Citation Nr: 1806741 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-31 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and S.M. ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. A low back disability was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current low back disability is not related to service. 2. A headache disability was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current headache disability is not related to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for establishing service connection for a headache disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 38 C.F.R. § 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). 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). 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 service, even though there is no evidence of such disease 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. The Board has reviewed all the evidence in the record, which includes the service treatment records. 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 appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Low Back Disability The Veteran asserts that his current low back disability is a result of an October 1975 fall during service in which he injured his back. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with a low back disability, to include degenerative joint disease of the lumbar spine. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether a current low back disability is related to service. Upon review of the record, however, the Board finds that the most probative evidence is against the claim. Service treatment records show that in October 1975, while the Veteran was sitting on a heater in the barracks talking with a friend, he became queasy, passed out and fell, requiring hospitalization. At that time, it was noted the Veteran with a laceration and abrasion to his face. Although the Veteran's service treatment records note his in-service fall, they are silent as to any complaint of, treatment for, or diagnosis of any back condition. Indeed, the Veteran's May 1976 separation examination showed his spine and musculoskeletal system to be normal. In addition, the Veteran specifically denied arthritis and back pain on his May 1976 report of medical history. The first medical evidence showing a back condition was a private treatment record dated in June 2007, at which time the Veteran complained of low back pain for a long time. The physician noted the impression as low back pain, mechanical in nature with associated left hip girdle myofascial pain greater than right. A follow-up visit for back pain in July 2007 noted the same. In January 2010, the Veteran again complained of back pain of many years, which had become worse over the last two months. X-ray findings of the lumbar spine at that time show mild lower thoracic degenerative changes present. The lumbar spine was mildly hyperlordotic but otherwise normal in appearance. MRI findings at that same time revealed mild disc bulging at L4-5 slightly narrowing the thecal sac and foramina, but otherwise normal. VA treatment records indicate that in February 2015, the Veteran's problem list included low back pain since 1976 and the Veteran undergoing a lumbar injection in 2012, which helped but did not eliminate pain. In addition, it was noted that MRI results from November 2014 showed "L4-5: minimal diffuse posterior bulge unchanged. Mild facet arthropathy. Small right far lateral bulge/protrusion unchanged and does not appear to displace the right L4 root. Mild bilateral foraminal narrowing." As there is no medical evidence showing a back disability in service or arthritis within one year following discharge from service, competent evidence linking the current condition with service is required to establish service connection. However, the Board finds that the most probative evidence is against the claim. The Veteran underwent a VA examination in April 2015 and the examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. At that time, the Veteran reported that he hurt his back in 1976 and that he gets spasms in his lower back. He stated that these did not really affect him until he turned his truck over in 1982 and he "felt like a pinched nerve" after the motor vehicle accident with pain radiating down both legs. X-rays on examination revealed minimal disc narrowing at T11-T12 and T12-L1 appearing similar to the prior examination with mild facet degenerative changes noted. The small sclerotic area right inferior iliac bone above the acetabulum is unchanged since 2011 and the examiner noted was probably a bone island. MRI results showed mild degenerative disc disease greatest at T12-L1 and L4-L5, scattered small vertebral body hemangiomas again noted and are largest at T12, L3, and L5. The examiner noted the cord was normal, terminating at L1; the lower thoracic was also normal. There was a mild posterior bulge at T12-L1 with normal canal and foramina. L1-2, L2-3, L3-4, and L5-S1 were all noted as normal. L4-5 revealed minimal diffuse posterior bulge unchanged, mild facet arthropathy, small right far lateral bulge/protrusion unchanged, which did not appear to displace the right L4 root, and mild bilateral foraminal narrowing. The examiner noted that the hemangiomas incidentally noted on MRI are congenital variations and the bone island noted on plain x-rays are both clinically irrelevant. Moreover, the examiner referenced the 2006 private medical record noting sciatica as a chronic condition present, but the etiology/onset was not mentioned. However, the examiner was unable to provide an etiology opinion as service treatment records were unavailable for review. An addendum opinion was obtained in September 2016 from that examiner, at which time he opined that the Veteran's degenerative joint disease of the lumbar spine was less likely related to service. The examiner explained that the Veteran was released to full duty within 72 hours of his black out episode during service, and back issues were denied at separation seven months later. Further, the examiner remarked that the Veteran proceeded to engage in multiple physical strenuous occupations, including moving pallets (injuring one shoulder) and carrying sheetrock (injuring the other shoulder) which is not consistent with a chronic back condition. The examiner noted that medical records show widespread degenerative changes, including the neck, shoulders, and knees, as well as the lumbar spine. As a result, the examiner concluded that the Veteran's back disability is most likely related to aging, genetic propensity, and wear and tear from strenuous physical activities. The Board finds that the September 2016 opinion is the most probative evidence as to the etiology of the Veteran's low back disability. As the opinion was provided following examination of the Veteran and review of the claims file, and explained the rationale for the opinion, the Board finds the opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges that the Veteran's wife submitted a statement in April 2011 attesting that she met the Veteran in 1976, married him in 1980, and that he has had to use Doan's pills for back pain since she has known him. However, neither the Veteran nor his wife has shown they have specialized training sufficient to render medical opinions. 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). Thus, they are not competent to opine that the Veteran had a diagnosed low back disability during or shortly after service or an opinion as to the etiology of the currently diagnosed low back disability, as such matters require medical expertise. Accordingly, the Board finds the opinion of the VA examiner to be significantly more probative than the lay assertions of the Veteran and his wife. The Board acknowledges that a 2015 VA treatment record noted a problem list of low back pain since 1976. However, such is merely a recitation of a report by the Veteran as to the date of onset of back pain, and does not establish a diagnosed disorder as of that date or otherwise link a currently diagnosed low back disability to service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). As such, this report is afforded little, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In summary, a chronic low back disability was not shown in service or within the year following discharge from service, and the most probative evidence indicates the Veteran's current low back disability is not related to service. Accordingly, the claim for service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Headaches The Veteran asserts that his current headache disorder is a result of the above-mentioned October 1975 fall during service. He has alleged that he has had headaches since that time. As an initial matter, the Board notes that the Veteran was diagnosed during the course of the appeal with tensions headaches, as noted on the 2015 VA examination. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether a current headache disorder is related to service. Upon review of the record, however, the Board finds that the most probative evidence is against the claim. Service treatment records are negative for headaches. The records do reflect a brief loss of consciousness in October 1975. Full neurological workup was negative. Brain scan and skull x-ray were normal. At the separation examination he reported his health as good and on his May 1976 report of medical history, he denied experiencing frequent or severe headaches. The first medical evidence of headaches is an August 2006 private treatment report reflecting treatment for hypertension and noting that the Veteran denied any headaches like he was having previously. Thereafter, in 2007 he denied headaches. Although the Veteran and his wife allege that he has suffered from headaches ever since the blacking out incident in service, the Board does not find such assertions to be persuasive. In this regard, the Veteran specifically denied suffering from frequent or severe headaches on his report of medical history at discharge from service. Private treatment records dated in 2007 revealed no complaints of headaches or history of longstanding chronic headaches, although the records did address various other disabilities. A May 2007 and January 2010 history checklist reflected the Veteran denying migraines. Thus, while there is mention of headaches in 2006, the report of medical history at separation and subsequent post service medical evidence from 2007 to 2010 is against a finding that the Veteran has suffered from chronic headaches continuing since the 1975 incident. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). As there is no competent and credible evidence of headaches during service, competent evidence linking the current condition with service is required to establish service connection. However, the Board finds that the most probative evidence is against the claim. The Veteran underwent a VA examination in April 2015, at which time he was diagnosed with tension headaches. An opinion was obtained from that examiner in September 28, 2016, after review of the claims file. The examiner opined that the Veteran's tension headaches are less likely than not related to service, to include the black out event in service. The examiner explained that post concussive headache due head injury from vasovagal response is typically short-lived and improves over time with resolution or at least stability in headache condition at one year after the injury. Late development or worsening of head injury headache one year or more after injury is very unusual and not a generally accepted phenomena. The examiner stated that the evidence shows that the Veteran was released to full duty 72 hours after the injury consistent with the absence of significant residuals, and denied headache both on neurological follow up and separation examination 7 months after the injury in May 1976. The examiner further stated that the Veteran's tension headaches are most likely related to chronic sleep, sleep apnea, and anxiety issues which the Veteran is being treated for per VA treatment records. There is no probative medical opinion to the contrary. In summary, a headache disability was not shown in service or for years thereafter, and the most probative evidence indicates the Veteran's current headache disability is not related to service. Accordingly, the claim for service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364 (2001); Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for a low back disability is denied. Service connection for a headache disability is denied. ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs