Citation Nr: 18145333 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 09-05 676 DATE: ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a low back disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1979 to September 1981. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 1. Duties to Notify and Assist The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such, individuals are entitled to the same care and consideration given to non-incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Efforts were made to work with the prison to accommodate the Veteran’s request for a Board hearing, but this was unsuccessful. See June 2016 Report of Contact. The Board sent the Veteran a letter in June 2016 presenting him with alternatives to a hearing. He did not respond; in fact, there has been no direct communication from the Veteran concerning his appeal for several years. The Veteran is currently incarcerated and is not set to be released in the near future. The Veteran stated in an April 2008 Notice of Disagreement that his being incarcerated in prison should not be a reason to use against him for denying him a medical examination and for subsequently denying him entitlement to service connection. He further claimed that because the VA had an incorrect address, he did not receive any information that the VA might have or had sent to him. However, the VA later afforded the Veteran a VA examination and an addendum medical opinion. The VA also corrected his mailing address accordingly and forwarded him returned mail. Thus, the VA’s duty to notify and assist has been met. The Veteran has not raised any additional issues with the duty to notify or the 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). In 2016 and 2018, the Board remanded this claim for development. An adequate opinion was provided that addressed the deficiencies from a 2017 VA examination. Thus, the Board finds substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to Service Connection for a Low Back Disorder Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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 present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, including arthritis, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In this case, however, the Veteran is not entitled to presumptive service connection. There were neither manifestations of arthritis during service nor objective medical evidence in the record tending to show that arthritis developed within one year after service. When all 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Board must consider all the evidence of record and discuss in its decision all “potentially applicable” provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet. App. at 56. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (stressing that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Veteran seeks entitlement to service connection for his low back condition. He contends that his current low back disorder is directly related to his military occupational specialty (MOS) of parachute rigger and jumping out of airplanes as a member of an airborne unit. The Veteran’s personnel records confirm his MOS. While the Veteran was diagnosed with lumbar spondylosis in August 2007 (see August 2007 state medical treatment record), he was afforded a VA examination in May 2017. The VA examiner noted the August 2007 diagnosis, but concluded it was a clinical diagnosis, because he was unable to find any radiology reports to confirm that diagnosis. After a thorough in-person examination of the Veteran’s back, which revealed perfectly normal range of motion (ROM) and negative findings for intervertebral disc syndrome (IVDS), radiculopathy, and muscle spasm of the thoracolumbar spine—and taking into consideration the fact that the Veteran is not currently undergoing any treatment, the examiner concluded that the Veteran did not have a current lumbar diagnosis. However, the Board found the May 2017 examination inadequate, because the examiner relied on incomplete records in reaching the conclusion. Indeed, it is clear that the VA examiner did not consider a June 2006 radiology report (x-ray of the lumbar spine, which shows posterior facet hypertrophic changes and a negative finding of spondylosis) and a June 2007 radiology report (MRI of the lumbosacral spine, which shows a diagnosis of degenerative disc and a finding that an “underlying spondylosis may be present”), which were contained in the claims file and were available for him during the May 2017 VA examination. Pursuant to the January 2018 Board remand, the VA examiner provided an August 2018 addendum medical opinion. In his August 2018 opinion, the VA examiner noted the Veteran’s degenerative changes, lumbosacral transitional vertebra (LSTV), degenerative disease, as well as a notation that an “underlying spondylosis diagnosis may be present” documented in the Veteran’s medical records. Thus, it is not in dispute that the Veteran has a current disability of a low back disorder. The Veteran’s service treatment records show complaints of low back pain with diagnoses of muscle strain. Specifically, the Veteran alleged in March 1981 that he experienced a sharp low back pain after incurring a back injury while lifting a parachute on a pully. In July 1981, the Veteran reported again low back pain and attributed its cause to his lifting weights and injuring his back. The diagnosis was over exertion of lumbar muscle. Therefore, there is sufficient evidence of in-service injury. The question for the Board is whether the Veteran’s current disability began during service or is at least as likely as not related to an in-service injury. The Board concludes that, while the Veteran has a diagnosis of a low back disability, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, the service records do not conclusively show he had a chronic back condition during service. He was treated twice in 1981 and no diagnosis of a chronic condition was made at that time. When he underwent his August 1981 separation examination, the Veteran denied recurrent back pain and examination showed normal spine and a “good ROM.” Second, there is no persuasive evidence of post-service continuity of symptoms. To the extent the Veteran argues such in presenting his claim for benefits, those allegations are refuted by other evidence. Not only did the Veteran deny recurrent back pain upon separation from service, he also completed a medical history form in 1985 wherein he denied having any medical conditions that needed treatment, or any history of physical injuries or conditions including those in military service. If the Veteran had been experiencing chronic back pain since the treatment in service in 1981, it is reasonable to expect he would have reported such a few years later, especially when asked directly about any military injuries. Finally, despite receiving treatment for low back pain while in prison beginning in 2002, the Veteran did not report military injuries as the onset of his pain. To the contrary, he dated his pain to a 1982 motor vehicle accident. See June 2007 physical therapy evaluation. History given in the course of seeking medical treatment is especially persuasive, as it is reasonable to assume one would give a full and accurate account to a medical provider. The first time the Veteran ever mentioned military injuries to the medical professionals at the prison was in August 2007 – almost immediately after he filed his claim for VA benefits. For all these reasons, the Board finds there is no persuasive and credible evidence of post-service continuity of symptoms. Finally, the most persuasive and competent evidence does not show that the chronic back condition first diagnosed decades after service is related to his service. There is only one medical opinion of record and it is not favorable to the Veteran’s claim. The Board affords great probative value to the August 2018 addendum medical opinion. The VA examiner’s conclusion was supported by sufficient medical rationale and is consistent with the verifiable facts regarding the Veteran’s condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2009) (holding that it is factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Indeed, the examiner considered all available records, including the June 2006 and 2007 radiology reports, which he had not considered during his May 2017 examination. The VA examiner opined that he stands by his May 2017 findings that the Veteran’s current low back condition is “less likely than not” caused by in-service condition because he found no additional evidence to change his position. While the VA examiner noted the Veteran’s routine x-rays that show degenerative changes, he supplemented his addendum medical opinion with a brief excerpt from the Columbia Journal of Radiology, which provides that “most people’s spinal disc degenerate over time” and that “degenerative disc disease is a natural, age-related process.” The VA examiner pointed out that the Veteran was 48 at the time of x-rays and MRI, while he was 24 when he was in service. The VA examiner further concluded in his August 2018 addendum medical opinion that there was no in-service incurrence or aggravation of the Veteran’s low back condition. His rationale was that while lumbosacral transitional vertebrae (LSTV) are congenital spinal anomalies and patients with LSTV are more prone to getting back pain, the Veteran’s complaint of back pain arose in 2006 while imprisoned while working as a porter. The necessary legal element of casual relationship between the present disability and the injury incurred or aggravated during service is absent in this case. See Shedden, 381 F.3d at 1167. Although the Veteran is competent to testify as to events that occurred in service and symptoms such as pain, he is not competent to conclude that his current low back condition is related to service, or that it was caused or aggravated by a service-connected condition, because such musculoskeletal issues are not susceptible to lay opinions on etiology. Therefore, the Board finds that the Veteran’s statement of record cannot be accepted as competent evidence sufficient to establish service connection for a low back disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel