Citation Nr: 1805923	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  11-22 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a back disability, including as secondary to a service-connected knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel
INTRODUCTION

The Veteran had a period of active duty for training (ACDUTRA) from July to November 1979 in the United States Marine Corps Reserve, with additional periods of reserve service, and served on active duty in the United States Army from November 1982 to September 1985.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 RO decision that in pertinent part, denied service connection for a back disability.

A videoconference hearing was held in July 2013 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

The Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development in July 2014 and February 2017, and the case was subsequently returned to the Board.


FINDING OF FACT

The preponderance of the competent and credible evidence indicates that the Veteran's current back disability began years after his active military service and was not caused by any incident of service. The most probative evidence indicates that the current back disability is not related to service or a service-connected disability.


CONCLUSION OF LAW

The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter dated in February 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. 

The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was  deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

The Board also notes that actions requested in the prior remands have been undertaken. In this regard, additional treatment records were obtained, and the Veteran was afforded VA examinations and medical opinions regarding his claim. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).



Service Connection 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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). 

A Veteran is presumed in sound condition when examined and accepted for service, except for defects or disorders noted at entrance to service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the nonservice-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b).

Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Analysis

The Veteran primarily contends that his service-connected left knee disability resulted in an altered gait, which led to his current low back disability, although he has also asserted other theories of service connection. 

Service connection was established for a left knee disability in September 1985, and for a right knee disability in June 2009. 

In his February 2010 claim, the Veteran contended that a VA physician told him that because he adjusted his stance due to his knee condition, he fell and injured his back some months ago, and he now had bulging discs. In his April 2010 notice of disagreement, the Veteran contended that his back disability was caused by an adjustment in his stance as a result of his knee disability. In his August 2011 substantive appeal, the Veteran reiterated his assertions and stated that he did not contend that his back disability began in service, but rather that his gait put pressure on his low back. In contrast, in February 2013, the Veteran's representative contended that his back condition is related to injury during service in the U.S. Army. The representative asserted that at the time of the injury he was assigned to the Department of Defense Intelligence Agency, and while assigned to this tour of duty he had to sign a non-disclosure agreement, which was why his service treatment record was silent for any treatment for back condition.

At his July 2013 Board hearing, the Veteran testified that doctors have told him that his current back disability is related to his abnormal gait from his service-connected left knee disability. He said his gait had been altered since he began wearing a knee brace in the 1980s.

The medical evidence reflects that the Veteran has been diagnosed with a low back disability. See November 2009 magnetic resonance imaging (MRI) of the lumbosacral spine, January 2010 VA pain consult, VA examination reports. The determinative issue, then, is whether the current back disability is attributable to the Veteran's service or a service-connected disability.

The Veteran had a period of ACDUTRA from July to November 1979 in the USMC Reserve, with additional periods of reserve service, and served on active duty in the U.S. Army from November 1982 to September 1985. He received no combat awards or citations, and his service was during peacetime. 

Service treatment records are negative for a low back injury or a diagnosis of a back disability. Service treatment records show that the Veteran was treated for a left knee injury. In June 1983, he was treated for quadriparesis secondary to conversion reaction, improving. In the transfer summary relating to this admission, a neurosurgeon indicated that during the admission, a total myelogram was performed from the vertebral arteries to the sacrum, which was "totally normal." On medical examination in August 1985, the Veteran's spine was clinically normal. In an August 1985 report of medical history, the Veteran denied a history of recurrent back pain.

Post-service VA medical records dated in 1985 and 1986 reflect treatment for a left knee disability and are negative for complaints or treatment of a back disability. Such records reflect instability of the left knee. Subsequent treatment records show ongoing treatment for left knee complaints, and he was given a knee brace for his left knee. In May 1995, the Veteran complained of low back pain; the diagnostic impression was low back musculoskeletal pain, rule out herniated disc. In October 1995, the Veteran underwent surgical repair of a tear of the left knee anterior cruciate ligament (ACL). Subsequent VA and private medical records are negative for treatment of back complaints until 2008.
 
VA treatment records dated in July and November 2008 reflect that the Veteran reported that he regularly performed heavy lifting at his job. In July 2008, he reported that his low back felt stiff; he was diagnosed with a left inguinal hernia. A June 2009 internal medicine consult reflects that the Veteran's spine had normal range of motion and was not tender.

On VA knee examination in October 2009, the Veteran stated that he favored his left knee because of pain, and had an abnormal gait. On examination, he had an antalgic gait, and instability of the left knee.

An October 2009 X-ray study of the lumbosacral spine was performed because the Veteran reported leg numbness after stretching. He said he had fallen after bending over his computer to hang a curtain. The X-ray study showed osteophytes. A subsequent October 2009 VA X-ray study of the lumbosacral spine showed degenerative changes. A November 2009 MRI of the lumbosacral spine showed a small central disc protrusion without stenosis at L3-4, L5-S1. At L4-5, there was mild diffuse disc bulge with a superimposed small central disc protrusion, mild bilateral facet hypertrophic changes, and mild central stenosis. A February 2010 VA physical therapy note reflects that the Veteran reported that he had chronic low back pain for 15 years.

A VA examination was conducted in August 2014. The Veteran reported that the initial symptoms of back pain began in the low back during service, and the condition had a progressive onset with no history of acute traumatic etiology. He stated that he noted the onset of low back pain after his service-connected left knee surgery in 1985, during service. The examiner observed that the service treatment records were negative for the claimed back condition/injury. The examiner diagnosed degenerative joint disease and intervertebral disc syndrome (IVDS) of the thoracolumbar spine, and opined, in pertinent part, that based on the examination and a review of current medical literature (which was cited in the opinion), there was no scientific evidence that the current low back condition is proximally due to the Veteran's reported in-service back injuries, and it is less likely as not that the Veteran's complaints of back pain are due to an acute traumatic back injury in service. The examiner also opined that it is less likely as not that the Veteran's complaints of back pain are proximally related to the service-connected knee injury. Instead, as the current scientific literature indicates that multifactorial causes are the probable etiology of the Veteran's back pain. 

The examiner stated that the Veteran's assertion of increased pain and loss of function of his back was creditable, but the probable etiology of the current additional intensity of pain and disability were more than might be normally expected with the current diagnoses, and therefore, the significant increase in intensity of pain from the anticipated level may suggest that it may be more likely than not attributable to non-anatomic (i.e. non-musculoskeletal) causes. The examiner opined that the Veteran's complaints of increased pain and loss of function are more likely than not the result of confounding factors including a psychiatric disorder. In a March 2015 addendum medical opinion, the examiner opined that 
the back disability was not caused by (or proximately related to or aggravated by) the service-connected bilateral knee disability, and that awkward postures such as squatting and kneeling did not cause the back disability. 

The Board previously found that these medical opinions are inadequate as the examiner did not comment on the Veteran's assertion that his back disability was caused or permanently aggravated by an altered gait resulting from his service-connected left knee disability, and remanded the case for an addendum medical opinion.

A report of a July 2016 VA examination of the left knee reflects that the examiner indicated that the Veteran had prosthetic patellar instability which required stabilization with a knee brace, and increased back pain secondary to a modified gait necessary for his service-connected left knee. 

In an April 2017 VA medical opinion, the same VA examiner reviewed the medical records and relevant medical literature, diagnosed degenerative joint disease, intervertebral disc syndrome and degenerative disc disease of the thoracic and lumbar spine, which were non-service-connected and due to normal aging. The examiner stated that he had completed a history and physical examination of this Veteran, and that his professional medical opinion was based on the following factors: the history and physical examination, his expertise as an orthopedic surgeon, consideration of the relevant published literature, and current imaging studies. Since the previous compensation examination, the Veteran complained of experiencing both increased pain and loss of function/motion of the back, and denied any etiology of new acute traumatic injury or specific aggravating event to explain any increased disability. 

The examiner opined that it is less likely as not (49 percent probability or less) that the Veteran's current back disability was aggravated beyond the normal course of the condition by a service-connected disability, to include the service-connected bilateral knee disabilities (and any abnormal gait due to a service-connected knee disability). The examiner also stated that it is less likely as not that the contention that "prosthetic patellar instability which requires stabilization with a knee brace with a modified gait" has resulted in legal definition of aggravation, as this is not supported by the current scientific literature. The examiner opined that the current back disability is less likely as not (less than 50/50 probability) caused by or proximately related or aggravated by the service connected bilateral knee injuries. 

In determining whether statements made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Macarubbo v. Gober, 10 Vet. App. 388   (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The Board has reviewed all of the evidence of record, and finds that the contentions by the Veteran's representative that he had back injuries in service that are not recorded in his service treatment records because at the time of the injury he was assigned to the Department of Defense Intelligence Agency, and signed a non-disclosure agreement, are not credible as they are not supported by the Veteran's service personnel records. Moreover, the Veteran's written statements in July 2009 and January 2010, and testimony in July 2013 regarding combat injuries purportedly received in Central America from 1980 to 1982, are also not credible. The Board finds that this evidence is not credible as it is contradicted by the Veteran's service treatment and personnel records and his own statements made during treatment in March 1986 that he was in the Marine Corps Reserve in Tennessee from 1979 to 1982. The Veteran served in peacetime, and there is no evidence of combat service.

Service treatment records are entirely negative for a back injury or disability, and his spine was normal on myelogram in June 1983 and on separation medical examination in August 1985. Thus, the concurrent medical records contradict the Veteran's more recent contentions regarding service incurrence of a back disability, and reduce the credibility of his current contentions.

The Veteran did not claim that he had back pain that is related to service until the current VA disability compensation claim in February 2010, and the Board finds such statements of lesser probative value when contrasted with the histories he previously provided. See Pond v. West, 12 Vet. App. 341 (1999). In this regard, the Board notes that in February 2010, the Veteran reported to treatment providers that he had chronic low back pain for 15 years (i.e., since 1995, more than ten years after separation from service).

The Board notes that the Veteran received extensive treatment from VA for ten years after service for other disabilities, but did not offer complaints of back symptoms, and was not treated for such. The absence of such complaints, while he sought treatment for several other disabilities, is highly probative evidence weighing against his claim.

The Board has also considered the statements of the Veteran. As noted, he is competent to testify as to his observations, including his in-service and post service symptoms. Lay witnesses are also competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

The Board finds that the weight of the evidence does not show that the Veteran had continuous symptoms of back pain since service, and finds his assertions in this regard not to be credible. 

The Board finds that although a July 2016 VA examiner, during the course of a knee examination, opined that the Veteran had increased back pain secondary to a modified gait necessary for his service-connected left knee, the April 2017 examiner opined that it is less likely as not that the contention that "prosthetic patellar instability which requires stabilization with a knee brace with a modified gait" has resulted in legal definition of aggravation, as this is not supported by the current scientific literature. The Board finds that the April 2017 medical opinion is more probative than that of the July 2016 VA examiner because he performed physical examination of the Veteran's spine, and considered the Veteran's reported history and relevant medical literature. The April 2017 VA examiner also conducted the August 2014 VA spine examination and provided the March 2015 VA medical opinion. The April 2017 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record and based on relevant medical literature, and his opinion as to a lack of relationship between the current thoracolumbar spine disability and service or a service-connected knee disability is therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The examiner considered all of the evidence and concluded that the Veteran's thoracolumbar spine disability was not related to service or a service-connected disability, based on the nature of the spine disability. He opined that the current findings are likely due to age. 

To the extent that the Veteran has expressed his opinion that his current thoracolumbar spine disability is related to his service-connected knee disability or events in service, this is an assertion as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The statements of the Veteran as to the etiology of his spine disability are therefore not competent evidence, and are less probative than the competent medical opinion of the April 2017 VA examiner.

In addition, the above evidence reflects that arthritis did not manifest to a compensable degree within the one year presumptive period. Cf. 38 C.F.R. § 3.307  (c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Finally in this regard, as arthritis was neither shown as such nor noted in service, the provisions of 38 C.F.R. § 3.303 (b) are not for application.

The preponderance of the probative medical evidence does not link any current back/spine disability to a service-connected disability, and service connection for a back/spine disability on a secondary basis is not warranted.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a back/spine disability and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Alemany, supra.

ORDER

Service connection for a back disability is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs