Citation Nr: 21067846 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 20-02 299 DATE: November 5, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a low back disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not 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 had active duty from July 1957 to July 1959. This matter is on appeal form a September 2017 rating decision. The Veteran had a hearing before the undersigned Veterans Law Judge in November 2020. In November 2020 and June 2021, the Board previously remanded this matter for an adequate VA examination. The Board also remanded a claim for service connection for a shoulder disorder, which the Regional office (RO) fully granted in an August 2021 rating decision. That issue is not before the Board. 1. Entitlement to service connection for a low back disorder. The Veteran contends that he developed a low back disorder from an injury from loading pontoons, as reported in a September 2017 lay statement and November 2020 Board hearing testimony. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As noted in prior remands, there is a February 2018 finding of congenital stenosis by Dr. M.P. In this regard, congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38C.F.R. §§3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. A defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." However, a congenital or developmental defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. Although the Veteran has current diagnoses of low back disorders, to include congenital stenosis, and evidence shows that in-service injury occurred, the preponderance of the most probative evidence weighs against finding that the Veteran's diagnosed disorders began during service or are otherwise related to an in-service injury, event, or disease, nor were they aggravated by service. Private treatment records show the Veteran was not diagnosed with a low back disorder until decades after his separation from service in 1959. The Veteran's service treatment records are fire-related, so only his June 1959 separation examination is available. At that time, the examiner did not find any abnormalities of the spine. The current claim, filed over 50 years after his separation from service, is first reports of a lumbar spine disorder to VA. A December 2016 private X-ray of the lumbar spine, given due to a clinical history of paresthesias in the legs, indicated that the Veteran had degenerative changes. In a private September 2017 DBQ, chiropractor R.M. reported the Veteran's injury in service and opined it started lumbar degeneration and thus his back conditions were incurred and aggravated by service. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his 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 file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In the present case, the Board finds that the July 2021 VA medical opinion is the most probative evidence of record, and specifically finds that it is more probative than the September 2017 private DBQ opinion of R.M., D.C. As will be discussed below, the July 2021 VA medical opinion provider provided the most thorough discussion of the Veteran's past medical history and radiological evidence. Furthermore, the medical doctor had access to the claims file and provided the most detailed analysis of the Veteran's low back disorders and explanation of how she reached her medical conclusions. A February 2021 VA medical opinion provider opined that that no nexus was established between the Veteran's service and his current back disorders. As explained in the June 2021 Board remand, the Board found that the February 2021 opinion was inadequate and ordered a new opinion. In July 2021, a VA medical opinion provider opined that congenital stenosis becomes worse when the spine develops degeneration changes due to aging or inflammatory arthritis such as the present Veteran's case. She explained that the Veteran has rheumatoid arthritis, which was diagnosed around 2016, and affected the back. That rheumatoid arthritis contributed to his current back symptoms, which per medical records started around 2016, decades after separation (in 1959). The July 2021 VA medical opinion provider noted consideration of the Veteran's lay statements, to include his description of his injuries. She noted that although he is sound of mind, he lacked the medical training to determine if the symptoms he experienced during the years were recurrent back pains, like anyone experiences over time, as opposed to chronic back problems. In contrast, the VA medical opinion provider found that the Veteran's radiological studies are incompatible with problems dating before 1960 (the Veteran separated from service in 1959). She explained that he would have bigger problems if the problems dated to before then. Rather, the July 2021 VA examiner determined that his radiological findings are compatible with aging. She reiterated that it was very well documented in the private medical records that the Veteran's onset of the back symptoms began around 2016. She further clarified that rheumatoid arthritis also played a role with the back symptoms and it was also diagnosed at more or less the same time that Veteran stated that the onset of the back symptoms occurred. She opined that the Veteran's reports about his symptoms did not align with how the currently diagnosed disability is known to develop and that his reports are generally inconsistent with medical knowledge in this specific case. In an August 2021 lay statement, received September 2021, the Veteran questioned the adequacy of the July 2021 VA examiner. He indicated that the VA examiner's "description of Congenital Canal Stenosis is totally misleading and shows a lack of candor...caused by aging or inflammatory arthritis. According to Stedman's Medical dictionary...a congenital disorder exists at birth...stenosis refers to a narrowing of a bodily canal." Also, according to Dr. P. "the condition that I was born with could have been aggravated by events in my life such when I was on active duty...Based on the findings of Dr. P[], information provided by the VA's office of General Counsel, and Stedman's Medical Dictionary the symptoms that I described about the accident align with how the currently diagnosed disability is known to develop and is consistent with medical knowledge." The Board finds, however, that the July 2021 VA medical opinion provider was quite clear in explaining that aging and inflammatory arthritis was the cause of the Veteran's recently reported back symptoms, she did not opine they were the cause of his congenital canal stenosis. Also, to the extent that the Veteran claims that Dr. P. has said that his condition could have been aggravated by events in his life such as active duty, the Board notes that such a report is not inconsistent with VA guidance that service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. Per the Veteran's report of the medical dictionary, he has a congenital disorder that existed since birth and stenosis is the narrowing of a canal. Neither concept is in question. The question before the Board is whether the Veteran's congenital back disorder was aggravated by service or whether the Veteran developed a back disorder due to service. At most, the Veteran has indicated that Dr. P. has told him it could be aggravated by active service. In Robinette v. Brown, 8 Vet. App. 69 (1995) it was held that a layman's account of what a physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. See also Warren v. Brown, 6 Vet. App. 4, 6 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). The Board notes that Dr. P. has not provided a medical opinion to VA to indicate whether she believes that the Veteran's congenital disorder was aggravated by service. In his August 2021 lay statement, the Veteran also argued that "in the greatest degree of my mental soundness, I can state that when pontoons weighing hundreds of pounds fell across my shoulder and back rendering me semi-conscious...life changing event...competently discuss my numerous years of back pain and its limiting effects on my life. It did not wait for old age to affect me." Although the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently claimed low back disorder. The issue is medically complex, as it requires knowledge of specific diagnoses and chronicity of such diagnoses and how they develop. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2021 VA medical opinion provider. Additionally, although the Veteran is currently reporting numerous years of back pain prior to old age, the private medical records do not support that contention. A December 2017 private medical record for pain management, by Dr. M.P., makes clear that the Veteran stated that his pain significantly worsened over the last 3 or 4 months, but "started about a year or so ago." In contrast, an October 2016 private new patient orthopedic note, by Dr. A.F., indicated that the Veteran was being seen for left shoulder pain, which the Veteran reported started having problems 40 years ago. At that time, the Veteran did not make any complaints regarding his back though he was seeing an orthopedist for shoulder pain. Similarly, in a February 2018 private new patient evaluation for low back pain, with S.G., PAC, the provider noted that the Veteran reported that the low back pain began early last year. The medical documentation noted above carries far more weight, credibility, and probative value than the recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such contemporaneous records are more reliable, in the Board's view, than the unsupported assertions of events now several decade past, made in connection with his claim for monetary benefits from the government. See 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). In his August 2021 lay statement, the Veteran further claims that the VA examiner 'did not provide documentation to support his contention that "your radiological studies are incompatible with problems dating before 1950..." There is no explanation of their incompatibility nor is there a statement of what pre-1960 records were being referred to.' He further conjectures that "[i]t defies logic that my shoulder could have been disabled while my back was not...according to the examiner, my back was not old enough to become disabled during my military service because I was too young." In addressing these arguments, the Board initially notes that the July 2021 VA medical opinion provider actually indicated that the Veteran's radiological studies were incompatible with problems dating before 1960, not 1950. She also did explain their incompatibility when she found that the Veteran's current radiological findings would have shown that bigger problems than currently shown if his problems had dated to before 1960. She also explained that that his radiological findings were compatible with aging. Although the VA medical opinion provider did review the entire claims file, there was no need to reference pre-1960 records when she was making a medical determination from reading more contemporaneous radiological findings and applying her medical knowledge in forming her opinions as to what such radiological findings showed. To the extent that the Veteran claims that the examiner found that his back was not old enough to become disabled in service because he was too young, this is a misreading of the medical opinion. As indicated above, the VA medical opinion provider did not opine that a back disorder could not occur because the Veteran was young. Indeed, the Board notes that the same provider found that the Veteran's left shoulder had been injured in service and that his current shoulder disorder was due to that injury; the Veteran subsequently received service connection for his left shoulder disability. Rather, she opined that the Veteran's current back disorders were not consistent with an injury that occurred decades ago. She found that his current back disorders are consistent with the aging process. She based her findings on consideration of the objective radiological findings available and her medical knowledge. As indicated in her opinion of the left shoulder, she found X-rays showed arthritis, that was likely a mix of posttraumatic and aging related. In contrast, she found that the Veteran's current back radiological findings were consistent with being only age-related. She further considered the Veteran's lay statements with each claimed disorder and medical knowledge. The Board finds that the July 2021 VA medical opinion provider's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the VA medical opinion provider did not directly state whether the Veteran's congenital stenosis was a congenital defect or disease, as requested in the June 2021 Board remand. The Board finds, however, that she sufficiently addressed the remand questions. She found that congenital spinal stenosis was known to become worse when the spine develops degeneration changes due to aging or inflammatory arthritis, and such findings regarding possible worsening are indicative of a congenital disease. The Board will give the Veteran the benefit of the doubt as to the Veteran having a congenital disease for which service connection is possible if initially manifested in or aggravated by service. The July 2021 VA medical opinion provider effectively found no such reason for service connection as she specifically found the current disorders are consistent with only age-related findings, while current problems from prior to 1960 were not indicated. As sufficient evidence is of record to decide this matter, a third remand is not supported by the evidence of record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The Board also notes that the Veteran was aware that his service treatment records were fire related, as indicated in his providing an August 2016 letter from the National Personnel Records Center (NPRC) indicating that fact and reporting that fact in his September 2017 fully developed claim (FDC) application. The FDC form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify. As the preponderance of the most probative evidence is against the claim, the benefit of the doubt rule does not apply. Entitlement to service connection for a low back disorder is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.