Citation Nr: 1805672 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-39 464 ) 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 disorder with associated nerve impairment. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to April 1967. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In April 2011, the Veteran was afforded a hearing before a Veterans Law Judge sitting at the RO. A hearing transcript is associated with the record. In August 2011 and March 2014, the Board remanded the matter for evidentiary development In a June 2015 decision, the Board denied service connection for a low back disability with associated nerve impairment. The Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court). In August 2016, the Court granted a Joint Motion for Remand, vacated the June 2015 Board decision, and remanded the matter to the Board for readjudication. In an October 2016 letter, the Board advised the Veteran that the Veterans Law Judge who had conducted his April 2011 Board hearing was no longer at the Board and he, therefore, had a right to an additional hearing before a different Veterans Law Judge. In November 2016, the Veteran indicated that he did not want an additional Board hearing. In January 2017, the Board remanded the matter for further evidentiary development in compliance with the Court's August 2016 Order. In October 2017, the Board solicited a medical expert opinion from a VA neurosurgeon in connection with the appeal. See VHA Directive 1602, dated February 19, 2016; 38 U.S.C. §§ 5103A, 7109 (2012); 38 C.F.R. § 20.901 (2017). That opinion was received in November 2017. In December 2017, a copy of the medical opinion was provided to the Veteran, and he was offered the opportunity to present additional evidence or argument in accordance with 38 C.F.R. § 20.903 (2017). In January 2018, the Veteran's representative responded with additional argument in support of the appeal. FINDINGS OF FACT The Veteran's current low back disability did not have its onset during active service, arthritis was not manifest to a compensable degree within one year of separation, and the most probative evidence establishes that the Veteran's current low back disability is not otherwise causally related to his active service or any incident therein. CONCLUSION OF LAW A low back disorder with associated nerve impairment was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In January 2018 written arguments, the Veteran's representative argued that the November 2017 VHA opinion obtained by the Board was inadequate because the sole basis for the VA neurologist's unfavorable opinion was the fact that there is no documentation in the record of ongoing back complaints since service now reported by the Veteran. The Board has carefully reviewed the November 2017 medical opinion and finds that the VA neurologist did, in fact, consider the lay contentions regarding the occurrence of back symptoms during service and after service. In the medical history section of the opinion, the VA neurologist specifically recited the appellant's report that he first developed back pain in service and has continued to have such pain to the present. The VA examiner considered such lay reports in providing the negative nexus opinion, but explained that the service treatment records, particularly the separation medical examination, would have identified a clinically significant condition had there been an inciting traumatic event that would have resulted in a latent manifestation of the disorder decades later. More significantly, the VA neurologist explained that the nature of the pathology currently displayed by the Veteran was of the type associated with the normal aging process. Thus, the Board finds that the VA medical opinion of record is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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). Background The Veteran's service treatment records are negative for complaints or findings of a low back disability or associated neurological impairment. At his April 1967 separation medical examination, the Veteran's spine and lower extremities were examined and determined to be normal. Neurological evaluation was also normal. The record on appeal includes post-service clinical records dated from 1984 to 2002. In pertinent part, these records indicate that the Veteran was seen on multiple occasions for treatment of low back pain, which was diagnosed as muscle strain or sprain. Private treatment providers have identified the Veteran as suffering from various back disabilities, including degenerative disc disease and degenerative joint disease of the lumbar spine, as well as radiculopathy at S1, with which he was diagnosed in 2005. The Board notes that private treatment records dated in 2005 reflect that, on multiple occasions, the Veteran sought treatment for radiating pain that he reported began in December 2004 following an incident in which he lifted a heavy monitor at work. In an April 2005 private treatment record, however, the physician noted that it was less likely that lifting the monitor caused the onset of his symptoms three weeks later, suggesting that a back disability predated the on the job lifting injury. The physician noted that the Veteran indicated that there were no other injuries that he could recall. The physician further noted that it was possible that prolonged sitting and driving for hours could have caused the Veteran's low back pain. In July 2004, the Veteran submitted an application for VA compensation benefits, seeking service connection for hearing loss and tinnitus. His application is silent for any reference to a low back disability or associated neurological impairment, as is the clinical evidence assembled in connection with the claim. This clinical evidence notes that the Veteran worked as a policeman but makes no reference to complaints or findings of a back disability. In July 2007, the Veteran submitted a claim of service connection for a low back disability with associated neurological impairment. In an August 2007 statement, he indicated that he had served aboard frigate and destroyers in rough seas and had to ride out a few severe storms. In support of his claim, the Veteran submitted a March 2008 statement from his private chiropractor who stated that the Veteran's "lower back pain which involves nerve damage, vertebral disc and arthritic conditions could have been caused/initiated by an incident that occurred aboard a Navy ship at an earlier age." In a March 2008 statement, the Veteran indicated that he felt his back condition started in approximately March of 1965, when he was caught in a typhoon on the bridge of his ship and "thrown about." He indicated that he went to sick call and was told that he had probably sprained some muscles. He indicated that he continued to have muscle pains if he turned the wrong way or bent improperly. In a December 2008 statement, the Veteran's spouse recalled that the Veteran complained of back pain during service, which he has continued to experience. Subsequent clinical records show that in October 2011, the Veteran was diagnosed as having degeneration of the lumbar spine, lumbosacral spondylosis, and spinal stenosis of the lumbar region. The Veteran was also diagnosed as having bilateral radiculopathy caused by sciatic nerve impairment. In connection with the claim, the RO obtained VA medical opinions in October 2011, May 2014, June 2014, and March 2017. Diagnoses included lumbosacral spondylosis of the spine. The June 2014 clinician indicated that the Veteran's current degenerative changes of the spine was a pathology common in older adults. As set forth above, in October 2017, the Board solicited a medical expert opinion from a VA neurosurgeon in connection with the appeal. In November 2017, a VA neurosurgeon indicated that after reviewing the evidence of record, it was his opinion that it was less likely than not the Veteran's current low back disorder and/or any associated neurological disorder is related to his active service. The neurosurgeon noted the statements of the Veteran and his spouse to the effect that he had first developed back pain in service which had continued to the present. The neurosurgeon further noted that in 1967, when the Veteran separated from service, there was no back pain, radiculopathy, or related musculoskeletal trauma identified. The neurosurgeon noted that he had reviewed the post-service clinical records, including those dating back to 1984 noting treatment for low back pain consistent with muscle strain/sprain. Finally, the neurosurgeon noted that he had reviewed the March 2008 statement from the Veteran's chiropractor. Based on his review of the record, the neurosurgeon concluded that it was unlikely (less than 50 percent probability), that the Veteran's current low back disorder and/or any associated neurological disorder is directly related to his active service. The neurosurgeon explained that lumbosacral spondylosis (degenerative arthritis affecting the spine) was the most common cause of lumbar spinal stenosis. It occurs more frequently with increasing age and tends to occur most commonly in individuals over the age of 40 years. Progressive disc degeneration due to aging can lead to disc protrusion and loss of disc height resulting in facet joint arthropathy, formation of bone spurs (osteophytes) and ligamentum flavum hypertrophy (inflammation of the spinal ligaments), which ultimately results in lumbar spinal stenosis and radiculopathy. He indicated that the Veteran's clinical history and findings illustrated the natural history of age-related degenerative lumbosacral spondylosis and radiculopathy. He further noted that there was no evidence of any inciting traumatic event during the Veteran's active duty that would have resulted in a latent manifestation of the disorder decades later. In other words, if there had been clinically significant back pain or nerve impairment that occurred during the Veteran's time in military service, then it would have been documented in the service treatment records or at the separation medical examination. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis or an organic disease of the nervous system, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for a low back disorder with associated nerve impairment. He contends that he first developed back pain in service and has continued to have such pain to the present, as well as radiating pain that he believes to be related to his claimed back disorder. See August 2007, March 2008, and December 2008 statements from the Veteran and April 2011 hearing testimony describing the history of his low back disorder. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disorder with associated nerve impairment. As set forth above, the Veteran reports developing low back pain in service after he was thrown about during a typhoon aboard ship. Although this treatment is not documented in the service treatment records, he recalls that he was diagnosed as having a muscle sprain. The service treatment records, however, contain no indication that he was diagnosed as having a chronic back disability during service. In fact, at his April 1967 military separation examination, his lower extremities, spine, and neurological evaluation were determined to be normal, suggesting that his reported back injury resolved without residual disability. The post-service clinical evidence is similarly silent for any indication that arthritis of the spine or neurological impairment was manifest to a compensable degree within one year of service separation. Although the most probative evidence establishes that a chronic low back disability and/or any associated neurological impairment was not present during active duty or manifest to a compensable degree within one year thereafter, as set forth above, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Thus, if there is a causal connection between the current condition and active service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354 (1992). Thus, the Board has weighed the evidence of record addressing the etiology of the Veteran's current back disability. As set forth above, the record contains conflicting evidence. The record contains a March 2008 statement from the Veteran's private chiropractor who stated that the Veteran's "lower back pain which involves nerve damage, vertebral disc and arthritic conditions could have been caused/initiated by an incident that occurred aboard a Navy ship at an earlier age." On the other hand, the record also contains the November 2017 opinion from a VA neurosurgeon, who concluded that it is unlikely that the Veteran's low back disorder and/or any associated neurological disorder is related to the Veteran's military service. After carefully considering conflicting opinions discussed above, the Board finds that the November 2017 VA medical opinion is persuasive and assigns it greater probative weight. The neurosurgeon reviewed the entire record on appeal and expressly considered the Veteran's contentions, factors which increase the weight of the opinion. The neurosurgeon specifically addressed the Veteran's medical history, referenced pertinent information in the record, and provided a very detailed and thorough rationale for his conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). The opinion from the private chiropractor, on the other hand, contains no rationale. There is no indication he had the benefit of reviewing the relevant evidence of record. More importantly, the chiropractor's opinion is framed in speculative terms, i.e. the Veteran's low back disability "could have been" caused by service. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). Given the applicable standard of proof, the Board finds that the statement of the private chiropractor is insufficient to support an award of service connection and does not equal or outweigh the extremely probative VA medical opinion evidence discussed above. The Board acknowledges the contentions of the Veteran and his wife, that his back condition is related to service as he developed back pain in service which continued after service. While they are competent to describe matters such as the Veteran's symptoms, and while the both the Board and the VA neurosurgeon considered those statements, neither has shown that they possess specialized training necessary to render a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of the back disabilities the Veteran displays are matters not capable of lay observation, and require medical expertise to determine. Questions of competency notwithstanding, the Board concludes that their opinions as to the etiology of the Veteran's low back condition are outweighed by that of the November 2017 VA neurosurgeon, who possesses a higher degree of expertise. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disorder with associated nerve impairment. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disorder with associated nerve impairment is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs