Citation Nr: 1808628 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-32 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Susan Paczak, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1992 to March 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania. The Veteran presented testimony at a Board videoconference hearing in November 2014. A transcript of the hearing is of record. This matter was remanded for further development in June 2015 and September 2016. In a November 2017 rating decision, service connection for metatarsalgia status post surgery of the left foot was granted and a 10 percent rating was assigned. This action constituted a full grant of the benefits sought, and the claim for service connection for left foot disability is no longer open for appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. Upon service separation examination in March 1997, the Veteran reported that he had recurrent back pain; the examining doctor noted that the Veteran had mild lower back pain when standing for long periods and the Veteran had back pain on and off with boots and gear and the Veteran had not had any back problems that last six months; and examination of the spine was normal. 2. Post service, the Veteran sought medical treatment for lumbago and/or low back pain in August 1999, January 2000, July 2000, April 2002, December 2002, and in January 2008. 3. It is as likely as not that the lumbar spine disability to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the low back disability to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis have been 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, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 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). Where a veteran served ninety days or more of active service, and certain chronic diseases such as arthritis and organic diseases of the nervous system, 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, 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. With chronic disease as such 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 disease 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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. The Board finds that the evidence is in equipoise on the question of whether the lumbar spine disability to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis is related to active service.. The Veteran asserts that his current low back disability is related to active service. At the videoconference hearing before the Board in November 2014, the Veteran stated that throughout his military service, he had lower back pain. He stated that it would come and go and it was the worst when he was stationed in Bosnia during Operation Joint Endeavor and while he was stationed on Johnson Island. The Veteran stated that during those two periods of his military service, he was required to carry a lot of equipment on his back such as a gas mask, a cavalier, and a ruck sack, and he thought that the ruck sack put pressure on his lower back and it ended up damaging his lower back and the L4-L5 vertebrae. The Veteran stated that he noted having lower back pain at his ETS physical and the notation was that he often wore combat boots and he carried a lot of equipment and that was probably the cause of his back pain. See Board Hearing Transcript, pages 3-4. The Veteran started that throughout his life, his back has gotten worse and worse, and it got to a point finally where he couldn't tolerate it anymore, and he went and saw an orthopedic surgeon. He stated that he attempted to have chiropractic care and he also did physical therapy, and none of those things relieved his lower back pain or the numbness or tingling in his legs, so eventually the doctor spoke to him about surgery. He stated that he decided to go ahead and have the L4-L5 lumbar fusion done. The Veteran stated that after the surgery, the orthopedic surgeon told him that there was a substantial amount of scar tissue around his spinal cord where the vertebrae had been rubbing on his back for a long period of time. The Veteran indicated that prior to active service, he did not have issues with his back. Id. at pages 8-9. In a September 2013 notice of disagreement, the Veteran stated that he was treated several times for lower back pain in the military for which he was always given 1000 milligrams of Motrin, but no other evaluations or tests were ever done. He stated that he reported the lower back pain at his ETS physical, but never received an MRI or X-ray in order to determine whether there was a problem or not. The Veteran indicated that the low back disability was due to over exertion. He stated that he had an office job as a Military Police Investigator for the last 6 months of service and this was not very labor intense. The veteran stated that after service, shortly thereafter, he was treated by Dr. Conigliaro at the University of Pittsburgh Medical Center, and the treatments occurred in 1998, only a year after leaving military service. As a lay person, the Veteran is competent to describe observable symptoms such as pain and the onset of pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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). The Board finds that the Veteran's statement to be credible. His statements are supported by the service treatment records and the circumstances of his military service. Service treatment records show that on enlistment exam in January 1992, examination of the spine was normal. An August 1993 Occupational Health Surveillance Preplacement Form indicates that the Veteran was exposed the hazard of lifting. Upon service separation examination in March 1997, the Veteran reported that he had recurrent back pain; the examining doctor noted that the Veteran had mild lower back pain when standing for long periods, he had back pain on and off with boots and gear, and the Veteran had not had any back problems the last six months. Examination of the spine was normal. The Veteran separated from active service in March 1997. Post service, the Veteran sought medical treatment for lumbago in August 1999, January 2000, July 2000, April 2002, December 2002, and low back pain in January 2008. The January 2000 private medical record indicates that the Veteran reported that he has had some back problems recently and he called for a renewal of Tylenol 3 for back pain. The Veteran came in for an exam. He complained of low back pain in the past related to his job as a machinist where he does a lot of lifting. In past, the low back pain was treated with anti-inflammatory medications and exercise. He reported hurting his back four weeks ago and the diagnosis was muscle sprain. It was noted that a week ago, he lifted at work and hurt back. Physical exam revealed no palpable back tenderness. Straight leg raise was negative. The diagnosis was low back pain, chronic. Private records indicate that the Veteran reported that in December 2007, he was hunting and he slipped and fell on his back. A January 2008 private treatment record from the Veteran's orthopedic group, T.R.O.A., indicates that the Veteran complained of back pain and right leg pain for quite some time and the pain has gotten worse over the past year and month and half. MRI showed L4-5 spondylolisthesis grade 2 with significant foraminal stenosis. The record indicates that the Veteran has tried different treatment options and nothing seemed to give him much relief. Surgery was discussed and an L4-5 fusion with iliac crest bone graft and instrumentation was recommended. He underwent the surgery in April 2008. The post-operative diagnosis was L4-5 spondylolisthesis, isthmic, with L4 radiculopathy. The procedure performed was a lumbar laminectomy and decompression of L4 nerve roots and L5 nerve roots; instrumentation of L4 and L5, fusion of L4-5 level; harvest of iliac crest bone graft; and posterior lumbar interbody fusion with cages. Medical records dated in August 2016 indicate that the current diagnosis was post laminectomy syndrome, radiculopathy of the lumbar region, and spinal stenosis of the lumbar region. See also the VA examination report dated in July 2013 which shows diagnoses of low back strain resolved, lumbar spinal stenosis status post surgery, and Grade I spondylolisthesis at L4-L5. A March 2013 medical record indicates that the Veteran did well after his back surgery in 2008 until recently. There is competent and credible evidence that weighs in favor of the claim for service connection. The Veteran submitted medical opinions by his orthopedic surgeon, Dr. P. Smith. In a June 2015 statement, Dr. Smith stated that he treated the Veteran since January 2008. Dr. Smith stated that he became familiar with the Veteran's active duty medical history from March 1992 to March 1997 and he was aware that throughout the Veteran's military service, the Veteran constantly suffered from lower back pain especially when standing for long periods of time exceeding an hour. Dr. Smith noted that in 1999, shortly after separating from service, the Veteran was treated at UPMC for lower back pain (lumbago). Dr. Smith noted that after a thorough examination and MRI, L4-5 spondylolisthesis grade 2 with significant foraminal stenosis was detected. The Veteran underwent surgery in 2008 and he required a L4-5 fusion with iliac crest bone graft, and instrumentation. Dr. Smith stated that he found extensive scar tissue during the surgery and the Veteran has chronic pain due to his injuries and he may require further surgeries. Dr. Smith concluded that it was at least as likely as not that the Veteran's current condition of numbness in the left leg, lower back pain, and foraminal stenosis was caused during the time in military service. In a July 2017 statement, Dr. Smith, the Veteran's orthopedic surgeon, stated that he reviewed additional records in this matter including Dr. Conigliaro's office note dated January 10, 2000; the July 2013 VA examination report; the report from the VA examiner Dr. C. dated in August 2016; and a copy of the transcript of the hearing before the Board in November 2014. Dr. Smith stated that review of the medical records shows that the Veteran was seen in January 2000 for chronic low back pain and exersises were recommended. Review of the VA examination report dated in August 2013 indicates that the Veteran had a diagnosis of low back strain in 1997. Dr. Smith noted that the service separation exam report showed complaints of recurrent back and documentation that the Veteran had low back pain when wearing boots and gear. Dr. Smith indicated that the VA examiner noted that on exam, the Veteran had no loss of range of motion and he was neurologically intact; the VA examiner opined that the current back condition was less likely than not incurred in or caused by the Veteran's service injury or event. Dr. Smith noted that he also reviewed the August 2015 VA examination report and opinion; Dr. Smith noted that the VA examiner indicated that the Veteran's examination was not medically inconsistent with the Veteran's statement of describing functional loss over time. Dr. Smith noted that he also reviewed the Board hearing transcript. Dr. Smith noted that at the Board hearing, the Veteran testified that throughout his military service, he had low back pain and it would come and go at times, it was worse with when he was stationed in Bosnia, and he was required to carry equipment on his back including gas mask, cavalier, and ruck sack. Dr. Smith stated that after reviewing the medical records provided as well as his treatment notes, it was his opinion that the Veteran's back problems were at least likely than not related to the Veteran's service in the military from 1992 to 1997. Dr. Smith indicated that during that time frame, it is documented that the Veteran did complain of pain in his back. Dr. Smith stated that the Veteran's condition, L4-5 spondylolisthesis, began giving him symptoms specifically that of back pain as documented in the notes during his time in service from 1992 to 1997. Dr. Smith stated that it was during the time after service that the Veteran's symptoms worsened with time and eventually led for the need for surgical treatment. Dr. Smith indicated that although treatment as not necessary until years later, it was his opinion that the Veteran began to have symptoms from this condition during his timeframe in service and the Veteran's back problems were at least likely than not related to service. Dr. Smith stated that all of the statements have been made within a reasonable degree of medical certainty. In a November 2017 statement, Dr. Smith indicated that he reviewed the medical records regarding the fall the Veteran had while hunting in 2007. Dr. Smith stated it was still his opinion that the Veteran's back problems are at least as likely as not related to service that he provided in the military from 1992 to 1997 and that the fall in 2007 was not a major contributor to his longstanding back issues. The Board finds the medical opinions by Dr. Smith to have great evidentiary weight as the opinions reflect a review of the Veteran's medical history and examination and treatment of the Veteran's. Dr. Smith reviewed the Veteran's medical history and considered the Veteran's report of symptoms and the current diagnosis and medical findings before rendering the medical opinions. Dr. Smith pointed to the evidence upon which he relied in formulating the opinion. 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). The medical opinions are based on sufficient facts and data. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Dr. Smith, as an orthopedic surgeon, 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 medical opinions by Dr. Smith to have great probative weight. There is competent medical evidence that weighs against the claim for service connection. The Veteran was afforded VA examinations and medical opinions as to the onset and etiology of the low back disability were obtained. The July2013 VA examination report indicates that the Veteran had a diagnosis of low back strain in 1997; the VA examiner stated that the low back strain resolved without nerve, bone or joint involvement. There was a diagnosis of lumbar spinal stenosis status post surgery in 2008 and grade I spondylolisthesis of L4-L5 level by x-ray exam in 2013. The VA examiner examined that Veteran and concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the rationale was that the Veteran's low back pain/strain resolved without documented bone, joint, or nerve involvement on separation exam, and the Veteran was able to work in laborious jobs after military discharge. The VA examiner noted that the Veteran suffered an injury to his low back in December 2007 while hunting that led to the lumbar laminectomy with fusion surgery. The Veteran underwent an additional VA examination in August 2015. The VA examiner opined that the claimed low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that the rationale was that the Veteran served on active duty from 1992 to 1997. On his separation exam, there was a comment by the examiner that the Veteran noted on history he had low back pain when wearing boots and gear but he had no problems for 6 months and there was a normal back examination. The Veteran's service treatment records were silent for any evaluation, x-rays, or treatments for any back conditions and does not support the claim. The VA examiner concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred and/or caused by the claimed in-service back condition. In an April 2017 VA medical opinion, the VA examiner who conducted the 2015 VA exam, indicated that he reviewed the service records and the records are silent for any evaluation, treatment, or diagnosis of a low back condition. The Veteran reported to the examiner that he had low back pain because of wearing boots and gear but had no symptoms for 6 months prior to his separation physical. The examiner found a normal spinal exam. In review of the Veteran's medical records, the Veteran was found to have L4-L5 spondylolisthesis along with spinal stenosis and an associated radiculopathy and underwent a surgical repair which included a laminectomy and decompression of L4 and L5 nerve roots along with fusion of L4-L5 level. The VA examiner noted that it is also clearly documented that the Veteran worked as a machinist which is physically demanding and as the Veteran stated including standing all day at a machine and picking up 15 pound metal bars and loading them into the machine. The VA examiner noted that it was also documented at the 2013 VA examination that the Veteran reported while hunting in December 2007, he fell on his buttocks and developed low back pain with radiating symptoms down the right leg. The Veteran went to his PCP and was referred a private orthopedic surgeon. The VA examiner stated that there is no medical evidence to support that the Veteran had any chronic low back condition while on active duty or when he left active service. The Veteran's findings of spondylolisthesis, spinal stenosis and radiculopathy were years after his time on active duty and following a trauma in 2007. The VA examiner opined that the Veteran's current low back conditions to include spondylolisthesis and spinal stenosis with associated radiculopathy are most likely caused by the Veteran's trauma during a hunting accident in 2007, along with normal physiologic aging as well as a physically demanding job and was not caused by or aggravated by his time on active duty. On this record, the Board finds that the competent and credible evidence is in equipoise as to whether the Veteran's lumbar spine disability to include to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis first manifested in service, has been recurrent since service, and still exists. There is competent and credible evidence that weighs in favor of the claim. There is competent and credible evidence that the Veteran was required to perform lifting in active service and this lifting was assessed to be an occupational hazard. There is competent and credible evidence that the Veteran first began to experience low back symptoms in active service and these symptoms continued after service separation. There is competent and credible medical evidence that the Veteran's current lumbar spine disability first manifested in active service. In resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's lumbar spine disability to include to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis is warranted. The claim is granted. ORDER Entitlement to service connection for lumbar spine disability to include to include lumbar strain, L4-5 spondylolisthesis grade 2, and spinal stenosis is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs