Citation Nr: 1825909 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 12-33 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to March 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In December 2015 the Board remanded this issue for additional development. 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 The Veteran's low back disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a September 2010 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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 duty to assist argument). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran seeks service connection for a low back condition as he asserts that he injured his low back while serving in Baumholder, Germany in 1967. He claims that he was thrown from the back of a truck while on guard duty and injured his low back. The Veteran testified that he experienced prostatitis after this incident and that doctors have told him it was related to his low back condition. The Veteran's service treatment records confirm that he was treated for prostatitis in 1967. However, they are negative for treatment or complaints of a low back disability. Notably, his January 1968 separation examination was without complaints or reference to a low back disability. An April 2005 private treatment report noted current low back pain. It was also noted that the Veteran reported had an in-service motor vehicle accident in 1967 where he landed on his tailbone which resulted in an infected prostate. He also had an injury in 1982 where he was lifting equipment into a trailer. In a November 2012 correspondence, a private physician indicated that the Veteran had moderate degenerative disc disease at the L5-S1 disc. The private physician noted that the Veteran reported having a traumatic blow to his lower back when he fell out of his jeep during his service in 1967. The Veteran felt that this injury was exacerbated sometime in the 1980's when he was lifting lawnmowers into a pickup truck. The Veteran had undergone chiropractic care over the years to help with chronic back pain from this incident. The physician opined that "there was no way to ascertain to a certain causative factor for his injury but due to the chronic degeneration seen on his x-ray, it is plausible that the above described jeep incident initially injured his lower back". A March 2015 private treatment report noted that the Veteran's low back pain had been present since a prior injury but had worsened over the past couple of weeks. A June 2015 MRI revealed moderate to severe narrowing of the spinal canal and degenerative disc disease. A September 2015 private treatment report noted that the Veteran indicated that he had back pain for 48 years as he reported an episode where he was ejected from a car while he was in the service. He reported that he had back pain ever since. The treating physician noted that some of the findings on the MRI were possible from a prior injury but the Veteran's MRI had some changes that were suggestive of a more acute injury. Per the December 2015 Board remand instructions, the Veteran underwent a VA examination in March 2016. The Veteran had a diagnosis of lumbar spine spondylosis with left radiculopathy. The examiner noted that the Veteran reported that while on active duty he fell off a jeep in Germany. He did not seek medical attention for the back trauma but he saw doctors about 10 days after the injury for penile issues. 45 days later he was diagnosed with prostatitis. Service treatment records in May 1967, July 1967 and December 1967 all mentioned urinary issues and prostatitis but there was no mention of any back pain. The Veteran's January 1968 Report of Medical History for his separation was also negative for a back injury as he specifically indicated that he did not have recurrent back pain. The examiner noted that according to up to date studies, trauma to the prostate has been anecdotally associated with prostatitis, but these factors had not been established by well controlled studies. The examiner also noted that there was no record which documents back pain from a Jeep injury and no evidence to connect a back injury to active duty with the prostatitis. The Veteran reported that 1 month after his discharge he had injured his back when he was lifting a garage door and twisted his back. However, no medical treatment was sought and his back pain cleared in several days. About 10 years later in 1978, he reported that he hurt his back while helping his brother which resulted in chiropractic treatment. However, none of these records are available. The examiner noted that the Veteran first started receiving VA treatment for his low back pain in 2009 where he linked the low back disability to the in-service injury. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in, related to or associated with his service. The examiner noted that a review of the up to date evidence-based medical information did not show an association of prostatitis and trauma, such as a low back injury. There were no records in the service treatment records about a low back disability and the separation examination showed that the Veteran specifically answered "no" to the question about whether he had recurrent back pain. The Veteran was treated for prostatitis on active duty but he had no subsequent recurrence. The examiner also opined that it was less likely than not that the development of prostatitis while on active duty was evidence that showed, or was consistent with, the Veteran's history of a low back injury while on active duty in Germany. The Veteran had no evidence of recurrent prostatitis and there was no evidence to support that the prostatitis condition would have aggravated or exacerbated a low back injury in service. There was no evidence supporting an in-service back injury aggravating or exacerbating a current low back disability. Thus, it was less likely than not that the Veteran's current low back disability was aggravated beyond its natural progression by an in-service back injury. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a low back disability is not warranted. As there are current diagnoses of spondylosis and degenerative disc disease of the lumbar spine, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a low back disability on a presumptive basis is not warranted as the record does not show evidence of arthritis of the lumbar spine during the Veteran's period of active military service, or within one year of his separation from active duty. Notably, while the Veteran reported that he had back complaints about a month after service, the record is negative for these complaints. The Veteran also consistently reported that he had back complaints in the 1980's after a lifting injury but again the record is negative for these complaints and treatment. Instead, the first evidence of any back related complaints was in an April 2005 private treatment report, over 37 years after his separation from active duty. Additionally, the available medical evidence shows no disability of the low back soon after service. Accordingly, service connection for a lumbar spine disability on a presumptive basis is not warranted as a chronic disease did not manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. The Board notes that the record demonstrates that the Veteran has reported having low back pain since his service which began after trauma from his in-service injury when he was involved in a motor vehicle accident. To the extent that the Veteran is asserting that he experienced low back pain and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The Board however finds it significant that the March 2016 VA examiner noted that while the Veteran reported that the onset of his back pain was during service as a result of getting thrown from a Jeep, his service treatment records were negative regarding low back pain even though service treatment records in May 1967, July 1967 and December 1967 all mentioned urinary issues and prostatitis. The examiner also noted that the Veteran's January 1968 Report of Medical History for his separation was negative for a back injury as he specifically indicated that he did not have recurrent back pain. Additionally, the March 2016 VA examiner also specifically addressed the Veteran's claims of continuity of symptomatology and noted that there was no record which documents back pain from a Jeep injury and no evidence to connect a back injury to active duty with the prostatitis. The examiner also noted that while the Veteran reported that 1 month after his discharge he had injured his back when he was lifting a garage door and twisted his back, no medical treatment was sought and his back pain cleared in several days. Additionally, while the Veteran reported that he hurt his back while helping his brother about 10 years later in 1978 which resulted in chiropractic treatment, none of these records are available as the examiner specifically noted that the Veteran first started receiving VA treatment for his low back pain in 2009 where he linked the low back disability to the in-service injury. The Board again notes that the Veteran's service treatment records reflect complaints and treatment for prostatitis. However, on the January 1968 Report of Medical History for his separation from service, the Veteran specifically denied any low back symptoms as he denied having any recurrent low back pain. The Board notes that the fact that these in-service documents reflect complaints of prostatitis related to the in-service motor vehicle accident suggests that if the Veteran had been experiencing chronic problems in his low back while in service, he would not have remained silent and would not have specifically denied experiencing symptoms such as low back pain at his separation examination and on his January 1968 Report of Medical History. The Board finds that the Veteran's contemporaneous denials of symptoms separation distinguish the facts in this case from those in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred in finding that service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. Here, rather than relying on a complete absence of complaints, the Board is relying on the fact that the Veteran is documented as having denied a history of low back complaints on several occasions immediately after service. Additionally, these contemporaneous records, especially the Veteran's January 1968 separation examination, are again highly probative as they indicate that he did not have a problem with his low back at the time of his service separation. These findings again contradict any current assertion that a low back disability existed at the time of his service discharge. Thus, the Board finds that his documented medical history is in conflict with any assertions that his current low back symptoms have continued since service. The Board also finds a history provided directly to health care providers during the course of treatment inherently more credible than statements made in support of a claim for monetary benefits. Even assuming the Veteran did experience back pain in service, in light of his failure to reference ongoing back problems since that time during the course of subsequent health care visits, the Board must find any assertion of experiencing a continuity of symptomatology since that time not credible. As a result, as the Veteran was not diagnosed with a low back disability until many years after service, no complaints or findings were noted during the course of his medical separation, and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a low back disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board again notes that while the Veteran had prostatitis complaints in service, the Veteran's service treatment records are negative for complaints or treatments of a low back disability. Again, the Veteran's separation examination was negative for complaints, treatments or diagnoses related to a back disability. The Board notes that there are conflicting medical opinions of record addressing the possibility of a relationship between the Veteran's current low back disability and his service. As noted above, in a November 2012 correspondence, a private physician opined that "there was no way to ascertain to a certain causative factor for his injury but due to the chronic degeneration seen on his x-ray, it is plausible that the above described jeep incident initially inured his lower back". Additionally, a September 2015 treating physician noted that some of the findings on the MRI were "possible from a prior injury". Conversely, the March 2016 VA examiner opined that it was less likely than not that the Veteran's low back disability was incurred in, related to or associated with his service while also determining that it was less likely than not that the development of prostatitis while on active duty was evidence that showed, or was consistent with, the Veteran's history of a low back injury while on active duty in Germany. In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the March 2016 opinion of the VA examiner to be the most probative. Regarding the November 2012 and September 2015 opinions of the private physicians, the November 2012 opinion indicated that "it is plausible that the above described jeep incident initially inured his lower back" while the September 2015 opinion noted that some of the findings on the MRI were "possible from a prior injury". However, the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). In contrast, the March 2016 VA examiner provided a detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that the Veteran's claimed low back disability was less likely incurred in, related to or associated with his service. When composing his March 2016 opinion, the VA examiner had the benefit of a review of the Veteran's claims file, and provided a more detailed rationale than the private physicians. Additionally, as noted above, per the December 2015 Board remand instructions, the March 2016 VA examiner specifically addressed whether the evidence of in-service prostatitis in the Veteran's service treatment records could be evidence of a low back injury which was consistent with the Veteran's claim. As noted above, the March 2016 VA examiner opined that it was less likely than not that the development of prostatitis while on active duty was evidence that showed, or was consistent with, the Veteran's history of a low back injury while on active duty in Germany. For these reasons the Board finds the March 2016 VA examiner's opinion to be the most probative regarding the issue of whether the Veteran's current low back disability is related to his service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Given that the most probative opinion is against a finding of a relationship between a low back disability and his service, the Board finds that service connection is not warranted. The Board notes the Veteran and his representative's contentions regarding the etiology of his claimed low back disability. To the extent that the Veteran and his representative themselves contend that a medical relationship exists between his claimed low back disability and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a low back disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed low back disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the March 2016 VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran and his representative's assertions that there is a relationship between his claimed low back disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL LAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs