Citation Nr: 1736584	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-20 702	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for lumbar sprain/strain and lumbar degenerative disc disease (claimed as residuals of back injury).


REPRESENTATION

Appellant represented by:	John P. Dorrity, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to July 1988 and from January 1991 to June 1991.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the service connection claim currently on appeal.

The Veteran testified before the undersigned in a July 2014 Travel Board hearing, the transcript of which is included in the record. 

This matter was remanded by the Board in December 2014 for additional development.  The requisite development having been completed, the directives have been substantially complied with as to the issue decided herein and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

Lumbar sprain/strain and lumbar degenerative disc disease (claimed as residuals of back injury) was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.


CONCLUSION OF LAW

The criteria for service connection for lumbar sprain/strain and lumbar degenerative disc disease (claimed as residuals of back injury) are not met.  38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter pertinent to the instant claim in October 2009, before the unfavorable adjudication of this issue in June 2010. An additional VCAA letter was sent in March 2010. These letters advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability ratings and effective dates are determined. As the original letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. The Board's previous remand of December 2014 requested any further private and VA records be associated with the Veteran's claims file; no additional records were found either with VA or from the Veteran.  All private treatment records authorized for release or submitted are associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in March 2010 and June 2016. The Board finds that collectively the examinations and opinions provided were adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, and conducted thorough medical examinations of the Veteran.

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist is satisfied.

II. Service Connection for Lower Back Disability

A. Legal Criteria for Service Connection

Generally, to establish service connection 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).  Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Arthritis is a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §3.303 (b) apply to the claim.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection.  38 C.F.R. § 3.303 (b). 

Additionally, where a Veteran served ninety days or more of active service, arthritis becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a).  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). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2014).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

B. Lower Back Disabilities Evidence and Analysis

The Veteran is claiming service connection for lumbar sprain/strain and lumbar degenerative disc disease (claimed as residuals of back injury).  He has contended that his lower back disorder is due to an injury in service that occurred in April 1987 while on duty as a military policeman during active service.

The Veteran has asserted that he was on duty as a military policeman at his duty station directing traffic when he was hit in the back by 2x4 pieces of lumber extending out the back of a truck. The service treatment record at the time indicated an abrasion to the back caused by a 2x4 board, no loss of consciousness, pain specified to site only, abrasion, no lacerations, mild swelling noted, ecchymosis, wound cleaned with hydrogen peroxide.  No further mention of this injury or residuals is present in the Veteran's service treatment records, to include his separation examination in June 1988. The June 1988 separation examination shows that the clinical evaluation of the spine was normal and no defects were noted. A subsequent service examination done for the purposes of the Veteran's reserve duty in August 1990 also was silent for any mention of residuals of the 1987 injury or any other back problems.

The Veteran provided a note from his private orthopedist regarding a May 1998 consultation, where the physician noted complaints of muscle spasms and localized pain in the lumbosacral spine.  The Veteran denied any loss of sensation or "pins and needles" to either lower extremity.  He denied any loss of bowel or bladder function.  The orthopedist noted that sensation, motor function and deep tendon reflexes are present bilaterally in the lower extremities.  The overall diagnosis was a bilateral paraspinal muscle spasm with an otherwise normal exam.

In August 1998, the Veteran presented at his local emergency room due to complaints of back pain. The emergency room physician noted the Veteran had been in pain for approximately two days prior, but there was no radiation of the pain, no tingling, no numbness, and no weakness.  This physician noted there was a history of an injury 3 years ago.  The diagnosis was mild paravertebral lumbar tenderness without spasm.

Private medical records regarding the Veteran's back condition include an April 1999 follow-up treatment notes indicating complaints of back pain and that the Veteran is receiving physical therapy for his disorder.  A June 1999 MRI indicated disc degeneration with herniation at L2-L3 and L5-S1; hypertrophic degenerative arthritis of the lumbosacral spine was noted.  There was a suggestion of moderate stenosis noted of the spinal canal at the L4-L5 level, but no evidence of foraminal stenosis, and no abnormal signal changes can be identified in the bony structures to suggest posttraumatic or neoplastic changes.

On VA examination in March 2010, the Veteran stated his back pain had developed "over the years," with some discomfort daily.  He stated he gets incapacitating episodes approximately 5-6 times a year lasting from a few days to a week in duration.  There was no radiation of pain down his legs, and no bowel or bladder changes.  There was no weakness or any history of cancer.  There were no hospitalizations noted at the time and no history of surgery.  The examiner remarked there was no interference with job or daily activity except when he gets the flareups, and then he would have trouble lifting and bending. This examiner noted deep tendon reflexes even at 2/4; muscle strength is 5/5 distal and proximal in both lower extremities. Sensation is grossly intact to light touch, and muscle tone is normal. Straight leg raise test is negative bilaterally.  The Veteran's spine had no axial tenderness, no deformities, no cellulitis, no scoliosis, no muscle spasms. After repetitive motion of the lumbosacral spine there is no additional limitation of joint function due to pain fatigue or lack of endurance.  The examiner noted from x-rays taken that there was no acute fracture or subluxation, but multilevel degenerative disc disease with changes most pronounced at L5-S1, along with facet joint osteoarthritis and vascular calcification.  The diagnosis was a lumbar strain/sprain, along with lumbar degenerative disc disease.

In his opinion that accompanied this examination, the examiner stated the Veteran's current back condition is less likely than not caused by or a result of his military service.  The examiner noted the April 1987 accident that was diagnosed at the time as a contusion and abrasion of his lumbosacral spine.  However, the examiner continued, if the Veteran's current back condition was caused by the April 1987 accident, he would have been in severe pain and sought additional medical treatment at the time, besides the one treatment noted.  The Veteran would have been in more severe pain and would have required possible hospitalization or physical therapy if it were severe enough to cause a back condition 20 to 30 years later.

In May 2016, the Veteran received another VA thoracolumbar spine examination. He was formally diagnosed with degenerative arthritis of the spine, with spinal stenosis and a herniated lumbar disc.  The examiner noted no signs of radicular pain or other signs of radiculopathy, nor any signs of spine ankylosis.  There was no intervertebral disc syndrome noted.  Current imaging studies (taken that day) indicated the presence of arthritis with slight progression of multilevel degenerative changes.  Facet joint osteoarthritis L4-5 and L5-S1 was unchanged, with no acute fracture or subluxation.  Calcification abdominal aorta showed an interval increase.  The examiner finished by noting that the Veteran's thoracolumbar spine condition should not impact his ability to work.

In his opinion, this VA examiner stated the Veteran's condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner's rationale was that the Veteran originally had a contusion injury in April 1987, a soft tissue injury, which had healed.  The examiner noted this April 1987 injury would not have accounted for the MRI findings of the herniated disc and the stenosis, and that these injuries were due to daily wear and tear, age, and not caused by a contusion.

The Veteran has provided lay statements, which assert the circumstances of his accident in April 1987 while on active duty, and his statements that the original injury certainly "could" have been the cause of this lumbar degenerative disc disease which has been diagnosed. The Board acknowledges the Veteran has competently and credibly reported his back symptoms, and notes the Veteran's current diagnoses of his back issues, which satisfies the first prong of service connection, that of the presence of a current disability.

A lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The Veteran's observed symptoms described may be useful to an expert in evaluating whether the Veteran has a back disability and in determining the etiology thereof.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  However, because the record does not indicate that the Veteran has medical expertise, the Veteran's lay opinion that he has residuals of a back injury or other disability and that such disability is related to service, exceeds his capability as a lay person and is of no probative value.  Lay evidence can be competent and sufficient evidence of a diagnosis, or to establish etiology, if (1) the 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, 492 F.3d at 1376-77 (Fed. Cir. 2007); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

One contradictory medical opinion exists as to possible nexus between the Veteran's 1987 injury and his current disability. The Veteran's private physician, Dr. G., provided a July 2014 opinion stating that the Veteran's chronic back pain stems from an injury in 1987, when he was hit by a 2x4, when he was in service.  No rationale was offered to support this opinion, and as such, the Board finds this statement by Dr. G. to be of no probative value. The medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007).

On the other hand, the Board finds that the March 2010 and June 2016 VA examinations and opinions are of significant probative value, as the VA examiners have the requisite medical expertise to render a diagnosis of and a determination as to etiology of the Veteran's back disabilities.  Further, the VA examiners provided rationale for their opinions and based the opinions on the Veteran's history, lay statements, a review of the claims file, and examination of the Veteran over two different periods of time.  

While the Veteran is competent to report back pain at the time of the 1987 injury, the Veteran does not possess the requisite medical background necessary to provide a competent opinion as to causation in this matter, where, as here, the etiology of the Veteran's current back diagnoses and a relationship to trauma decades earlier involves a complex medical question not capable of lay observation.  

The Board finds that the weight of the competent and probative evidence does not demonstrate that the Veteran's current back disabilities are related to his in-service injury, service connection on a direct basis for those disabilities is not warranted.  

Service connection is not warranted on a presumptive or continuity of symptomatology basis.  Again, for the Veteran's disabilities to qualify for service connection on a presumptive basis, the evidence would have to show that his arthritis of the low back developed to a compensable degree within a year of his active service.  38 C.F.R. §§ 3.307, 3.309.  Here, however, there is no such evidence.  Indeed, the earliest evidence of complaints of or treatment for the Veteran's back disabilities come from treatment records dated in 1998, some 17 years after the Veteran's active service.  As there is no evidence of the Veteran's diagnosed arthritis being manifest to a compensable degree within a year of his active service, service connection on a presumptive basis must be denied.

Similarly, as to the continuity of symptomatology, the Veteran contends that he has suffered from back pain continuously since his 1987 injury.  On this point, however, the record reflects inconsistency in the Veteran's statements and descriptions of his pain and injuries.  As noted above, no such disabilities were noted at the time of the Veteran's June 1988 separation examination or the reserve duty examination of August 1990.  When the Veteran first sought treatment for his neck and back from VA sources in October 2009, the Veteran stated that he had suffered from this pain "for years"  In subsequent records, to include his hearing, the Veteran stated that he had suffered from back pain for 40 years, and he then later described his in-service combat injuries.  The inconsistencies in both the Veteran's descriptions of the history and duration of his back pain, as well as the lack of symptoms noted at his separation examination lead the Board to find the Veteran's descriptions of a continuity of symptomatology not credible.  Absent any competent and credible evidence of a continuity of symptomatology, service connection on this basis must be denied as well.  

In summary, the Board finds that the competent evidence of record does not show that the Veteran's current lower back disabilities are related to his in-service injuries.  The evidence further does not show that the Veteran's back arthritis were manifest to a compensable degree within a year of his active service, or that there was a continuity of symptomatology between the Veteran's in-service injuries and his current disabilities.  As such, service connection on a direct, presumptive, and continuity of symptomatology bases is not warranted.  

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection.  As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.



	(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to service connection for lumbar sprain/strain and lumbar degenerative disc disease (claimed as residuals of back injury) is denied.




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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