Citation Nr: 20041946 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 17-25 417 DATE: June 19, 2020 ORDER Service connection for lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back) is at least as likely as not related to her in-service back injuries. CONCLUSION OF LAW The criteria for service connection for lumbar spine L5-S1 annular tear with degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1996 to November 2001 with additional service in the Reserves. The Board of Veterans’ Appeals (Board) notes that the October 2015 rating decision from which this appeal stems was adjudicated as a claim to reopen a claim of service connection for lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back), which was previously denied in an April 2015 rating decision. However, new and material evidence (in the form of several buddy/lay statements and a July 2015 letter from one of the Veteran’s doctors) was received within one year of that April 2015 rating decision, and as such, that rating decision did not become final. For that reason, the only issue before the Board is that of entitlement to service connection for lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back). Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back) is not before the Board and is not addressed herein. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). 1. Entitlement to service connection for lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back) The Veteran claims that she has severe lower back pain from an injury that she incurred in 1997 while serving in the U.S. Army. She claims that it causes her constant pain which interrupts her sleeping and makes it difficult for her to function without being in constant pain. She claims that she went to the doctor a few times during her service and that she was placed on profile for the back injury. She also claims that she avoided complaining about or seeking treatment for the injury during her service in order to avoid being seen as inferior or weak or being ridiculed by other soldiers and superiors. She has stated that it took her several years after leaving the military to see a doctor for her back due to her mindset of the military culture being ingrained in her thinking of not showing weakness or being hurt and because she did not like visiting doctors in general at that particular time in her life. The Veteran has also claimed that she has lived with and suffered from back pain for many years since the in-service injury, and that her relationship with her family and her children have been affected, as she is not able to do things with her children like a mother should be able to do. Regarding her husband, she claims that her relationship with him has suffered tremendously. She claims that she has missed work on several occasions throughout the years due to her lower back pain, that she cannot sleep more than a couple of hours at a time due to her pain, and that she has done everything she can to try to alleviate the pain in her lower back, including taking medications, doing physical therapy, massage, acupuncture, visiting chiropractors, and getting shots in her back to alleviate the pain to no avail. See VA Form 21-4138, Statement in Support of Claim received June 13, 2014; letter authored by the Veteran and received in September 2015. The Veteran has also claimed that after all of the sit ups and physical training (during her military service) she started seeing a doctor for lower back pain and weakness and is unable to lift or stoop without some pain or to run for more than a half mile without stopping. Finally, she also claims that she has put on weight because she is not able to exercise. See VA Form 21-0958, Notice of Disagreement received in November 2016. A buddy statement from one of the Veteran’s previous coworkers indicates that the coworker noticed that the Veteran had “back issues” that required the coworker to assign the Veteran less strenuous tasks and the Veteran to use sick or vacation time and take regular breaks to rest throughout the time that they worked together (from 2002 to approximately 2008). According to the coworker, the Veteran was unable to lift heavy objects or stand for long periods of time because her back would be hurting. See buddy statement authored by D.H. and received in September 2015. The record also contains a buddy statement from the Veteran’s husband, and in that statement, the Veteran’s husband stated that the Veteran has had ongoing back pain due to an injury that she suffered in the Army. The husband also stated that the pain inhibited the Veteran’s active daily living and her occupation. He stated that he was informed of the Veteran’s lower back injury that she suffered in the Army during their early courtship (in early 2007) because there were certain activities that the Veteran could not do, which include running, hiking, etc. According to the Veteran’s husband, the symptoms have worsened over time and affect her so severely that she has missed many days of work and taken medications to alleviate her painful symptoms (to no avail). The Veteran’s husband stated that he can personally attest to how the Veteran’s injury has affected her life. For example, he stated that: he has taken her to many doctor appointments and that her pain has affected her so severely that she has missed many days of work; her pain has affected her so severely that she has missed many days of work; it’s so painful for her to play with their children at the park or to play sports with the family; the Veteran continues to visit doctors and specialists to assist her with dealing with her painful symptoms of her lower back injury; it’s difficult for the Veteran to do activities that encourage a healthier lifestyle (running, prolonged walking or strenuous exercise); on several occasions the husband awoke to the Veteran in agony due to her back pain while attempting to sleep; and that her back pain has hindered their sex life. See buddy statement authored by D.G. and received in September 2015. The Veteran’s mother also authored a buddy statement in which she stated that she has witnessed the Veteran with extreme lower back pain. The Veteran’s mother stated that over the years, she visited the Veteran while she was in the U.S. Army and saw her in severe pain. The Veteran’s mother also stated that she moved in with the Veteran in 2002 and saw her having to take medications, not being able to sleep due to pain, and having trouble doing daily activities. See buddy statement authored by M.B. and received in October 2015. The claims file contains another buddy statement authored by an individual that lived with the Veteran from 2001 to 2003, including a short period during the beginning of that time while the Veteran was still enlisted in the Army. The author of this letter stated that the Veteran experienced back pain from time to time throughout the time that they lived together, and that she witnessed the Veteran in pain daily after long hours at work in the military. This pain, according to the author of this statement, affected the Veteran constantly either at work or at rest and required the Veteran to rest and prevented her from performing normal functions. See buddy statement authored by A.H. and received in September 2015. Another soldier that served with the Veteran also submitted a buddy statement in which she stated that the Veteran injured her back during PT in 1997 and that the injury caused ongoing pain and concern for the Veteran as it inhibited not only the Veteran’s job, but also her normal daily activities. This fellow soldier also stated that the pain grew progressively worse and continued to inhibit her work and family duties. See buddy statement authored by J.B. and received in September 2015. The Veteran’s service treatment records (STRs) show that she did not report any back pain during her entrance examination and that she did report back pain multiple times during her active service, including in April 1997, August 1999 and September 1999. When she reported back pain in April 1997, she described it as lower and upper back pain and soreness during the day and when laying down or going to bed for more than 5 days. The treating physician/provider noted that s/he suspected mechanical back pain probably due to overuse and increased physical activity. The Veteran was placed on a profile due to this report of back pain. See STRs received in June 2014. Another service treatment record dated August 1999 documents that the Veteran received emergency care and treatment for back pain that she experienced daily until she would get off work. See STR received September 2015. When the Veteran complained of back pain in August 1999, she reported 10 months of lower back pain that is worse with heavy lifting and present at night. The physician/provider that saw her then stated that her job (as a cook on active duty) involved prolonged standing, bending, stooping, and lifting. See STRs received in June 2014. The Veteran also reported back pain in September 1999 that was described as sharp pain over the right SI region that sometimes travels across to the left side. The Veteran reported her symptoms worsen with prolonged work, washing car, strenuous work, or prolonged sitting. The examiner noted that the Veteran’s pain decreased with hot baths but that the Veteran was not taking muscle relaxants because they didn’t help. See STRs received in December 2014. The Veteran’s private and VA treatment records document her post-service complaints of lower back pain since at least as early as 2006. See, e.g., letter authored by Dr. J.F. received in December 2014. They show that the Veteran has indeed been evaluated, prescribed medication, undergone chiropractic treatment, and undergone epidural injections for her lower back pain/problems. See, e.g., private treatment records received in February 2015; private treatment records received in March 2015; private treatment records received in February 2015. A letter that was authored by one of the Veteran’s chiropractic doctors and submitted as evidence in support of her claim indicates that the Veteran was treated for multilevel disc disease and facet arthropathy and associated back pain in that doctor’s office. The doctor opined that the Veteran’s “early degenerative changes of the spine” are at least as likely as not related to her active service as a cook and were compounded by “the physical stresses and trauma sustained to the spine through rigorous required training and drills” during her service. See, e.g., letter authored by Dr. J.F. received in December 2014. The Veteran was afforded a VA examination for her back in April 2015, and the examiner indicated that she has a diagnosis of lumbar spine L5-S1 annular tear with degenerative disc disease. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran was seen once in 1999 for an acute back strain, was not noted to have any back problems during discharge and was not seen again for back pain until the early 2010s. The examiner explained that if the Veteran’s current back problems were related to her acute back strain in 1999, she would have had symptoms or problems continuously (since then). See VA examination report received in April 2015; VA Medical Opinion dated April 6, 2015. Days later, another VA medical opinion was obtained, and the examiner that provided that opinion indicated that it is less likely as not that the Veteran’s current back condition is related to complaints in service some 13 years prior since “there is no established chronicity of back condition from 2 years prior to separation from service until 2012. See VA Medical Opinion dated April 8, 2105. In September 2015, the Veteran submitted another letter from the private doctor that authored the July 2014 letter referenced above. This July 2015 letter indicates that, after review of extensive documentation provided by the Veteran, to include at least some of the Veteran’s STRs and other medical records, the doctor was of the opinion that the Veteran’s lower back pain began during her active service. The doctor explained in the letter that the Veteran has facet arthropathy and degenerative disc disease in the lower lumbar region with an annular fissure visualized at the level of L5-S1. According to this doctor, the annular fissure results in a small broad-based disc protrusion that contacts the S1 nerve roots. The doctor explained that facet arthropathy and degenerative disc disease are spinal pathologies that often present years following trauma because the biomechanics of a joint are compromised, and that when this occurs in the spine, it is usually coupled with pathology of the disc, as is the case with the Veteran’s lower back. Therefore, according to this doctor, the Veteran’s lower back pain is on a more probable than not basis related to her active duty in the military. See letter authored by Dr. J.F. received in September 2015. The Veteran submitted another letter by another, second chiropractic doctor in May 2017, and this second doctor indicated that he interviewed and examined the Veteran and reviewed her “medical file,” including her STRs. Based on that interview, examination, and review of her medical file, the doctor stated that physical examination and imaging of the Veteran’s back demonstrated remarkably degenerated L5 discs and posterior joints that are far beyond what would be expected for a female her age. The doctor stated that the Veteran’s back-related complaints have waxed and waned over the years, gaining in both severity and frequency of exacerbations. The doctor opined that those complaints are service-related, and that there is little chance that she could have advanced degenerative changes as seen on the radiographs with only a recent occurrence. The doctor further explained that: “[t]he example that I used with [the Veteran] to highlight this is, if I were to bump her car with mine in the parking lot, and under inspection I could see advanced levels of rust, I know that I did not do all that damage and that the problem had been there for some time prior. In this case, the radiographs show that the origin of the spinal dysfunction would likely be approximately 20 years ago which places it concurrent with her military spinal complaints.” The doctor explained that the VA examiners’ assumption that the Veteran’s medical records would have reflected continuous complaints of back pain since service if that pain was service-related is a false assumption “because the term ‘hidden’ or ‘silent degeneration’ would apply in this case.” The doctor further explained that spinal degeneration does not always have to be symptomatic or painful, and that in most cases, as in this case, it has its seeds of origin in a pain episode and leads to mild segmental motor dysfunction. According to the doctor, this dysfunction compromises the full nutritional perfusion of the disc such that it begins to break down, desiccate, and finally the disc annulus fissures and eventually can herniate. The doctor concluded by stating that based upon radiographs, patient complaints, and patient history, on a more probable than not basis the Veteran’s lumbar spine pain had its origins in her military service. The examiner stated that the lack of a chronic pattern of complaints has more to do with the Veteran being young and tough, and not wanting to take the time to complain, rather than the opposite assumption that no problem existed. See letter authored by Dr. T.J.Y. received in May 2017. Considering the foregoing, the Board finds that it is at least as likely as not that the Veteran’s current back problem (lumbar spine L5-S1 annular tear with degenerative disc disease) was incurred during her active service and is related to her in-service complaints of lower back pain. The Veteran, her husband, mother, fellow soldier, coworker, and friend/roommate have collectively provided competent and credible testimony that the Veteran suffered from significant back pain during her active military service and ever since, including between the time of her discharge and 2006. Her private and VA medical records document complaints of back pain and evaluation and treatment for back-related conditions since at least as early 2006. Further, the Board finds that the letters from the Veteran’s private chiropractic doctors are more probative than the VA examination report and VA medical opinions. The Board has made this determination for two reasons. First, the VA examination report and the VA medical opinions contain inaccurate statements as to the history of the Veteran’s back condition and complaints of back pain. In the April 2015 VA Medical Opinion, for example, the examiner stated that the Veteran was seen only once, in 1999, for back-related complaints and that she was not seen again for back pain until the early 2010s. However, as indicated by the above discussion of the Veteran’s STRs and private treatment records, she was evaluated and/or treated multiple times during her service for back pain, including in 1997 and, in 1999, for back pain that persisted for at least 10 months. Additionally, her private treatment records show that she complained of back pain after her service at least as early as 2006. The second VA Medical Opinion obtained days later from a different examiner shows that the second examiner stated that the Veteran was not seen for back pain after her service until 2012. That, too, was also incorrect. Second, the United States Court of Appeals for the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Here, the rationale of both VA Medical Opinions was based entirely on the absence of contemporaneous medical evidence and neither rationale adequately considered whether the Veteran’s and other lay statements in the record presented sufficient support of the etiology of the Veteran’s claimed back disability. Thus, those medical opinions are of little probative value in the first place, and even further, they are inadequate under Buchanan. The letters from the chiropractic doctors, however, are apparently based on review of a large portion of the relevant records in the Veteran’s claims file, including her STRs and post-service medical records, and their rationales are based on more than just the mere presence or absence of contemporaneous medical evidence. Further, the Board finds that their rationales are sound and persuasive, particularly that of the most recent May 2017 letter. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that her lumbar spine L5-S1 annular tear with degenerative disc disease (claimed as lower back) is at least as likely as not incurred during her service and related to her in-service back injuries. Therefore, the Board also finds, in turn, that the criteria for service connection for lumbar spine L5-S1 annular tear with degenerative disc disease are met. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.