Citation Nr: 20037032 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 14-99 818A DATE: May 29, 2020 ORDER Entitlement to service connection for lumbosacral disorder is granted. FINDING OF FACT The Veteran's lumbosacral disorder manifested during service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbosacral disorder have been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from April 1990 through June 1996. This matter comes before the Board of Veterans’ Appeals (Board) upon appeal from a June 2013 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Houston, Texas. The claim for service connection for lumbosacral disorder was remanded by the Board for a new medical opinion that addressed the Veteran’s claim of use of a back brace in service, whether his back injury was secondary to service-connected knee disorder, and the positive nexus opinion of the Veteran’s private physician, Dr. W.R. The Board has reviewed the file and observes substantial compliance with the remand directives and will move forward with adjudication of the claim. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases to include degenerative arthritis may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms after separation affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight." It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). If evidence is determined to be competent, the Board must then consider whether the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for lumbosacral disorder A review of the Veteran’s service-treatment records (STRs) reveals numerous visits for knee pain leading up to a diagnosis of meniscal tear and knee surgery. Upon service discharge, the Veteran prepared and signed a Report of Medical History in which he endorsed the use of a back brace in service. Turning to private treatment records, the Veteran began receiving regular chiropractor treatment for lumbar dysfunction in February 2009. In March 2014, he underwent laminectomy surgery for back pain not responsive to conservative therapies. The VA treatment records begin with a problem list reflecting chronic low back pain in January 2012 for the Veteran. In July 2013 the Veteran received an MRI of the lumbar spine which showed mild disc bulges of the lumbar discs and a broad-based disc bulge at L5-S1 with degenerative changes. In July 2016, the Veteran called in to renew his prescription for Flexeril to help with his back spasms. In May 2014, Dr. W. R. reviewed the Veteran’s medical history, performed a review of systems and clinical examination and offered his opinion of the cause of the Veteran’s lumbosacral disc disease. The Veteran advised that he first noticed low back pain during his early military training in the 1990s when carrying a rucksack with 40 pounds of military gear and field equipment carried on his back during exercises and military drills. During this time the Veteran advised Dr. W.R. that he took over-the-counter pain relievers. He denied having major accidents, falls, or injuries to his back at any time. After separation from the military, the Veteran’s low back pain gradually increased, failed to respond to conservative treatment and progressed to bilateral radicular symptoms. In 2013 computerized axial tomography (CAT) myelogram and magnetic resonance imaging of the lumbar spine documented significant disc degeneration, severe bilateral foraminal stenosis and L4-L5 disc herniation with compression of the L5 nerve root which lead to the Veteran’s decision to receive a hemi-laminectomy and discectomy surgery in March 2014. Dr. W.R. noted improved pain and functionality after lumbar surgery, but that continued disease progression is the natural course of this arthritic condition. Dr. W.R. offered his opinion that the Veteran’s military activities including ruck marches carrying heavy equipment over a 6-year period were the most likely cause of the Veteran’s lumbosacral disease. In July 2015, the Veteran received a VA examination and medical opinion regarding his low back pain. The Veteran gave a history of back pain starting during basic training with periodic incidents through his military service. The VA examiner opined that there was no evidence of treatment for a lower back condition in service and for 20 years after service such that there was no possible nexus for the Veteran’s back condition including his service-connected knee condition. The examiner further opined that in the absence of a diagnosis of lumbar spine condition within one year of separation a presumptive basis for service connection was precluded adding that further investigation was appropriate as this claim represented an appearance of impropriety. In April 2019, a second VA examination was afforded the Veteran for thoracolumbar spine condition. The examiner noted that the onset of the back disorder was 1991 with symptoms continuing to worsen until 2013 when surgery was recommended. Upon examination, 30 degrees of forward flexion of the spine was documented and no additional losses of function were documented with repetitive use or during flare-ups. The examiner found that the Veteran’s lumbar disorder was less likely than not due to service due to the absence of treatment in service and no evidence of treatment for lumbar disorder after service until 2013. In August 2019 VA received a Statement in Support of Claim in which the Veteran addressed the VA examiners’ assertions that there was no evidence of back issues during service. The Veteran noted that he wore a back brace during service due to injuring his back on several occasions carrying extremely heavy rucksacks and equipment. In addition, he recalled slipping and falling off slippery rear metal loading ramps of military vehicles in inclement weather and landing on his buttocks causing him to feel a shock going all the way up his spine. The Veteran noted that he was in his 20s and not as in tune with documenting his injuries in that his back pain was not always constant during military service as it is today. Finally, the Veteran noted a visit with medical personnel in service for his back during which he received a back brace. The Veteran states that, pre-electronic medical records, he can only guess that the sheet of paper that documented the encounter for his back injury fell out of the file at some point. After remand, a third VA examination for thoracolumbar spine condition was performed in December 2019. The VA examiner confirmed that the Veteran is limited to 30 degrees of forward flexion and 15 degrees of extension with no additional loss of range of motion with repetitive use or upon flare-ups, that the Veteran has an antalgic gait with moderately severe levels of pain and paresthesias to the bilateral lower extremities, and regular use of a back brace and occasional use of a cane for his lumbar spine disorder. The examiner opined found that it was less likely than not that the lumbar spine disorder was secondary to the Veteran’s service-connected knee condition as degenerative arthritis in one joint does not cause degenerative arthritis in another joint and the knee degenerative arthritis is a separate entity from his claimed lower back disability. The examiner found that the Veteran’s lumbar disorder was less likely than not due to service given the absence of treatment in service and no evidence of treatment for lumbar disorder after service until 2013. The Board notes the consistency in the three VA examiners opinions in that they each state that there was no evidence of an inservice injury to the Veteran’s back in the STRs or otherwise. Each of the examiners overlooked an entry made by the Veteran on his separation examination regarding use of a back brace. In addition, none of the VA examiners addressed the Veteran’s lay account of back injuries in service. The examiners indicated that there was anywhere from a 17 to 20-year gap in treatment from time of discharge until documented treatment for back pain. However, the Board notes that the evidence of record substantiates that the Veteran pursued at least twice weekly treatment for back pain beginning in February 2009, 12 years after separation from service and not the 17 to 20 years stated by the VA examiners. Even the VA treatment records in evidence reflect that the Veteran had a diagnosis of chronic back pain as of January 2012. The omissions and misstatements in the VA examiners’ opinions diminishes the credibility of the examination reports and the probative value of the examiner’s opinions. Prejean, Nieves-Rodriguez, both supra. (Continued on the next page)   The Board acknowledges both limited inservice documentation of back injuries and ongoing back treatment after service. The Veteran is competent to report his back pain and his medical history. Jandreau, supra. His reports regarding the incurrence of a back injury and continuity of symptomatology for back pain are plausible. Caluza, supra. Upon initial presentation for private treatment after service in February 2009, the Veteran detailed the issues causing his lumbar disorder inservice as dating back 15 years, a time frame consistent with service. The Board finds this evidence, given its detail and consistency, to be credible evidence of back injuries during service and assigns it significant probative value. Overall, the evidence is at least evenly balanced as to a continuity of symptomatology since service for the lumbosacral disorder, now diagnosed as degenerative joint disease. In conclusion, as the reasonable doubt given evidence in relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for degenerative arthritis of the lumbar spine is warranted. Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.