injuries" the Veteran suffered "over the years while working for the Army National Guard." Even though the opinion from the Veteran's chiropractor constitutes the most favorable evidence in support of the Veteran's claims for service connection, the Board assigns it little probative weight. First, the chiropractor's opinion relies on the Veteran's reports of history in service, and there is no indication that the chiropractor reviewed the Veteran's service treatment records or military personnel records to identify specific injuries or events upon which to base his opinion. Such is not a fatal flaw. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). However, in this particular case, there is a complete absence of any documented complaint of low back pain or injury during the Veteran's active service or during a period of ACDUTRA. To the contrary, and as discussed above, there is evidence suggesting that the onset of the Veteran's occurred in 1990, and that records from 2000 make no reference a history of injury. Second, the opinion is conclusory and does not include a rationale for the chiropractor's opinion that links the Veteran's lumbosacral disorder and sciatica to the purported injuries. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision."). the opinion is vague and points to no specific event. The VA examiner concluded in his July 2015 report that the Veteran's 1986 acute shin splint condition; the performance of his military duties; and the March 2002 motor vehicle accident were less likely than not responsible for or the cause of the subsequent development of the Veteran's lumbosacral disorder or sciatica. The VA examiner reasoned that the Veteran's service treatment records did not show any evidence of a low back condition while the Veteran was on active service. Further, the VA examiner concluded that those events were less likely than not responsible for or the cause of aggravation to the Veteran's lumbosacral disorder or sciatica. In support of his conclusion, the VA examiner noted the Veteran's limited military service following the diagnoses for back sprain in 2000, the spurring in his lumbar spine in 2006, sacralization at L5 in 2006, and sciatica in the mid-2000s. The VA examiner further noted there were no treatment records-e.g., examinations, descriptions of the injuries suffered, x-rays, imaging studies, or treatment notes-following the March 2002 motor vehicle accident, and the photograph taken immediately afterwards only showed a right flank bruise. The Board finds that the VA examiner's opinion is highly probative and significantly outweighs the opinion from the Veteran's chiropractor. The VA examiner physically examined the Veteran and conducted a thorough review of the Veteran's claims file to include his service, VA medical center, and private treatment records. The Veteran addressed the specific events the Veteran had identified in his lay statements to assess whether they may have caused or aggravated the Veteran's lumbosacral disorder and/or sciatica. The VA examiner also consulted medical literature to assess whether the Veteran's L5 sacralization caused low back pain. Based on his thorough review, the VA examiner concluded that the Veteran's lumbosacral disorder and sciatica were not causally related to or aggravated by specific events during the Veteran's active service in 1986, his 20-year military career, or his 2002 period of ACDUTRA. Because the VA examiner more directly applied his medical knowledge to the facts of the Veteran's case, his opinion is entitled to greater probative weight than the opinion of the Veteran's chiropractor. See Nieves-Rodriguez, 22 Vet. App. at 302 (adopting as a guiding factor the requirement that "the expert witness has applied the principles and methods reliably to the facts of the case"). The Board has also considered the Veteran's lay statements. While competent to report certain injuries or the general nature of his occupational activities, the Veteran is no competent to render a medical opinion relating his current disabilities to those events. Simply put, the Veteran is not a medical professional capable of identifying the etiology of orthopedic or neurological conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Likewise, the Board has considered the statements of the Veteran's spouse and concludes that they are credible and competent as to what the Veteran said about his symptoms in 1986 and 1990. However, they are not competent evidence of a nexus because the Veteran's spouse is a lay person who is not competent to opine on any etiological relationship between those events and the Veteran's current lumbosacral disability and sciatica. See id. Moreover, the VA examiner considered those lay statements and concluded that there is no evidence regarding how the Veteran's duties over the course of his "20 year military career" might have contributed to the lumbosacral disorder or sciatica. The VA examiner noted further that back strains and mild degenerative spurring at L3-4 do not require a history of trauma but are instead associated with aging. With respect to his statements regarding the March 2002 motor vehicle accident, the Veteran's statements are credible and competent as to the occurrence of that event. They are also competent to the extent those statements report the Veteran's pain and the wounds he received from that accident. However, the Veteran's statements are not competent insofar as they contend that there is a causal nexus between the March 2002 motor vehicle accident and the Veteran's lumbosacral disability and sciatica. See Jandreau, 492 F.3d at 1376-77. Here again, the VA examiner considered the Veteran's lay statements that the March 2002 motor vehicle accident aggravated his lumbosacral disorder and sciatica, but concluded that there was no evidence to support a nexus between the March 2002 accident and those disorders. The VA examiner rationalized that opinion against the Veteran's private treatment records, noting that a radiological examination in March 2002 showed the Veteran's spine was normal, and the spurring at L3-4 and partial sacralization of L5 were not identified by x-ray until 2006. The VA examiner opined that the spurring was not a significant acute finding in March 2006 based on correspondence from the radiologist to the Veteran, and he identified medical literature showing sacralization is not associated with low back pain. The VA examiner also rationalized his opinion against the March 2002 photograph. He found that the photo showed a right flank bruise, but it was otherwise insufficient to conclude that there was a causal nexus between the motor vehicle accident and the Veteran's disabilities. In reaching this conclusion, the Board has also considered the two statements from the former members of the Veteran's Army National Guard unit with whom he served on ACDUTRA in March 2002. The Board finds the statements competent, credible, and probative as to the occurrence of the March 2002 motor vehicle accident. The occurrence of that accident is not disputed, however, and those statements are silent on the dispositive issue of whether that accident caused or aggravated the Veteran's lumbosacral disorder or his sciatica. Based on the foregoing, the claims of entitlement to service connection for a lumbosacral disorder and sciatica are denied. The preponderance of the evidence is against the Veteran's claims, thus the benefit-of-the-doubt rule is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a low back disorder, claimed as anterior spurring at L3-L4 and sacralization at L5, is denied. Entitlement to service connection for sciatica is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs