Citation Nr: 18157324 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 08-25 858 DATE: December 12, 2018 ORDER Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s diagnoses of degenerative disc disease (DDD), degenerative joint disease (DJD), spondylosis, and spondylotic spondylolisthesis are etiologically related to the Veteran’s military service. 2. The Veteran’s spina bifida occulta and dextroscoliosis are congenital defects which were not subject to a superimposed injury or disease that caused additional disability during service. CONCLUSION OF LAW The criteria to establish service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Agency of Original Jurisdiction (AOJ) for this matter is the RO in Denver, Colorado. In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In August 2011, the Board remanded the matter on the merits for further development. In August 2013, the Board again remanded the claim for additional development. The Board denied the claim in March 2015. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted a Joint Motion for Remand (JMR) that vacated the Board’s March 2015 decision and remanded the case for further development and consideration. In June 2016, the Board remanded the claim for additional development in compliance with the JMR. In March 2017, the Board again denied the claim. The Veteran appealed the decision to the Court, which in turn granted a JMR in June 2018 vacating the Board’s March 2017 decision and remanded the case for further consideration. Regarding the March 2016 Court remand, the Board was instructed to address the following: 1) provide adequate reasons and bases explaining how the October 2011 and October 2013 VA examination reports are adequate for rating purposes under 38 C.F.R. § 4.59; and 2) consider whether the Veteran is entitled to service connection for diagnosed spondylosis and spondylotic spondylolisthesis. The Board addressed these concerns in the March 2017 decision. In the June 2018 Court remand, the Court found the Board did not adequately support with reasons or bases its finding that continuity of symptomatology was not demonstrated because the Board relied primarily on the finding that “arthritis was not noted during service.” The Board will respond to this issue in the decision below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Degenerative disc disease and degenerative joint disease are considered by VA to be “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; see also 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection is also available for congenital diseases, but not defects, that are aggravated in service. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, 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 may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App., 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. 1. Entitlement to service connection for a low back disability The Veteran contends that he injured his back in service while working on an assembly line. He states that the assembly line consisted of approximately 100 people standing to load cargo into a ship, and that one time, the line abruptly stopped and he was left holding a 75-pound item in an awkward position. In March 2011, the Veteran testified that after the in-service incident, he felt immediate pain, was taken off the line, and sent to sick call. He also testified about his post-service jobs, which included working at a convenience store; working in a job where he smoothed and shaped poured concrete, working in a warehouse, and working for a telephone company. The Veteran and his wife testified about a back injury the Veteran incurred in 1971 while working with concrete. The Veteran stated that he pulled his back, which caused him to miss work for one week. He sought treatment from a chiropractor. Additionally, the Veteran’s spouse testified that the Veteran was involved in a motor vehicle accident in 2001, which aggravated his low back injury. In May 2011, the Veteran’s wife also argued that the Veteran’s current low back condition is related to his military service, and that following service, he was unable to work in jobs that were strenuous to his back. His spouse stated that the Veteran tried to obtain treatment records from the 1970s regarding his back, but the treating physicians are deceased and the records no longer exist. In sum, the Veteran and his wife attribute his current back problems to the in-service injury. The Veteran has been diagnosed with the following disorders pertaining to the back: DDD of the lumbar spine, DJD of the lumbar spine, spondylosis, spondylotic spondylolisthesis, spina bifida occulta, and lumbar dextroscoliosis. The questions for the Board are 1) whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, 2) whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service, and 3) whether the Veteran has a congenital disease that was aggravated by service. The Board concludes that, while the Veteran has current diagnoses of DDD of the lumbar spine, DJD of the lumbar spine, spondylosis, and spondylotic spondylolisthesis, and evidence shows that he was treated for back pain on one occasion during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses are etiologically related to his military service. 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). Additionally, while the Veteran has DDD and DJD, which are chronic diseases under 38 C.F.R. § 3.309(a), they were not chronic in service, did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Board also concludes that the preponderance of the evidence shows the Veteran’s diagnoses of spina bifida occulta and lumbar dextroscoliosis are congenital defects rather than congenital diseases, and are therefore not eligible for service connection. Service treatment records show no abnormalities of the spine or musculoskeletal system on the Veteran’s March 1969 entrance examination. In November 1969, the Veteran reported back and hip pain that had been present for around two years. In an August 2005 statement, the Veteran reported that the examiner mistakenly wrote down 2 years instead of 2 months. X-rays from November 1969 revealed a decreased number of lumbar vertebrae, consistent with spina bifida. He was also noted to have spondylolysis and an unstable back. A subsequent physical therapy consultation revealed a negative examination, and he was prescribed at-home exercises. On further orthopedic consultation, the Veteran displayed a full range of motion without pain. He was prescribed exercises, and was advised to not perform heavy lifting and to sleep on a firm bunk. He was diagnosed with a mild lumbosacral strain. Significantly, at his separation examination in December 1970, no abnormalities of the spine were found and the Veteran raised no complaints in this regard. In August 2007, a private physician, Dr. A.W., submitted a letter stating, “[the Veteran] still has chronic, persistent lumbar back pain, which could be attributed to the aggravation [of] an old injury during his work related injury in a motor vehicle accident on 5/10/2001.” However, the Board finds this opinion is speculative, as Dr. A.W. found the Veteran’s current symptoms “could be” attributed to the aggravation an old injury . See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “the veteran’s death may or may not have been averted.”). Moreover, Dr. A.W. did not identify the “old” injury, and, as the record indicates, the Veteran sustained post-service low back injuries. Therefore, this opinion is of little probative value. In April 2011, the Veteran sought an opinion from a private chiropractor, C.C., as to the etiology of his low back pain. The chiropractor noted the Veteran’s history of loading heavy rockets in service, and the Veteran’s report that his back pain started at this time. Based on an examination and X-ray results, the chiropractor diagnosed spondylotic spondylolisthesis, and mild to severe disc degeneration and degenerative arthritis. The chiropractor opined, “it is in my opinion reasonable to conclude that the time of military service matches the approximate age of the degeneration.” He stated that the Veteran’s spondylotic L5 was consistent with lifting heavy objects with poor posture, as well as the general stresses of military boot camp and active service. He also stated that the disc degeneration and degenerative arthritis “could not get in the condition it is [sic] in now in less then [sic] 20 plus years.” He stated that while there was no way to know the exact etiology with certitude without pre- and post X-rays and MRIs, “there is nothing that makes sense as an alternative cause.” The Board finds, however, that though this opinion is in favor of the Veteran’s claim, it can be assigned only little probative weight. The opinion from C.C. makes no mention of the Veteran’s in-service mild lumbar strain diagnosis, or his post-service back injuries. C.C. reasoned that there is a lack of an alternative cause to explain the Veteran’s degenerative conditions, which he believes could not have developed in less than 20 years. However, C.C. fails to address whether the Veteran’s 1971 back injury while working with concrete could serve as an alternative etiology for his current back conditions. Additionally, C.C. did not discuss the impact of the back injuries the Veteran sustained in a 2001 motor vehicle accident. Thus, it appears C.C.’s opinion and conclusions were generated without consideration of the Veteran’s complete medical history. The Veteran was afforded a VA examination in October 2011. Based on a review of the Veteran’s record and X-ray reports from October 2011, the VA examiner issued the following diagnoses: spina bifida occulta, noted as a congenital abnormality; very mild lumbar dextroscoliosis, most likely a congenital development in etiology; DDD and DJD, acquired over time due to the natural aging process coupled with injuries, and wear and tear. The examiner opined that the Veteran’s DDD and DJD of the lumbar spine were less likely than not related to service. He noted the Veteran’s 1969 diagnosis of mild lumbosacral strain from the orthopedic surgeon in service. The Veteran went to one session of physical therapy and did not require follow-up. His separation examination did not mention any lumbar disorder. The Veteran reported that after service, he worked with concrete and had to seek chiropractic treatment thereafter. By contrast, the examiner noted that the Veteran’s in-service injury had not resulted in any follow-up or continuity of medical, chiropractic, or orthopedic care. The Veteran was additionally involved in a severe motor vehicle accident in 2001 that caused a traumatic brain injury. The examiner noted the Veteran’s reports that his low back pain was worse after this accident. The examiner also addressed the April 2011 opinion from the private chiropractor, C.C., but disputed its findings on the same bases noted by the Board. The examiner stated it was unknown whether C.C. was aware of the in-service orthopedic surgeon who diagnosed only mild lumbosacral strain, and that there was no follow-up care needed. Additionally, the examiner noted that C.C. failed to consider the Veteran’s relevant history of a post-service work injury that resulted in chiropractic treatment, or his 2001 motor vehicle accident which was severe enough to injure the lumbar spine. Regarding the Veteran’s DDD and DJD, the examiner concluded the post-service labor causing back problems and the 2001 car accident “so significantly confound this Veteran’s current VA back disability claim and introduce such uncertainty into the equation, that an association between the Veteran’s claimed low back condition with his period of military service cannot be supported on medical grounds.” The Board assigns significant probative weight to the examiner’s opinion, as it is based on a complete review of the Veteran’s claims file and includes sufficient rationale in support of the conclusion. The examiner also concluded that neither spina bifida occulta nor mild dextroscoliosis were aggravated by service. However, though the examiner identified these two conditions as congenital, he did not specify whether they were congenital diseases or defects. Thus, the Board remanded the case in August 2013 for a clarifying medical opinion regarding the Veteran’s congenital conditions. In October 2013, a VA medical opinion was obtained. In her report, the examiner included a detailed review of both lay and medical evidence. The examiner determined that the Veteran’s spina bifida occulta and dextroscoliosis are congenital defects. Regarding the Veteran’s scoliosis, the examiner stated, “scoliosis in this case is more likely than not a congenital defect (caused by vertebral anomalies present at birth) based on the presence of the spinal bifida occulta and the consistent presence of this finding over time on x-rays.” As for whether these congenital defects were subject to a superimposed injury during service, the examiner opined the following: Based on the lack of asymmetric muscle spasm or guarding, the minimal dextroscoliosis was not affected by a superimposed injury during service. The veteran does have clear documentation of a relatively short-lived low back condition in service, but based on the documentation of only a mild lumbosacral strain in service with negative physical exams, no need for follow up after the initial orthopedic consult, and the lack of available documentation of treatment for the low back for many years after service, it is less likely as not that the veteran suffered a significant superimposed injury in service with ongoing sequelae, including from the oct/Nov [sic] 1969 lumbosacral strain. The Board assigns significant probative weight to the opinion from the October 2013 VA examiner. The examiner’s conclusions were based on a complete review of the record and her medical expertise. Further, the Veteran has not submitted any medical evidence to contradict the finding that his spina bifida occulta and dextroscoliosis are congenital defects, or that they were not subject to a superimposed injury. With regard to these two diagnoses, the Veteran has only submitted a February 2012 lay statement contending that he does not have any congenital deformities, and that if he did, he would not have been able to enter military service. An addendum VA medical opinion was provided in September 2016. The examiner provided a detailed summary of the Veteran’s medical history. He noted the 1969 diagnosis of mild lumbosacral strain from the orthopedic surgeon in service. The examiner observed that the Veteran went to only one session of physical therapy, did not require follow-up, and there was no objective evidence of a chronic recurrent back problem or residual lumbar spine pathology documented in the Veteran’s service treatment records. The September 2016 VA examiner also noted the Veteran’s diagnosis of spondylolysis in service, and acknowledged that the November 1969 response from orthopedics indicated that X-rays of the back were within normal limits, and that the impression was mild lumbosacral strain. As a result, the VA examiner concluded that the initial in-service examiner who provided a diagnosis of an “unstable back” was likely seeing the Veteran’s spina bifida occulta, but did not recognize it for what it was. The September 2016 VA examiner further explained that this is common with individuals not specifically trained in spine care and evaluation. The September 2016 VA examiner also pointed out that the chiropractor’s diagnosis of “L5 Grade I spondylotic spondylolistheses” is not consistent with the radiologic diagnoses made by the October 2011 radiologist. The September 2016 examiner explained that the October 2011 radiologist noted the Veteran had incomplete osseous fusion of the posterior elements of L5, or, in other words, spina bifida occulta. The September 2016 examiner states this is not the same thing as spondylolysis (fracture of the posterolateral bony elements) or spondylolisthesis (slippage or degenerative changes in the spine). He stated that the X-ray reading by the radiologist takes precedence over a reading done by a chiropractor, who has much more limited training in reading X-rays, especially more complex X-rays showing conditions such as spina bifida occulta. Additionally, the September 2016 VA examiner noted that the Veteran’s spina bifida occulta and dextroscoliosis constituted congenital defects. The examiner opined that “spina bifida occulta is a congenital defect which does not change through life and is not caused by or aggravated by trauma.” The September 2016 VA examiner also noted that the Veteran’s lumbar dextroscoliosis is minimal, and is not evidence of a prior injury, as it is generally positional or congenital. The Board finds the opinion provided by the September VA examiner is competent and probative evidence supported by adequate rationale, and affords it significant weight. Based on the evidence discussed above, the Board concludes the Veteran is not entitled to service connection for a low back disorder. The Veteran is competent to report symptoms that he perceives through his own senses. See Layno, 6 Vet. App. 465, 469. However, while the Veteran and his wife have attempted to establish a nexus through their own lay assertions, the Veteran and his wife are not competent to offer an opinion as to the etiology of a low back disability due to the medical complexity of the matter involved, especially in view of the passage of time from service to the submission of the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Back disabilities require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran and his wife are not competent to render a nexus opinion to establish a connection between the Veteran’s current diagnoses and his military service. See Jandreau, 492 F.3d 1372, 1377 n.4; see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Service connection is not warranted for spondylosis or spondylotic spondylolisthesis. The Board acknowledges that service treatment records show that when the Veteran initially sought treatment for back pain in November 1969, he was noted to have spondylosis. However, at his follow-up examination with the orthopedic clinic, during which X-rays were taken, the Veteran was only diagnosed with a mild lumbosacral strain, not spondylosis. In April 2011, the private chiropractor diagnosed spondylosis and spondylotic spondylolisthesis based on X-ray findings. Yet the VA radiologist in October 2011 did not find that spondylosis or spondylotic spondylolisthesis were shown on X-rays, which is why the Veteran was not diagnosed with these conditions at the October 2011 VA examination. Further, not only did the September 2016 VA examiner point out the inconsistent X-rays findings between the April 2011 chiropractor and the October 2011 radiologist, but he also provided rationale for why the radiologist’s X-ray reading is more reliable than the chiropractor’s findings. Therefore, while the Veteran has diagnoses of spondylosis and spondylotic spondylolisthesis documented in the record, the Board finds that the preponderance of the evidence does not support a finding that these diagnoses are accurate or that they are etiologically related to the Veteran’s military service. Service connection is not warranted for DDD or DJD on either a direct or presumptive basis. The only opinion of record in support of the Veteran’s claim is the April 2011 opinion from the private chiropractor, C.C. However, as noted in detail above, the Board, as well as VA examiners, acknowledged that the chiropractor’s opinion failed to address all the pertinent facts regarding the Veteran’s back conditions, particularly post-service injuries. Thus, the chiropractor’s opinion was afforded only little probative weight. The Board finds the opinions specifically regarding DDD and DJD from the October 2011 and September 2016 VA examiners to be most reliable, as they are based on a thorough review of the claims file and supported by adequate rationale. Both examiners noted that following the Veteran’s in-service diagnosis of a mild lumbar strain, he only required one physical therapy consult, his back was considered within normal limits, and he did not seek any additional treatment while in service. The October 2011 examiner made note of the Veteran’s post-service back injuries in 1971 and 2001, which actually required follow-up treatment. The September 2016 examiner pointed out that when X-rays of the Veteran’s spine were taken in 2011, he was 62 years old, and it was very common for individuals of that age to have DDD and DJD of the spine. Thus, neither examiner found a nexus to establish an etiological relationship between the Veteran’s military service and his diagnoses of DDD and DJD. Service connection is not warranted for DDD and DJD as chronic diseases, as they were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. As previously stated, the Veteran was treated for back pain during service in November 1969. There are no other complaints of or treatment for a back condition within the service records, including the Veteran’s service separation examination in December 1970. Thus, there is no indication within the service medical records that the Veteran had a chronic back condition during service. The Veteran was discharged from service in February 1971. He reported his back pain returned post-service due to an injury incurred while working with concrete in 1971, which falls within one year of service discharge. Though the Veteran is competent to report back pain, he is not competent to establish that the post-service back injury and pain were etiologically related to his in-service lumbar strain, or that it manifested to a compensable degree. Further, the Veteran has not provided evidence of continued symptomatology since service regarding his low back condition. While the Veteran attempted to retrieve treatment records from 1971, due to no fault of the Veteran, they could not be obtained. The Veteran contends his back pain is the result of an in-service event. Yet, even excluding the lost 1971 records, there are no medical records in the claims file from the first 30 years after service. Following his service treatment records, the earliest dated medical record in the file is a 2005 VA medical examination. The preponderance of the evidence is against finding that the Veteran had either a chronic back condition in service, a back condition that manifested to a compensable degree within one year of service, or a back condition with continued symptomatology since service discharge. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Accordingly, presumptive service connection is not warranted. As for the Veteran’s spina bifida occulta a dextroscoliosis, the evidence shows that these are congenital defects. Therefore, service connection may only be granted if there is additional disability due to disease or injury superimposed upon the spina bifida occulta a dextroscoliosis in service. VAOPGCPREC 82-90. The October 2013 VA examiner concluded that there had not been a superimposed disease or injury during service that caused additional disability, based on the facts that the 1969 injury was mild and short-lived, did not cause asymmetric muscle spasm or guarding, and did not require follow-up. There is no evidence to the contrary. In the absence of competent evidence of any additional superimposed disease or injury associated with the congenital defects in service, service connection cannot be established for spina bifida occulta or lumbar dextroscoliosis. The preponderance of the evidence is against finding a link between the Veteran’s low back disability and his active service. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA…the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). (Continued on the next page)   In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel