Citation Nr: 1815016	
Decision Date: 03/09/18    Archive Date: 03/19/18

DOCKET NO.  13-06 521	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a lower back disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

As a member of the Texas Army National Guard (TXARNG) the Veteran served on active duty from April 1996 to January 2000, January 2002 to October 2002, and from March 2005 to June 2006. His service included a tour in Afghanistan.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefit sought on appeal.

The Veteran presented testimony at a Board hearing at the RO in April 2015 before the undersigned. A transcript of the hearing is associated with the claims file

A September 2015 Board decision, in pertinent part, denied the claim, and the Veteran appealed to the United States Court of Appeals For Veterans Claims (Court). In September 2016, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion For Remand (JMR) (09/28/2016 CAVC, p. 48). In an Order also dated in September 2016, the Court granted the JMR, vacated the September 2015 Board decision in part, and remanded the case to the Board for further appellate review consistent with the JMR.

Pursuant to the Court remand, in May 2017, the Board remanded the case for additional development.


FINDING OF FACT

The weight of the competent evidence of record is against a finding that a currently diagnosed low back disorder had onset in active service or within one year of active service, or is otherwise causally connected to active service.

CONCLUSION OF LAW

The criteria for an award of service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307(a)(3), 3.309(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Prior to issuance of the April 2008 rating decision, via a January 2008 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. Further, as noted in the Introduction, the Board has twice remanded the case for additional development. A discrepancy in the September 2014 VA examination was cured while the case was on remand in 2016. There are no current assertions of inadequacy or irregularity in the most recent examination. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Governing Law and Regulations

Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Service connection may 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).

Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 
708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether an appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011).
 
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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Background

At his April 2015 Board hearing, the Veteran testified that he injured his back when he was working with a taskforce. He did not recall the year except to state that it occurred more than 15 years earlier. He stated that he was inspecting an 18-wheeler for drugs and contraband. When he looked underneath the vehicle, he may have twisted his back too far and he began experiencing pain. He stated that when he was deployed to Afghanistan, he had to engage in a lot of heavy lifting, which aggravated the pain. He testified that that there was no medical facility where he was (that he drove 90 minutes each way) and that he was just given Ibuprofen anyway. He stated that he started seeking treatment with VA in 2006, and that he was discharged from service in 2008 (04/22/2015 Hearing Transcript, p. 3-11).

The service personnel records refect that the Veteran was separated from active service in June 2006 (not 2008) (09/21/2015 DD 214, 1st Entry). Moreover, the Veteran, when he filed his June 2006 claim for knee and shoulder disabilities, stated that he left active duty in June 2006. He was discharged from the TXARNG in July 2008 (01/24/2018 DPRIS, p. 45). Hence, the Board infers that is the event to which the Veteran meant when he testified that it was in 2008. 

STRs reflect that a December 1985 chest x-ray showed minimal scoliosis upon enlistment (08/16/2007 STR-Medical, 1st Entry, p. 25). 

STRs dated in October 1997 note the Veteran's reports of low back pain of 2-3 weeks duration. It occurred during the inspection of a tractor trailer. Physical examination revealed moderate rigidity with mild spasms to L5-S1; full range of motion with increased pain on bending and twisting; no tenderness to palpation; and, neurovascular was intact, and deep tendon reflexes were normal. He was assessed with low back pain, given stretching exercises, and put on light duty for two weeks. The Veteran was to return if his symptoms increased. There is no record of any follow-up treatment. Id., 2nd Entry, p. 71. 

The Veteran completed Reports of Medical Histories in June 2001 and December 2001. Each time, he denied swollen or painful joints; recurrent back pain or any back injury; and arthritis, rheumatism, or bursitis. In a January 2002 Pre-Deployment Health Assessment, the Veteran stated that he was in good health. However, he did raise concerns about right knee pain. There was no mention of any back symptoms. 

In March 2005, the Veteran completed a Pre-Deployment Health Assessment in which he stated that he was in good health (although the Board notes that he filled in the circle corresponding to "fair" health due to non-back-related complaints). 

In November 2005, the Veteran reported left upper back pain of one day's duration. It was noted that he had an upper respiratory infection. He was assessed with upper back pain that the examiner suspected was secondary to coughing (8/16/2007 STRs, 1st Entry, p. 54). 

In a May 2006 Report of Medical Assessment, the Veteran stated that compared to his last medical assessment, he had pain in both legs when standing too much or when climbing, and that he had pain in his left shoulder that ran down his arm. There was no mention of back pain. In his May 2006 Post-Deployment Health Assessment, he denied having back pain at the time of the assessment or at any time during his deployment. The Board notes that he checked "yes" for several other symptoms (Id., p. 42). 

Post service treatment records reflect that the Veteran began treatment at VA in 2006; however, these records fail to reflect complaints of back pain or treatment for pack pain, although he sought treatment for numerous other disabilities, including the shoulders, knees, headaches, psychiatric disability, obstructive sleep apnea, and dermatitis. 

A November 2011 x-ray examination report notes normal vertebral alignment with no compression fracture or subluxation seen. There was no instability on flexion or extension views, and there was mild disc space narrowing and osteophytosis present at L2-L3, L3-L4 and L4-L5 (07/24/2013 CAPRI, p. 101). The remaining levels appeared preserved. There were no soft tissue abnormalities. The examiner's impression was degenerative changes of the lumbar spine, with no evidence of instability. A December 2011 treatment report reflects paraspinal tenderness, and normal flexion and extension. He was assessed with chronic low back pain with mild DJD changes with no radiculopathy symptoms (Id., p. 137-139). 

The Veteran underwent a VA examination in May 2014 (05/29/2014 C&P Exam, 7th Entry). The examiner reviewed the claims file in conjunction with the examination. The Veteran reported chronic intermittent low back pain with periodic exacerbations (3 to 4 per month) with 10/10 pain radiating from his lower back to both legs above the knee. He stated that the pain began in 1997 and required rest and light duty for two weeks. The examiner noted that November 2011 x-rays were consistent with degenerative changes or mild disc space narrowing and osteophytosis L2-L3, L3-L4 and L4-L5. Following an examination, the examiner diagnosed intervertebral disc syndrome (IVDS). 

The May 2014 VA examiner opined that the Veteran's back disability was at least as likely as not incurred in or caused by service ((05/29/2014 C&P Exam, 12th Entry). His rationale was that the Veteran had a history of an acute episode of back pain in 1997 followed by recurrent discomfort and subsequent episodes of exacerbation. Moreover, the November 2011 x-rays were consistent with degenerative changes or mild disc space narrowing and osteophytosis L2-L3, L3-L4 and L4-L5. 

Upon receipt of the May 2014 examination report, however, the RO noted that the examiner did not comment on the 1985 x-ray report showing minimal scoliosis (09/15/2014 VA 21-2507a). Hence, the RO obtained another VA medical opinion in September 2014. The examiner reviewed the claims file and concluded that it was less likely than not that the Veteran's current low back disability was incurred in or caused by an in-service injury. He noted that the Veteran was treated for back pain in October 1997 and had been prescribed conservative care. He also noted the Reports of Medical Histories, as well as Pre-Deployment and Post-Deployment Health Assessments in which back complaints were absent or were specifically denied. He noted a November 2005 complaint of back pain that was thought to be secondary to coughing (due to an upper respiratory infection). He noted a subsequent medical assessment in May 2006 that was silent for back complaints. Finally, he noted that the post service treatments records include a list of 13 active problems that do not include a back disability. He opined that there was overwhelming evidence that the Veteran did not seek care after 1997 and that evidence of structural changes did not occur until 2011. He noted that all the aforementioned records failed to note scoliosis. Consequently, the issue of whether the Veteran's scoliosis was aggravated was moot.

The consensus of the parties in the earlier noted JMR was that the September 2014 examination report reflected the Social Security Number of another Veteran. Hence, there was a likelihood that the examiner based the negative nexus opinion on an incorrect medical history. Hence, as noted, the Board remanded for another examination. The examination report (08/11/2017 C&P Exam) reflects that the examiner conducted a review of the Veteran's claims file and his electronic records. The examiner provided a full explanation of the condition of scoliosis and observed that a specific scoliosis series of x-rays is needed to accurately determine whether scoliosis is present or absent, since the deformity is a 3-dimensional rotational deformity. As a result, it cannot be determined via a chest x-ray, which was the imaging taken in 1985. Based on his review of the Veteran's records and the results of the examination, the examiner opined that it was not at least as likely as not that the Veteran's currently diagnosed low back disorder had onset in active service, or is otherwise causally connected to active service, to include the one-time October 1997 event noted in the STRs.

The examiner noted that the Veteran's records were silent until the 2011 finding. Those findings demonstrated mild degenerative changes 5-years, 5-months, 13-days after the Veteran's separation from active service, and no nexus with active service was noted. The examiner noted that lumbar spondylosis results from wear and tear, and that it is a normal part of the aging process. While repetitive bending and heavy lifting can aggravate the condition, the main cause is aging; and, arthritis is the most common cause of spinal stenosis. The examiner noted further that the Veteran's STR's document a one-time complaint of lower back pain in 1997. He was evaluated and treated with no documented follow-up evaluations or treatments, which suggest that his symptoms resolved completely. He did not seek additional assessment and/or treatment for a lower back condition while on active duty; and, post-deployment assessments were silent for additional injury and/or aggravation of his lower back 08/11/2017 C&P Exam, p. 1-2).

Discussion

VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137.

The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1).

For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability:

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322.

On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096.

In this case, a December 1985 chest x-ray showed minimal scoliosis upon enlistment. Typically, this would be viewed as a defect noted upon entry. However, from reviewing the record as a whole, including a September 2014 VA examination finding that the Veteran does not have scoliosis, the Board must conclude that the notation on entry was erroneous. Scoliosis is an abnormal, sideways curvature of the spine. The only evidence that speaks to this issue is the November 2011 MRI, which showed normal vertebral alignment of the spine with no compression fracture or subluxation seen. Consequently, the existence of current scoliosis has not been found. Given the absence of objective evidence, service connection for scoliosis must be denied. The Board believes that the Veteran's lower back disability is more aptly characterized as degenerative joint disease (which was not shown prior to service).

Concerning the legal requirements for service connection set forth earlier in this decision, the Veteran has established the first element, as there is no doubt that he has degenerative joint disease in his lower back. The evidence of record also demonstrates the presence of the second element of service connection, an in-service event. The STRs reflect that the Veteran reported a 2-3 week history of low back pain in October 1997. Nonetheless, it is the third element of service connection in which the Veteran's claim falls short. In support of his claim for service connection, he states that he has had back pain since service. He is fully competent to describe the symptoms of his back pain. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). However, while competent, his testimony still must be tested for accuracy and reliability.

In this case, the Veteran's assertions are inconsistent with the statements he made in reports of medical histories and other health assessments made during service. Specifically, the Veteran denied recurrent back pain or any back injury in June 2001 and December 2011 Reports of Medical History. He raised concerns over right knee pain in a January 2002 Pre-Deployment Health Assessment, but failed to mention any back pain. In November 2005, he reported upper back pain of one day's duration. This report does not substantiate the Veteran's claim inasmuch as it was a complaint of upper back pain (not lower); it specifically noted that the pain began the previous day (and had not been continuous since October 1997); and it was ultimately linked to coughing due to an upper respiratory infection. Further, in medical assessments dated in March 2005 and May 2006, the Veteran failed to note back pain (though he reported several other symptoms, to include of his shoulder and knees). In light of this evidence, the Board finds that the weight of the evidence is against the Veteran's assertion of continuous symptoms. There is also the fact that the evidence shows that no chronic disease was diagnosed at separation from active service or manifested at least to a compensable degree within one year thereof. Pain alone is not an entity to which service connection may attach. There must be a diagnosed underlying disorder associated with the pain. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) ("[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") Hence, service connection on the basis of continuous symptoms also fail. See 38 C.F.R. § 3.303(b).

As noted above, an award of service connection based on continuity of symptomatology is not warranted here.  Moreover, the weight of the competent medical evidence is similarly against the claim.  Indeed, the findings and opinion of the examiner at the August 2017 examination are set forth above. The examiner reviewed the claims file, considered the Veteran's lay reported history, and provided a full rationale for the opinion. Hence, the Board finds it highly probative and attaches significant weight to it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). To the extent that the Veteran may personally opine that his currently diagnosed lumbar spine degenerative joint disease is causally connected to the events noted in the STRs, the Board acknowledges that lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet.App. at 435; Jandreau, 492 F.3d at 1377 n. 4. The Board makes this determination on a case-by-case basis. In this case, the Board finds that opining on the etiology of degenerative joint disease of the lumbar spine, falls outside the realm of common knowledge of a lay person and requires medical training. See id.; see also 38 C.F.R. § 3.159(a)(1). There is no evidence that the Veteran has medical training. Hence, any statement by him that indicates an opinion as to etiology for his degenerative joint disease are not competent and therefore lack probative value.

In light of all of the above, the Board finds that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).

In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to service connection for a lower back disability is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs