Citation Nr: 19130613 Decision Date: 04/19/19 Archive Date: 04/18/19 DOCKET NO. 08-03 263 DATE: April 19, 2019 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The most probative evidence of record establishes that a lumbar spine disability did not have its onset during and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1972 to December 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the May 1995 and June 2006 Department of Veterans Affairs (VA) regional office (RO) rating decisions. The Veteran’s service treatment records (STRs) indicate that, in September 1982, he sustained an injury to – and reported pain in – his lower back after he was assaulted during an attempted robbery and received several blows to, inter alia, his spine. The STRs also demonstrate that, a week later, in October 1982, he reported that “he felt something snap in his back when he reached up to pull himself over a fence.” While an x-ray of his spine revealed no abnormalities, he reported that his lumbar paraspinal area was tender and was treated with Percocet. In March 1984, i.e., a year and a half after the September-October 1982 incidents, his spine was checked during a routine medical examination, and revealed no abnormalities. Further, the STRs do not reflect any complaints or symptoms of back pain during the Veteran’s following years in service. Moreover, in October 1992, i.e., a decade after the September-October 1982 incidents, his back and musculoskeletal system were found normal during a routine medical examination. In addition, half a year later, i.e., in April 1993, another examination of his spine again revealed no abnormalities. During his pre-retirement examination in November 1993, his spine was found normal once again. Further, during an October 1994 examination, i.e., two months prior to his discharge from service, his spine was found normal one more time, with no disk bulge or protrusion observed. Nonetheless, just prior to his separation from service, the Veteran filed an application for disability benefits for unspecified back problems (as well as numerous other disabilities, such as the need to wear glasses, unspecified conditions of the right and left knees, unspecified condition of the neck, a burn on his left arm, the need to remove a toenail on his left foot, bronchitis, gastroenteritis, chest pain, hemorrhoids, a venereal disease, thoracic outlet syndrome, recurrent impingement syndrome, upper left extremity venous thrombosis, and alopecia). In May 1995, the RO issued a rating decision denying service connection for, inter alia, unspecified back problems, while granting service connection for other disabilities. The Veteran neither appealed nor submitted new and material evidence within one year after the May 1995 rating decision. The Veteran’s post-service treatment records demonstrate that, in March 1996, i.e., a year and three months following his discharge, he had an accident during which he fell down the stairs and sustained a traumatic back strain that manifested by paraspinous tenderness. However, his examination conducted in connection with that accident showed that his lumbosacral alignment remained normal, his disc spaces remained maintained, and no fracture or significant degenerative changes were present. Further, during his October 1996 follow-up examination, his treating medical practitioner reported that his vertebrae were of normal height, with adequate maintenance of intervertebral disc spaces, and the examination revealed “no evidence of traumatic, neoplastic or significant arthritic changes.” In June 2005, i.e., 10 and a half years after his separation from service, the Veteran filed an application seeking reopening his back-disability claim disallowed in the May 1995 rating decision. In support of his June 2005 application, he asserted that, in 2005, his treating medical practitioner diagnosed him with chronic back pain and prescribed a medication to control that pain. In June 2006, the RO issued a rating decision denying reopening on the grounds that his chronic back pain diagnosis did not amount to new and material evidence because the May 1995 rating decision denied service connection for failure to meet the nexus requirement rather than the current-disability element of his claim. The Veteran timely appealed the June 2006 denial of reopening to the Board. In December 2011, the Board found that, although the May 1995 rating decision became final, a reopening was warranted. Therefore, the Board remanding the claim for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). In September 2012, a VA examiner diagnosed the Veteran with a thoracolumbar spine condition, noted his reports of flare-ups, and concluded that he suffered from limitations of motion. The September 2012 VA examiner, however, did not render an opinion as to a correlation or lack thereof between the Veteran’s current lower back disability and his active service. Rather, the September 2012 VA examiner merely noted that the Veteran failed to report for his x-ray appointment, hence preventing a determination as to the presence or absence of arthritis in his lumbar spine. In February 2018, the Veteran underwent another VA examination during which the examiner similarly recorded his limitations of motion but noted that the initial mild degenerative changes in his lumbar spine were noted only in May 2005, and he was diagnosed with multilevel spondylosis only in February 2014. Further, the February 2018 VA examiner pointed out that, as late as in October 2004, i.e., a decade after the Veteran’s separation from service, his spine x-ray was normal. In light of the foregoing, the February 2018 VA examiner found that it was less likely than not that the Veteran’s low back conditions were related to active service. In April 2018, the RO issued a Supplemental Statement of the Case (SSOC) denying service connection for the Veteran’s lower back disability. In May 2018, the Veteran filed a statement executed by his treating medical practitioner in August 2015 (i.e., two and a half years prior). In that August 2015 statement, the treating practitioner acknowledged, on the one hand, the Veteran’s back pain in September and October 1982 following the assault due to robbery and referred to that September 1982 incident as the triggering event. However, and inconsistently with his triggering-event statement, the treating practitioner also alleged that the Veteran had “documentation in his military medical record of back pain since 1978,” without a clarification as to what documentation the treating practitioner was referring to and in contradiction to the STRs that do not contain any “record of back pain since 1978.” Moreover, the August 2015 treating practitioner’s statement acknowledged the Veteran’s back injury, which occurred post service due to him falling down the stairs, but downplayed that injury by referring to it as a “potential” injury, even though the Veteran’s post-service medical record clearly documented both the fact and the nature of the injury. Upon making these statements, the August 2015 treating practitioner extensively detailed the Veteran’s diagnosis of spondylosis and degenerative disc changes but omitted to address the fact that one of these conditions manifested nine years after separation from service and another was diagnosed 20 years after discharge. Instead, the August 2015 treating practitioner reported that the Veteran “still describe[d] chronic pain[,] which decrease[d] his quality of life” and listed various types of medical treatments the Veteran received in Japan, his place of residence. In conclusion of his August 2015 statement, the treating practitioner opined that the Veteran’s “back condition was . . . more than likely as not [sic] . . . developed as a result of . . . his military service” and provided the following rationale: As the [assault-related back] injury described in 1982 occurred during his term of service, it is[,] by definition[,] service connected. Having filed the August 2015 treating practitioner’s statement in May 2018, the Veteran accompanied it with a submission styled as a Notice of Disagreement (NOD). The NOD challenged the negative February 2018 VA examiner’s opinion on the grounds that it was “inconsistent” with the positive August 2015 opinion rendered by the Veteran’s treating practitioner. Further, the NOD asserted that the RO conceded, in its May 1995 rating decision, that his “lower back pain issues were service connected” while nonetheless “denying the claim.” The NOD also alleged that, in 2011, the U.S. Court of Appeals for Veterans Claims (Court) remanded the Veteran’s prior appeal to the Board, causing the Board to direct his February 2018 VA examination. However, the evidence of record demonstrates that the RO at no point conceded the nexus element of the Veteran’s claim, that the appeal at hand is the one that was triggered by the application for reopening, that no Veteran’s challenge was presented to the Court, and no Court decision prompted the Board’s December 2011 decision to order a VA examination. In sum, the NOD indicates the Veteran’s substantial confusion as to the procedural posture of this appeal, as well as the substance of the underlying decisions. In May 2018 and March 2019, the Veteran’s representative filed two substantively indistinguishable Appellant’s Briefs acknowledging the findings of February 2018 VA examiner but maintaining that the Veteran’s current back conditions should be service connected based on his reports of soft-tissue back pain in September 1982. For the reasons detailed below, the Board disagrees. Service connection may be granted for a disability resulting from a disease or injury that was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). A direct service connection requires evidence of a current disability, an in-service event that caused an injury or triggered a disease, and a nexus between said event and the disability. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(a). The Board gives a claimant the benefit of the doubt on any issue material to his/her claim when evidence is in equipoise, but the Board determines the competence and credibility of the evidence and weighs the competence and probative value of the evidence, including lay statements, against the entirety of the record. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Many veterans experience illnesses or injuries that leave no lasting impact, these medical conditions are considered acute and transitory. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the burden is on the veteran to establish, by the equipoise standard, that the independent medical evidence supports a finding that an in-service event is related to his/her current disability. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. Given that a lumbar spine disability is capable of lay observation, the Veteran was competent to report his low back pain in September and October 1982, as he is competent to report it as to any portion of the period on appeal. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his opinion cannot qualify as competent medical evidence establishing a nexus between his active service and his current back conditions because he has not been shown to possess the medical expertise needed to render a nexus opinion in medically complex matters, such as the etiology of his disability. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009). The Board, therefore, turns to the medical opinions provided by his treating practitioner in August 2015 and by the February 2018 VA examiner. An adequate medical opinion should be based on a thorough review of the claims file and consist of a discussion of the relevant evidence and a clear conclusion with a reasoned supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While a medical opinion need not be perfect, Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012), factors for assessing the probative value of a medical opinion include its thoroughness, Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Further, a probative medical opinion must be based on accurate data, Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005), and the Board may reject an opinion based on inaccurate facts, Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, the August 2015 opinion rendered by the Veteran’s treating practitioner shows that the treating practitioner did not carefully review the claims file since he incorrectly stated that the STRs contain a record of the Veteran’s continuous back pain from 1978 forward and, in addition, he erroneously questioned the substantive nature of Veteran’s well-documented back injury following his March 1996 stairs accident. Further, the August 2015 treating practitioner’s opinion is not thorough since it made references to the Veteran’s current back conditions but failed to discuss that these conditions manifested or were diagnosed either nine or 20 years after the Veteran’s separation from service. Moreover, the August 2015 opinion lacks a reasoned rationale in support of its conclusion that the Veteran’s “back condition was . . . more than likely as not [sic] . . . developed as a result of . . . his military service” because the supporting rationale is limited to the mere fact that the Veteran was assaulted during an attempted robbery in-service. This rationale has evinced the August 2015 practitioner’s undue conflation of the in-service-event element (that does not require and falls outside of a verification by a medical practitioner’s opinion) and the nexus element. Since the nexus element addresses the link between current symptomatology and the claimed in service event, see 38 C.F.R. § 3.303(a); Cohen v. Brown, 10 Vet. App. 128 (1997), the fact that the Veteran was assaulted in-service neither speaks to nor could operate in lieu of a link between the in-service injury and current disabilities. Correspondingly, the August 2015 treating practitioner’s opinion, in addition to being plagued by numerous deficiencies, lacks any reasoned rational. Therefore, the Board affords it low probative value, if any. In contrast, the February 2018 VA examiner’s opinion is highly probative since it demonstrates that the examiner thoroughly reviewed the claims file and carefully considered the Veteran’s September and October 1982 reports of back pain, as well as his post-service March 1996 stairs accident, his initial degenerative lumbar spine changes noted nine years after his discharge, and his spondylosis diagnosed 20 years after his separation from service. Further, the February 2018 VA examiner properly considered the Veteran’s October 2004 negative x-ray taken a decade after his separation from service. Correspondingly, the Board finds the February 2018 VA examiner’s finding that it was less likely than not that the Veteran’s low back condition was related to active service more probative than the August 2015 treating practitioner’s positive opinion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). Because the most probative evidence of record is against finding that the Veteran’s lumbar spine disability had its onset during and is otherwise related to his active service, the benefit-of-the-doubt doctrine is not for application, and the Veteran’s claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel