Citation Nr: 18149162 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-11 758 DATE: November 8, 2018 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a lumbar spine disability due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This matter was previously remanded by the Board in October 2016. A supplemental statement of the case (SSOC) was issued in June 2018. In a July 12, 2018 letter the Veteran was advised that he had 90 days from the date of the letter, or until the Board renders a decision, to submit additional evidence. See July 2018 BVA Letter. Subsequently, in August 2018 the Veteran’s representative requested that the Veteran be afforded the full 90 days to respond to the July 12, 2018 letter. Accordingly, the Veteran’s claim was held in abeyance for 90 days beginning July 12, 2018. During the abeyance period, VA records from August 2012 through February 2018, two briefs from the Veteran’s representative dated August 2018, and July 2014 statement from the Veteran addressed to Congress were added to the record. See August 2018 CAPRI, August 2018 Third Party Correspondence, September 2018 Third Party Correspondence and September 2018 Congressionals. This evidence does not constitute additional evidence that requires a review by the RO. The February 2018 addendum and the Veteran’s July 2014 lay statements were a part of the record prior to the June 2018 SSOC. Further the representative’s briefs are duplicative of one another and do not raise additional issues to be considered by the RO. Accordingly, this evidence does not warrant remand to the RO for an SSOC. 38 C.F.R. §§ 19.9, 19.29. Accordingly, the Board may proceed with decision in this matter. I. Legal Criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110, 1131. Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). II. Analysis The Veteran contends that his lumbar spine disability is a result of his service in the Navy. Specifically, the Veteran testified that he fell and injured his back while playing basketball during active duty service. He also contends that he further injured his back during a subsequent fall in the aircraft launching and receiving area during a foot race with his colleagues. The Veteran testified that following those injuries, he has consistently had back pain and his symptoms have never improved or resolved. He reports that four months post service he received treatment from a chiropractor and continues to receive medical treatment for his back pain. See July 2016 Hearing Transcript. The Veteran also reports that he had to have back surgery in February 2003. See March 2012 Statement in Support of Claim. Evidence also shows that the Veteran had an in-service injury. While the Veteran’s entrance exam was normal, service treatment record show the Veteran complained of low right side back pain in June 1977. The Veteran was diagnosed with a muscle strain. Consistent with the Veteran’s testimony, service treatment records show the Veteran injured his back in December 1977 while playing basketball. The Veteran was noted to have a soft tissue contusion. However, a subsequent x-ray showed no lumbar abnormalities. The Veteran also reported back pain in November 1978, and February 1979. Despite these complaints of back pain, the Veteran was never diagnosed with anything more than a muscle strain or soft tissue injury. Further, the Veteran’s April 1979 discharge examination was normal. It was noted that he was qualified for discharge and to perform all the duties of his rank at sea and on foreign soil. See November 2016 STR Medical at 21, 32, 52, 59, 61. Of note, following the Veteran’s discharge, the record contains a significant gap in treatment. These records are unavailable. The Veteran’s treating physician reported that records from the 1980s and 1990s were destroyed after being kept for ten years. See October 2016 Medical Treatment Record. The Veteran also testified that he was treated by a chiropractor shortly after discharge, however that chiropractor has since passed away and the Veteran was unable to obtain those treatment records. See also July 2016 Hearing Testimony at 8. The record establishes that the Veteran has a current lumbar spine disability. Treatment records show that the Veteran was diagnosed with lumbar radiculopathy in April 2012. See December 2012 Returned Mail at 1. 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, event or disease. The Board concludes that, while the Veteran has a current lumbar spine disability and an in-service injury, the preponderance of the evidence weighs against finding that the Veteran’s lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The record contains various nexus opinions. While the Veteran’s private medical providers have opined that there is a nexus between the Veteran’s in-service injury and current disability, VA examiners have opined that there is no nexus between the Veteran’s in-service injury and current disability. For reasons discussed below, the preponderance of the most probative evidence does not establish a nexus between the Veteran’s current disability and in-service injury. The Veteran underwent VA examinations in February 2014 and February 2015. See March 2014 C& P Exam, February 2015 C&P Exam. Both examiners opined that the Veteran’s lumbar disability was less likely than not incurred because of his in-service injury or event. However, the Veteran’s complete service treatment records were not obtained until November 2016, after the Board’s October 2016 remand. See October 2016 Remand BVA Decision, see also November 2016 STR- Medical. Thus, while the Board affords some probative value to these opinions, their probative value is outweighed by subsequent, more recent January 2017, January 2018 and February 2018 VA examinations which are based on a thorough review of the record including all service treatment records. In June 2015 Dr. T.B. examined the Veteran. The Veteran’s diagnoses included lumbar post laminectomy syndrome, spinal stenosis, degeneration of the lumbar spine, lumbar spondylosis with facet arthrosis and lumbar radiculopathy. See June 2015 Other. Based on his examination, Dr. T.B. opined that it is likely that the Veteran’s lumbar disability began or was permanently aggravated while on active duty. See July 2015 Correspondence. Dr. T.B.’s opinion was based on a review of the Veteran’s in-service medical records and post service medical history, and the fact that the Veteran’s current disability is in the same location as his in-service injury. In October 2016 the Veteran’s pain management provider, A.L., Family Nurse Practitioner (FNP-BC), and Dr. S.S. opined that the Veteran’s symptoms are directly related to injuries sustained while serving in the United States Navy. See November 2016 Medical Treatment Record at 3. In January 2017, following a thorough review of the record, VA examiner Dr. D.H. opined that it is less as likely as not that the Veteran’s current disability is the result of an in-service injury or event. Dr. D.H. noted that the Veteran’s in-service injuries were acute and transitory and related to soft tissue conditions. Dr. D.H. referenced several STRs that were related to soft tissue conditions including the June 1977 diagnosis of muscle strain, December 1977 diagnosis of soft tissue contusion, December 1977 x-rays that showed no abnormalities, indicating that such was a soft tissue injury, November 1978 tightness of lumbar muscles that were treated with whirlpool, and separation examination noting he was qualified for all duty. Dr. D.H. also noted that the Veteran was found qualified for all the duties of his rank at sea and on foreign soil at the time of his discharge from service. See January 2017 C&P Exam. In September 2017, the Veteran had a telephone interview with private physician Dr. D.M. The Veteran reported that during service, despite his back injuries, he often worked 12 to 18 hours a day and treated his pain with over the counter medication. See September 2017 Medical Treatment Record-Non-Government facility at 17. Regarding his exit examination, the Veteran reported that he did not report any back injuries during his exit exam because he was going back into the civilian populace and did not think that it mattered whether he checked off anything positive or not. Notwithstanding the Veteran’s reports of ongoing back pain, post service, he worked various jobs including construction as a concrete finisher from 1982 to 1996 and as a utility worker for a carpet company from 2006 to 2011. These jobs were noted to be very physically demanding. The Veteran also reported a lumbar laminectomy in 2003 and a second lumbar surgery in 2013. See September 2017 Medical Treatment Record-Non-Government Facility at 17, 19; see also February 2014 Medical Treatment Record- Non-Government Facility. In September 2017, Dr. D.M. opined that it is at least as likely as not that the Veteran’s current lumbar spine condition began because of his in- service basketball injury. See September 2017 Medical Treatment Record- Non- Government Facility. Dr. D.M. based the opinion on a finding that the Veteran began experiencing a burning type of pain in his lumbar region immediately after the injury that is located in the same area today. Dr. D.M. reported that his opinion was based on a full review of the Veteran’s file, as well as an interview with the Veteran, his own expert knowledge and medical literature. In January 2018 and in a February 2018 addendum opinion, VA physician’s assistant T.F. opined that the Veteran’s current disability is not related to his in-service injury or event. The VA examiner was specifically asked to address the Veteran’s reports of receiving chiropractic treatment since his separation from service, Dr. T.B.’s observation that the Veteran’s low back disability was in the same area as his in-service back injuries and symptoms, and the September 2017 opinion of Dr. D.M. T.F. supported the conclusion by noting that there is no evidence that the Veteran had a significant back injury in service that resulted in a long term or chronic back condition. She further opined that the Veteran’s lumbar disability is related to his obesity and normal aging. She noted that Dr. T.B.’s opinion that the Veteran’s back disability is in the same area as the in-service injury is mere speculation without evidence noted. T.F. again referenced the normal separation examination at separation and added that with regard to chiropractic care, such is not diagnostic of any condition related to the Veteran’s service. See January 2018 C&P Exam, see also February 2018 C&P exam. Before evaluating the aforementioned medical opinions, the Board notes that the Veteran is competent to report his medical and employment history. The Board observes the Veteran’s assertion that he did not report his back problems at the time of his separation from service because he essentially did not think it mattered. However, the Board nevertheless finds it significant that the Veteran was examined at the time of his discharge and there were no documented abnormalities pertaining to his back on clinical observation. Moreover, following physical examination, he was found qualified for discharge and to perform all the duties of his rank at sea and on foreign soil. Thus, following clinical evaluation, a medical examiner did not find any symptomatology related to a back disorder, which further supports the lack of evidence of a back disorder at the time of his separation from service. The Board affords the most probative weight to the January 2017, January 2018, and February 2018 VA opinions. When considered together, these opinions are based on a full review of the evidence of record and are consistent with the record which shows that while the Veteran had some instances of back injuries during service, they were no more than soft tissue injuries. See November 2016 STR-Medical. The examiner specifically referenced each notation of an in-service injury in the STRs, and explained why they were soft tissue injuries that resolved. T.F. noted that Dr. T.B.’s conclusion that the Veteran’s current low back disability is in the same area as his in-service injuries is not supported by evidence. As the opinions are supported by a rationale and are provided by competent medical providers, the Board affords them probative value and finds them persuasive. These opinions are further supported by evidence showing that the Veteran remained able to engage in in physically demanding jobs post military service and did not require lumbar surgery until 2003 and 2013. With regard to the private opinions, the Board affords them little probative value. Dr. T.B.’s June 2015 opinion is not supported by a rationale. Although he noted that the back disability today is at the same place were his in-service injuries were, he does not support this conclusion by explaining how soft tissue injuries result in the current diagnoses. Similarly, A.L. and Dr. S.S.’s October 2016 opinions were not supported by any rationale. Thus, they are not persuasive. With regard to Dr. D.M.’s opinion, the Veteran’s representative argues that it is the most probative because he is an orthopedic surgeon and because his conclusions are supported by medical literature. However, the Board concludes that Dr. D.M.’s opinion is not probative as it is based on an inaccurate factual premise. Dr. D.M. asserted that the Veteran had no post-service trauma/injuries to his spine. However, he did not address how the Veteran’s post-service years of work in physically demanding occupations impacted his spine. It is not logical to the Board to conclude that years of post-service physically demanding work, for which the Veteran sought treatment, did not constitute some degree of post-service injury that should be considered for a fully informed opinion. Accordingly, little probative weight is afforded to this opinion. Overall, while the Veteran’s private medical providers opined that there is a nexus between the Veteran’s in-service injury and current lumbar disability, they are accorded less probative weight as they do not adequately address how in-service soft tissue injures are related to the current diagnoses, the normal exit exam with finding that the Veteran was fully qualified to perform his duties, post service physically demanding jobs, and his 2011 slip and fall at work. Conversely, the January 2018 and February 2018 VA examiners opinions are afforded more probative value as they are based on a thorough review of the record, are supported by adequate rationale, and are consistent with the evidence of record. In addition to his hearing testimony, the Veteran has submitted several statements in support of his claim in which he contends that his lumbar disability is related to an in-service injury, event, or disease, including his fall while playing basketball, and his lumbar strain while climbing into a jet plane. While the Veteran is competent to report an in-service injury or event, he is not competent to provide a medical nexus opinion in this case. The Veteran’s military colleagues have submitted lay statements in which they contend that they observed the Veteran receive treatment for his back in-service and that they have always known him to have back problems. See August 2013 Buddy Statements. The Veteran’s military colleagues are competent to provide lay statements about their observations. Nonetheless, they are not competent to establish a medical nexus. The Veteran’s representative asserts that the opinion of VA examiner T.F. is not credible due to her lack of training and expertise regarding orthopedic issues. See April 2018 Statement of Accredited Representative in Appealed Case, see also August 2018 Third Party Correspondence. For the reasons discussed above, the Board disagrees. Although T.F. is a physician’s assistant, there is no evidence that she is not qualified to offer an opinion as to the etiology of the Veteran’s back disability. A mere assertion that because T.F. is a physician’s assistant does not render her unqualified to offer an opinion. Moreover, the Board is relying on all three VA opinions when reaching its conclusions, to include that of a medical doctor. The value of an examination is based on the examiner’s consideration of the relevant evidence of record and whether a factually accurate, fully articulated, and sound reasoning for the conclusion has been provided. The VA opinions fully evaluated the record, including the opinion of Dr. D.M., offered adequate rationale for the opinions, and the opinions are supported by the evidence of record. See D’Aries v. Peake, 22 Vet. App. 91, 107 (2008) (the Board may favor one medical opinion over another if it offers adequate statement of reasons or bases). Overall, while the record shows that the Veteran has a current lumbar spine disability and an in-service injury, there is no evidence to establish a nexus between the two. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for lumbar disability is denied. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel