Citation Nr: 1817586 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-24 769A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran had active service from July 1963 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in New York, New York. FINDINGS OF FACT The Veteran's current low back disability did not manifest during, or as a result of, active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that in a January 2015 statement, the Veteran's representative asserted that the September 2012 VA examination was too stale for rating purposes and must be redone. However, the claim before the Board is one for service connection and the Board finds that the VA examination report is adequate because the conclusions are based on clinical evaluations, interview of the Veteran, and review of the Veteran's medical history. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Analysis The Veteran contends that his low back disability is related to injuries to his back and parachute jumps during active military service. See May 2011 claim. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the evidence of record, the Veteran has a current diagnosis of degenerative post-surgical changes of the lumbar spine as evidenced by a March 2010 private x-ray. The Veteran also has the current diagnoses of post laminectomy-instrumentation-fusion pain syndrome, lumbar spinal and neuro foraminal stenosis and mild cord impingement as evidenced by the September 2012 VA examination. The Veteran's DD-214 shows that he is in receipt of the Parachutist Badge. The Veteran's service treatment records also show treatment for low back complaints. Therefore, the Veteran's claim turns on whether his currently diagnosed low back disability is related to his military service. In this regard, a February 1964 clinical record shows that the Veteran was admitted for a strain in the low back area. The Board notes that the treatment record is otherwise illegible. An x-ray report shows that multiple views of the lumbosacral spine were of poor technical quality. There was a slight positional scoliosis of the lumbar spine with concavity to the right. The physician noted no gross evidence of compression fracture. A March 2, 1964, physical profile shows that the Veteran was placed on a physical profile due to a low back strain. It was noted that the Veteran was to return to daily physio-therapy as an outpatient until further instructed. A March 12, 1964, service treatment record noted that that the Veteran was hospitalized for back pain with no fracture. It was noted that the Veteran missed his PT appointment and was now unable to sleep. The Veteran was given a prescription and was told to keep his orthopedic clinic appointment on March 19. A March 19, 1964, orthopedic clinic treatment record shows that the Veteran was noted as having mild tenderness. It was noted that he would return to PT for extension exercises, heat and ultrasound. It was noted that the Veteran had minimal spasms. The Veteran was instructed to return to the clinic in two weeks. An April 9, 1964, orthopedic clinic treatment record shows that the Veteran's pain was about gone; he was discharged and told to return as needed. A January 15, 1965, service treatment record shows that the Veteran fell while carrying garbage cans landing on the sacroiliac region. It was noted that the Veteran had had similar back distress. The Veteran was prescribed hydrocollator packs and ultrasound PT. No physical symptoms were noted with the exception of favorable positive straight leg rising. Another January 15, 1965, service treatment record shows that the Veteran was prescribed a hot pack with medications to low back region. A January 19, 1965 service treatment record shows that the Veteran was being treated for either low back strain or coccygeal trauma. It was noted that the Veteran was not ready for Recondo School at the time of treatment. An undated report of medical examination for Recondo School shows that the Veteran's spine and other musculoskeletal were noted as abnormal. It was noted that the Veteran was presently being treated for a lumbosacral sprain versus coccygeal trauma from a recent fall. The physician noted that it was felt that the Veteran was not presently fit for Recondo training. The physician recommended post ortho evaluation. An October 1965 x-ray report shows that the Veteran had tenderness to the coccyx. No significant abnormality was noted. A May 21, 1966, service treatment record shows that the Veteran injured his low back in a fall that morning. It was noted that the Veteran had pain in the low back (sacroiliac) care of bending and that he was unable to flex forward. The Veteran was diagnosed with a low back sprain. The Veteran was prescribed light duty, medication and exercise. The June 9, 1966, separation report of medical history shows that the Veteran denied arthritis or rheumatism, bone joint or other deformity. When provided with an opportunity to list any illness or injuries affecting him that had not been noted already, the Veteran reported having broken his right ankle, but made no mention of his back. The Veteran's June 9, 1966, examination upon separation includes a "normal" clinical evaluation of the Veteran's spine and musculoskeletal system. A July 20, 1966, statement of medical condition shows that the Veteran reported there had been no change in his medical condition since his last medical examination on June 9, 1966, with no exceptions. The record contains no records of treatment or lay statements pertaining to the Veteran's back dated from 1966 to 2009. The Veteran sought treatment for his back in June 2009. A June 30, 2009 letter from Dr. A.M.C. indicated that the Veteran stated he was "generally well" until February 2009 when he developed left low flank pain and some left lower extremity pain and weakness. It was noted that he had some epidural injections which were really helpful for several months then in May 2009 the pain returned but more so on the right than left. On the second page of the letter, Dr. A.M.C. stated that the Veteran started having a problem in February 2009. An August 2009 private treatment record shows that the Veteran had back surgery. In a June 2011 statement, a private physician Dr. B.R noted that the Veteran was followed in his office an as outpatient as well as seen by him for inpatient consultation on several occasions for pain management for the period from 2009 to the present. Dr. B.R noted that the Veteran was treated for lumbar stenosis and radiculopathy, and indicated in a handwritten note that the Veteran's injuries and conditions are causally related to his service injuries as a paratrooper. The Veteran appeared for a VA examination of his spine in September 2012. The September 2012 VA examiner reviewed the Veteran's prior medical history, noting the Veteran's in-service and post service treatment for his back. At the hearing, the Veteran reported episodes of low back pain since service. After interview of the Veteran, review of the record and examination, the VA examiner concluded that the Veteran's current back disability was less likely than not incurred in or caused by his in-service injuries. The examiner recognized that the Veteran's service treatment records note several occurrences of back pain and treatment; however found it clinically significant that there was no mention of back problems at his separation examination in 1966. Indeed, as noted above, the Veteran's separation examination included a "normal" clinical evaluation of the Veteran's spine. The examiner also stated that although the Veteran reported back pain and treatment by orthopedists and chiropractors since separation from service, no reports of back related treatment are noted until 2009, 40 years after discharge from service during which the Veteran had a productive career as an electrical contractor. The examiner stated that therefore, without additional evidence of immediate post-service back treatment, it was his and the orthopedic attending physician's opinion that it is less likely than not that his present condition was related to military service. On his May 2013 notice of disagreement the Veteran reported that he has been seeing a doctor for his back for several years. He reported that he only filed a claim recently when his doctor mentioned that the original injury to his back could have occurred while he was on active military duty and he could be eligible for VA benefits. The Veteran reported that at no point in time was there any doubt that his back pain began as a result of any other trauma to his back other than what was sustained while on duty. The Veteran reported that his back problem has persisted throughout his adult life after discharge until the problem manifested itself to the point of requiring surgery in August 2009. The Veteran reported that his doctor at the time has stated that this type of back injury could very well have been attributed to his service time of parachute jumping. The Veteran asserted that even though this problem was not as severe at the time of discharge does not mean it did not cause the problems that have persisted for years. The Veteran reported that over his adult life he has been treating this problem with EP injections, medication and chiropractic procedures. In a February 25, 2014 statement, Dr. A.M.C., indicated that the Veteran underwent complex spinal reconstructive surgery in 2009. He noted that the Veteran has been under his care since then. The examiner noted that this was done in August 2009 and since that time he has recovered nicely but continues to have intermittent problems. Dr. A.M.C. noted that it has come to his attention that the Veteran sustained injuries to his lower back while serving in the Army in 1966 approximately. Dr. A.M.C. noted that there were records that he reviewed which show that he had injury to his lower back during service, treated with various types of therapy. Dr. A.M.C. then speculated that the Veteran's lumbosacral trauma back in that time certainly "could have" begun the onset of back problems that persisted and intensified over the years, ultimately leading to the requirement of spinal surgery. In a February 27, 2014 statement, a private physician, Dr. M.R.D., noted that the veteran is a patient of his who states that he had an injury to his back while paratrooping when he served in the US Army. Dr. M.R.D noted that in 2009 the Veteran had a spinal fusion, and stated that it "may be possible" for that this injury could be a contributing factor for his need to have gone for surgery. On his July 2009 VA Form 9, the Veteran asserted that there was no doubt that the back pain and subsequent lower back issues originated from injuries sustained while in service. The Veteran asserted that medical records show injuries reported while in service to his back and certified physicians have stated that those injuries cannot be dismissed as the cause of the ongoing back issues he has reported. The Veteran asserted that the VA was giving more credibility to the VA doctor who examiner him one time rather than the doctors and surgeons he has met on multiple occasions. The Veteran asserted that reasonable doubt exists in his case as there are two different views from the VA doctor and his own. Based on review of the medical evidence of record, to include the Veteran's service treatment records and the medical opinions discussed above, as well as the lay assertions of the Veteran, the Board finds that the evidence of record is against a finding that the Veteran's current low back disability is related to his period of service. With respect to the medical opinion evidence of record, the Board finds the opinion of the September 2012 VA examiner to be more probative than the opinions of Drs. B.R., A.M.C. and M.R.D. Indeed, the Board observes that although Dr. B.R. indicated that the Veteran's condition was causally related to his in-service injuries as a paratrooper, Dr. B.R. did not support this conclusion with any explanation or clinical rationale. In particular, Dr. B.R. did not reconcile his conclusion with the Veteran's "normal" clinical examination upon separation from service, and the fact that Veteran previously indicated for purposes of treatment that he was generally well until his back problems started in February 2009. The opinions of Dr. A.M.C. and Dr. M.R.D., although seemingly favorable, are too speculative to support the Veteran's claim. Indeed, they are both couched in terms of possibility ["could have begun" and "may be possible"] rather than probability. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). In contrast, the September 2012 VA opinion is based on a full understanding of the Veteran's contentions, full review of the Veteran's service treatment records, is supported by a clinical explanation, to include reliance on the fact that the Veteran was examined upon separation from service, and was deemed at the time to have a "normal" spine. Moreover, the examiner acknowledged the Veteran's statement that he received treatment for his back pain since service, but made clear that without any records of treatment available to review from 1966 to 2009-a period of more than 40 years-a medical link to service could not be made. Crucially, prior to this examination, VA specifically asked the Veteran to provide any treatment records related to his back condition, including statements from doctors, hospitals, laboratories, medical facilities, x-rays, physical therapy records, or surgical reports in a June 30, 2011 letter. In the same letter, the Veteran invited to complete and return releases for allowing VA to obtain any private treatment reports on his behalf. Although the Veteran did authorize VA to obtain records of treatment from 2009 on, the Veteran did not identify, submit, or authorize VA to obtain any records of chiropractic care dating from 1966 to 2009. The Board acknowledges the Veteran's argument that the opinions of his treating physicians should be held to be more probative than that of a VA Compensation & Pension examiner, who only examined the Veteran on one occasion. In this regard, the Court has held that there is no "treating physician" rule that would give preference to the opinions of the physician who manages and treats the patient's disease over an opinion from a VA physician who reviews all the medical evidence of record. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, for the reasons discussed above, the Board finds the September 2012 VA examiner's opinion more probative than those of record to the contrary. In regards to continuity of symptoms and presumptive service connection, the Board finds that the Veteran's low back disability is properly afforded such consideration, as arthritis is one of the enumerated conditions under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. The Board acknowledges the Veteran's assertions that he has had back trouble his entire adult life. Indeed, the Veteran is competent to report his observable symptoms. The Veteran's statements of continuity however are outweighed by the fact that (1) the Veteran received a "normal" clinical evaluation of his spine upon separation from service in 1966; (2) the Veteran had an opportunity to report experiencing back pain on his report of medical history upon separation from service, but did not do so; (3) that there is a more than 40 year gap in time between the Veteran's 1966 separation from service and the time any treatment is documented for a back issue; (4) that the Veteran reported to his treating physician that he was "generally well" until February 2009; (5) that Dr. A.M.C. noted in a June 2009 letter that the Veteran started having problems in February 2009; and (6) that the September 2012 VA examiner provided a probative opinion against a relationship between any current back problem and the Veteran's in-service back pain. Indeed, the Board places greater weight on the history the Veteran presented to medical professionals for treatment purposes than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). To the extent the Veteran himself asserts that his low back disability is related to his military service, determining the etiology of lumbar degeneration falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset of symptoms and personal observations, any opinion regarding the nature and etiology of the Veteran's disability requires medical expertise that he has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board finds the Veteran's lay statements attributing his back disability to service to be outweighed by the probative medical opinion evidence to the contrary, discussed above. The Board adds that there is no credible evidence of record that the Veteran's low back disability manifested to a compensable degree within one year of the Veteran's discharge from service. See 38 C.F.R. § 3.307 (a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with a chronic low back disability until many years after service. As such, based on the above, the Board finds that the weight of the evidence is against a finding of service connection. In reaching this 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. 38 C.F.R. § 3.102 (2017), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs