Citation Nr: 1808022 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-17 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for lumbar spine degenerative disc disease with degenerative joint disease and retrolisthesis, foramen stenosis with radiculopathy, claimed as low back pain. REPRESENTATION Appellant represented by: Gentry C.M. Hogan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem North Carolina. A travel Board hearing before the undersigned Veterans Law Judge was held in March 2016. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Symptoms of lumbar spine degenerative disc disease with degenerative joint disease and retrolisthesis, foramen stenosis with radiculopathy, claimed as low back pain were not present in service and have not been continuous since service separation, and the current low back disability did not manifest to a degree of 10 percent within one year of service separation. 2. The evidence of record makes it less likely than not that the Veteran's currently diagnosed low back disability is related to disease or injury or other event in active service. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative disc disease with degenerative joint disease and retrolisthesis, foramen stenosis with radiculopathy, claimed as low back pain, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in May 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, where a veteran served ninety 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. In this case, a disease of the nervous system and arthritis, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. 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. For the showing of chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. III. Factual Background On a January 1986 Report of Medical Examination for enlistment, the spine and other musculoskeletal were normal. On a January 1986 Report of Medical History for enlistment, the Veteran denied any recurrent back pain. On a February 1989 service treatment record, the Veteran complained of lower back pain after pulling a sled. The examiner diagnosed strained lumbar muscles. The examiner indicated that there was no history of trauma to the area. On an April 2006 VA treatment note, the Veteran complained of low back pain. The Veteran reported that he experienced chronic back pain for years and that over the last few months, it became more severe and frequent. The Veteran noted that the pain started in his right lower back as a tightness and then it became sharp, running down his leg, that caused numbness and tingling in his feet. The Veteran indicated that he was unable to lay on his right side. The Veteran denied any bowel/bladder incontinence or lower extremity weakness. The Veteran noted that the pain was so severe that he had been unable to walk over the last day or so. On an April 2006 MRI of the lumbar spine, the images revealed a central protrusion at L5/S1 and prominence of tissue in the region of the right L5/S1 nerve root, which could represent a conjoint nerve root, inflamed nerve root or free disc fragment. On a May 2006 VA Outpatient Clinic New Patient Evaluation, the Veteran complained of lower back pain. The Veteran indicated that he had been experiencing lower back pain for years and that it had gotten increasingly worse over the past month. The Veteran reported that the pain was a 10/10 and that the pain radiated down his right leg. On an October 2009 VA Emergency Department Note, the Veteran reported right lower extremity pain. The impression was previously documented L5-L6 mild disc space narrowing and right sciatic pain. At a November 2009 VA Primary Care Initial Evaluation, the Veteran complained of lower back pain. The Veteran reported that the pain was primarily in his right buttock and running all the way down the back of his right leg. The examiner assessed severe, chronic, sciatica. At a December 2009 MRI, the Veteran reported a history of sciatica. The impression was left paracentral disc extrusion at L5-S1 with inferior migration of disc material and moderate spinal stenosis and small central disc extrusion at L4-5 with inferior migration of disc material. At a January 2010 VA Primary Care Note, the Veteran reported chronic sciatica and lower back pain. The Veteran indicated that he had lower back pain for years since service and that it had increased over the past three years. At a February 2010 VA Pain Medicine Initial Evaluation Note, the Veteran reported pain in his right buttock, radiating down right hip and leg. At a March 2010 VA Physical Therapy Consultation, the Veteran reported back problems dating back to his days in the service. The Veteran reported that the pain had severely increased over the past three years. The Veteran indicated that he had lower back pain that radiated down his right leg. The Veteran noted that he had been using a cane for about four months. The physical therapists assessed left paracentral disc extrusion at L-S1 with inferior migration of disc material and moderate spinal stenosis. At a February 2011 VA MRI, the impression was increased epidural soft tissue at L4-L5 resulting in increased canal stenosis. The examiner noted that the soft tissue was due predominantly to scar material and that there was a tiny disc component. On an April 2011 VA Spine examination, the Veteran reported that he had lower back pain for many years and that it exacerbated to the point of severe problems in 2005. The examiner diagnosed the Veteran with lumbar degenerative disc disease, degenerative joint disease with retrolisthesis, lumbar central canal and lateral foramen stenosis and radiculopathy. The examiner opined that the Veteran's lumbar spine condition was less likely as not (less than 50/50 probability) caused by or a result of any military related condition or military service. The examiner noted that the Veteran's military service suggested a simple lumbar strain without evidence of chronic issues. The examiner indicated that there was no record of lumbar spine issues until 2006. The examiner noted that there was a lack of records from the Veteran's discharge date of February 1992 to 2006. The examiner reported that the establishment of an initial injury beginning in military with establishment of a chronic condition is not found as the examiner did not find sufficient evidence or a trail of evidence to state the Veteran's present lumbar spine condition began in military service. At a March 2016 Board hearing, the Veteran reported that during service he was preparing to go on a drill exercise and they had to load up a tent, tent poles, stoves, and rations into a sled. The Veteran indicated that he was pulling the sled to attach it to the jeep vehicle and he felt like something tore in his back. The Veteran reported that the sled weighed between 80 to 200 pounds. The Veteran noted that he sought medical treatment in service but that his lower back did not get better. The Veteran reported that his lower back did not get better because he had to run daily and carry around a work sack. The Veteran noted that his lower back pain continued after service and that he started to have leg pain along with lower back pain. The Veteran's representative indicated that the Veteran used a cane at the hearing. IV. Analysis The Veteran contends that he injured his back in active service and that his current back disability is related to this in-service injury. He also maintains that he continued to experience back problems since his separation from service. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current low back disability first manifested many years after service separation and is not related to injury or event in active service. Service treatment records show that the Veteran injured his low back in active service in February 1989 while pulling a sled. A February 1989 service treatment record indicates that the Veteran strained his lumbar muscles while pulling a sled, and presented at the military clinic with complaints of lower back pain. The service treatment records do not show any medical treatment for the low back after February 1989. The Veteran chose to not undergo a separation examination prior to discharge from service. See February 1992 Medical Examination for Separation/ Retirement Statement of Option. There is no competent evidence of record showing a diagnosis of thoracolumbar spine arthritis or degenerative disc disease compensable to 10 percent or more within one year from service separation. The first evidence of a diagnosis of arthritis or disc disease of the thoracolumbar spine, substantiated by MRI, appeared in 2011, more than 19 years after service separation. Thus, presumptive service connection for lumbar spine arthritis and disc disease pursuant to 38 C.F.R. § 3.307(a) is not warranted. The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience chronic and continuous symptoms of a low back disability either during active service or continuously since service separation. The Veteran contends that he has had low back pain since the injury in active service. At the March 2016 Board hearing, he testified that he has had back pain since service. The Veteran, as a lay person, is competent to describe a firsthand event and to describe observable symptoms such as back pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds that the Veteran's credibility is undermined by the fact that his own statements concerning the back symptoms are inconsistent with the medical evidence. The service treatment records do not document chronic or recurrent low back symptoms. As discussed above, the Veteran sustained an injury to the low back in active service in February 1989 and he sought medical treatment. However, the service treatment records show treatment for the back injury only in February 1989 and there is no other treatment. The Board also finds that the service treatment records and the Veteran's statements generated at the time of active service are more probative than the Veteran's lay statements made years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). The service treatment records are contemporaneous to the time period of the claimed symptoms. The weight of the competent and credible evidence establishes that the Veteran was treated for back pain one time in February 1989, during active service. The record shows that the Veteran first reported having back pain in April 2006, when he sought medical treatment at VA. The April 2006 VA hospital report indicates that the Veteran reported having experienced chronic back pain for years and that over the last few months it became more severe and frequent. Thus, the Board finds that the weight of the competent and credible lay and medical evidence establishes that the Veteran did not have chronic and recurrent back symptoms in service and since service. Thus, service connection for a low back disability on a presumptive basis under 38 C.F.R. § 3.303(b) is not warranted. The Board finds that the weight of the competent and credible evidence establishes that the current low back disability first manifested many years after service separation and is not related to injury or other event in active service. The Veteran was afforded a VA examination in April 2011 and medical opinions as to the etiology of the current back disability were obtained. The April 2011 VA examination report indicates that the VA examiner reviewed the evidence of record and cited to the medical evidence and the Veteran's medical history pertinent to the low back in detail in the VA examination report. The examiner diagnosed the Veteran with lumbar degenerative disc disease, degenerative joint disease with retrolisthesis, lumbar central canal and lateral foramen stenosis and radiculopathy. The VA examiner opined that the Veteran's lumbar spine condition was less likely as not (less than 50/50 probability) caused by or a result of any military related condition or military service. The examiner noted that the Veteran's military service suggested a simple lumbar strain without evidence of chronic issues. The examiner indicated that there was no record of lumbar spine issues until 2006. The examiner noted that there was a lack of records from the Veteran's discharge date of February 1992 to 2006. The examiner reported that the establishment of an initial injury beginning in military with establishment of a chronic condition is not found as the examiner did not find sufficient evidence or a trail of evidence to state the Veteran's present lumbar spine condition began in military service. It is worth pointing out that the Veteran remained on active duty for approximately three years following his February 1989 episode of medical treatment for low back pain. There are no additional records of further treatment for low back pain. The Board finds the April 2011 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner comprehensively reviewed the claims folder and the Veteran's medical history in detail, considered the Veteran's report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinions. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner has the skill and expertise to render the medical opinions. See Black v. Brown, 10 Vet. App. 279, 284 (1997). As such, the Board finds the VA medical opinion to have great probative weight. The Veteran himself has related his low back disability to the injury he sustained in active service. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of arthritis or disc disease falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. There is no evidence that the Veteran has medical expertise or training. As discussed in detail above, the weight of the competent and credible evidence establishes no relationship between the Veteran's current low back disability and the injury he experienced during active service. The Board finds the weight of the competent and credible evidence shows that the lumbar spine degenerative disc disease with degenerative joint disease and retrolisthesis, foramen stenosis with radiculopathy, claimed as low back pain, did not manifest in service, first manifested many years after active service and is not related to active service. Thus, the Board finds that a preponderance of the evidence that is of record weighs against the claim for service connection for the low back disability, and the claim for service connection is denied. ORDER Entitlement to service connection for lumbar spine degenerative disc disease with degenerative joint disease and retrolisthesis, foramen stenosis with radiculopathy, claimed as low back pain, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs