Citation Nr: 1806817 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-14 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability, to include degenerative disc disease and degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from April 1955 to April 1958. This matter comes before the Board of Veterans' Appeals (Board) from May 2009 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing has been associated with the claims file. This matter was first denied by the Board in February 2015, after which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court issued a memorandum decision which vacated the February 2015 Board decision and remanded the matter to the Board for readjudication. Thereafter, this matter was remanded by the Board in December 2016 and July 2017 for additional development consistent with the June 2016 Court decision. As discussed further below, the Board finds that there has been substantial compliance with prior remand directives, and the matter is properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT A low back disability, to include degenerative disc disease and degenerative joint disease of the lumbar spine, did not have its onset during active service, arthritis was not manifested within one year of service discharge, and the low back disability is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include degenerative disc disease and degenerative joint disease of the lumbar spine, have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Neither the Veteran nor his representative has raised any issues with the duty to notify. 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."). To the extent that the January 2018 post-remand brief submitted by the Veteran's representative asserts that the August 2017 VA addendum opinion is inadequate, the Board finds such argument to be without merit. For example, the representative stated that the rationale for the VA medical opinion was in conflict with the holding in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), as the Veteran is competent to attest to his ongoing problems and "in the absence of a finding by the Board that he is not credible, his assertions hold more evidentiary weight than the inadequate VA[ examination]." As will be explained in more detail below, the Board finds the Veteran's statements as to the onset of his low back disability to be not credible. Thus, the August 2017 addendum opinion properly addressed the directives of the July 2017 Board remand instructions and was based upon consideration of the Veteran's claims file, the Veteran's reported history, and all relevant facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There was substantial compliance with the Board's prior remand instructions. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Service Connection - Low Back Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl, 21 Vet. App. at 124-25; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claims entitlement to service connection for a low back disability related to active service. Service treatment records do not document the onset of a chronic low back disability or an actual injury. Instead, the service treatment records show that the Veteran had a complaint of pain in the lumbosacral area. For example, a handwritten service treatment record dated September 7, 1957, notes that the Veteran denied any previous illness. He reported that the prior night, he developed severe headache and generalized aches and pains. He stated that his entire body hurt. The examiner wrote that in the morning, the Veteran reported weakness in his right upper extremity and the inability to move his right arm. The examiner stated that the Veteran's temperature was 102 degrees. His heart, lungs, and abdomen were normal. Upon physical examination, there was tenderness in the Veteran's lumbosacral area and some limitation of motion in his right lower extremity, which the examiner noted that the Veteran moved slowly and carefully, but would not raise from the bed. There were no pathological reflexes. The neck was supple and lungs were both negative. The examiner noted that the Veteran had what appeared to be an early acute and [illegible] rhino pharyngitis. Spinal tap showed "crystal clear liquid." The Veteran was hospitalized for three days at that time. On September 10, 1957, the examiner noted that the Veteran reported generalized aches but no definite weakness or paralysis. He wrote that the Veteran had no complaints on this date. Physical examination was "Normal." The examiner attributed the symptoms to an acute viral infection. The January 1958 Report of Medical Examination shows that clinical evaluations of the spine and lower extremities were normal. Under "Significant or Interval History," the examiner noted there was "No significant history." The report showed that the Veteran had been assigned all 1's in the Physical Profile Serial of PULHES. P stands for physical capacity or stamina, U stands for upper extremities, L stands for lower extremities, H stands for hearing and ears, E stands for eyes, and S stands for psychiatric. The 1 under P and L represents a high level of fitness for physical capacity or stamina and lower extremities. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Board finds as fact that there was no injury to the low back during service. There was tenderness to the lumbosacral spine in September 1957, but such was not the result of an injury to the Veteran's low back versus part of the viral infection that was diagnosed at that time, when the Veteran reported body aches throughout his body. The September 1957 service treatment record was detailed, and if the Veteran had sustained an injury to his low back, it likely would have been documented in the record. Post-service treatment records from September 1967 document that the Veteran was involved in an automobile accident, where he sustained contusions to the chest, left knee, right ankle, and posterior neck; the examining physician specifically noted that there was no clinical evidence of a bone injury, and multiple x-rays failed to reveal any bone injury. The examiner noted that besides the right knee, the Veteran "had no complaints." A September 1971 VA Medical Certificate and History showed the Veteran reporting low back pain and radiation down the right leg for one year. The examiner wrote, "H[istory of] acute accident 1967." Such wording tends to establish that the onset of the Veteran's low back pain was years after service discharge. Arthritis was first documented more than 10 years following service discharge, which tends to establish that a post service low back disability did not have its onset in service. The Veteran has provided September 2004, January 2005, and July 2011 statements from his treating VA physician that link his current low back disorder to his reported fall and resulting back injury during active service. Additionally, in September 2005, a separate VA examiner concluded that the Veteran's disc disease was as likely as not the cause of his low back pain that originated in 1957. Significantly, these nexus opinions were largely based on the Veteran's lay history regarding an in-service back injury, and as discussed further below, the Veteran's lay statements are accorded no probative value given their inconsistency. Again, the time when the Veteran had tenderness in his lumbosacral spine is documented in the service treatment records, and a "fall" of some sorts is not documented in the service treatment records. This is why the Board finds that these opinions are based on history reported by the Veteran. More importantly, none of these nexus opinions were supported by a reasoned rationale; therefore, they are of no probative value in the context of the Veteran's claim, as they are based on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A June 2016 Memorandum Decision from the Court pointed out that the prior February 2015 Board denial prior relied upon inadequate VA opinions obtained in February 2007 and May 2007 that failed to address favorable evidence regarding the Veteran's claim; specifically, the September 1957 service treatment record which noted the Veteran presented with "tenderness in LS (presumably lumbosacral) area." Following a remand by the Board in December 2016, a VA examiner opined in January 2017 that the Veteran's current low back disability was less likely than not incurred in or related to active duty. The examiner concluded that a post-service 1968 motor vehicle accident resulted in an injury to the Veteran's back, which had progressed over time due to multiple additional injuries to his current degenerative disease of the lumbar spine. Significantly, however, the VA examiner failed to address the September 1957 service treatment record as directed by the Court and the Board; therefore, the matter was again remanded by the Board in July 2017 for an adequate addendum opinion. Thereafter, VA obtained an additional addendum opinion in August 2017. At that time, the same VA examiner again reviewed the Veteran's entire claims file, including service treatment records. Significantly, the examiner properly considered the September 1957 service treatment record which noted tenderness of the Veteran's lumbosacral area; however, he stated that tenderness of the back was not specific of any condition and noted that the reported tenderness was self-limiting and resolved without sequela or any finding that would suggest a future chronic condition. Additionally, the examiner noted that the Veteran's lumbar spine disability first manifested a significant time period after his active duty; as such, it was less likely than not related to active service. The Board finds that the December 2016/August 2017 VA opinion is entitled to great probative weight as it was based upon a thorough review of the claims file and properly considered the September 1957 service treatment record documenting tenderness of the Veteran's back, as discussed within prior Court and Board remands; moreover, it is well supported by a reasoned rationale. See Nieves-Rodriguez, supra. The Board has thoroughly considered the lay statements of record, which are probative evidence insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that lay evidence of record asserts that the Veteran's current low back disability is related to his active service, such statements are of little probative value given the Veteran's lack of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, as discussed in detail below, the Veteran's lay statements in support of his claim are of no probative value given their internal inconsistency over time. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). For example, the Veteran's reports as to how long he was hospitalized during active service have varied. For example, in February 1994, he testified that he was hospitalized between two weeks to one month, but in July 1999, he reported a one-week hospitalization. These statements are inconsistent with one another and with service treatment records, which document that the Veteran was hospitalized for three days after which he was discharged to duty, and there were no other complaints related to his back for the remaining four months of service. A February 1994 statement from the Veteran's mother reports that the Veteran recuperated for two weeks at her home following his hospitalization is also contradicted by service treatment records. For example, if the Veteran had been hospitalized for two weeks to one month and had to recuperate at his mother's home for two weeks, it would seem likely that the separation examination, which was performed approximately four months later, would have documented such a significant history. As noted above, the examiner wrote, "No Significant History" and the Veteran was assigned high levels of fitness at service discharge for all six part of the PULHES profile. The findings made in the separation examination tend to establish that the September 1957 incident was not something that involved a long hospitalization and two weeks of recuperation. Additionally, the Veteran has provided inconsistent statements as to cause of the onset of his back pain. For example, in his May 1969 application for VA benefits, the Veteran reported the onset of his back as having been in 1956. In April 1974 and February 1975, in connection with a claim for Social Security Administration (SSA) disability benefits, when asked what illness or injury the Veteran was claiming, he wrote an auto accident that involved the "neck, head, face, back + limbs" in one application and "Chest and back," in the other. When asked, "When did your illness or injury first bother you," in both applications, the Veteran wrote March 1972. The Veteran was asked in those applications if he had been hospitalized for his illness or injury, and he wrote March 1972 in both of them. The Board notes there was no documentation of in-service hospitalization at the time of the SSA application-only the 1972 hospitalization. In March 1986, the Veteran wrote that he injured his back when exiting a truck during service. In September 2005, the Veteran wrote that he fell into a ditch in service. In February 2007, he reported injuring his back when he jumped down from a truck in service. In May 2007, he reported he injured his back when he jumped off a truck and landed on a drain and having a sudden onset of low back pain while in service. In August 2011, he reported he jumped off a truck and fell into a ditch. These statements are inconsistent, particularly between what the Veteran submitted to VA (onset in service) and what he submitted to SSA (onset in 1972), and the Board finds as fact that the Veteran's allegation of an injury during service to be not credible. The Board concedes he complained of tenderness in his low back, but there is no documentation of an in-service injury to his low back. The Board accords the service treatment records high probative value, as the documentation of the symptoms the Veteran experienced in September 1957 were made contemporaneously with the time period in question. The clinical findings are detailed and do not document the Veteran falling and injuring his low back. The Veteran has also provided inconsistent statements as to when he was first treated following discharge from active service. For example, in his May 1968 application for VA benefits, he reported that he was treated in 1956 and not again until 1967 (a period of 11 years). In signing the application, he certified that the statements he made in the application were true and complete to the best of his knowledge and belief. In February 1975, the Veteran reported that his back first bothered him in March 1972. In February 1994, he testified that he was first treated for his back following service discharge in 1968 (a period of 12 years). However, in July 1999, he claimed he was first treated for low back pain approximately two years after service discharge in 1960. Such statements are again internally inconsistent as well as inconsistent with the other evidence of record, including post-service treatment records which document the Veteran's first post-service complaint regarding his back following a 1968 motor vehicle accident. The fact that the Veteran's first documented complaints of back problems occurred 10 years following his discharge from active service is probative evidence that tends to weigh against his claim of developing a low back disability during service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted above, arthritis is a chronic disease under 38 C.F.R. § 3.309(a). However, the Veteran's arthritis was not diagnosed until more than 10 years after the Veteran was discharged from service. For the reasons laid out above, the Board does not find that the Veteran experienced chronic symptoms of arthritis in service. As a result, there is no presumption the Veteran's low back disability is service connected. In conclusion, the most probative evidence of record weighs against the Veteran's claim of entitlement to service connection for a low back disability. There is no probative evidence of record that the Veteran's current back disability first manifested within one year of service discharge, and the preponderance of evidence weighs against a finding that his current back disability is otherwise related to active service. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability, to include degenerative disc disease and degenerative joint disease of the lumbar spine, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs