Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0121429

Decision Date: 08/23/01 | Archive Date: 08/29/01

DOCKET NO. 92-25 018

On appeal from the Department of Veterans Affairs (VA) Regional Office in Fort Harrison, Montana

THE ISSUE

Entitlement to service connection for a back disorder.

REPRESENTATION

Appellant represented by: Sean Kendall, Attorney

ATTORNEY FOR THE BOARD

Andrew E. Betourney, Counsel

INTRODUCTION

The veteran served on active duty from November 1942 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a November 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which denied the veteran's claim for service connection for a back disorder. The veteran filed a timely appeal to this adverse determination.

In April 1993, the Board remanded this case to the RO for additional development. Following completion of the requested development, the Board, in a March 1996 decision, determined that new and material evidence had been presented sufficient to reopen the veteran's claim for service connection for a back disorder and again remanded the case to the RO for completion of additional development. The case was subsequently returned to the Board, and in a decision dated in May 1998, the Board denied service connection for a back disorder.

The veteran appealed the Board's May 1998 decision to the United States Court of Appeals for Veterans Claims (Court). The parties in the appeal filed a Joint Motion to Vacate the BVA Decision, To Remand the Case, And to Stay Further Proceedings (Joint Motion), and in an Order dated in October 1999, the Court granted the Joint Motion and vacated the Board's decision in this case.

In May 2000, the Board remanded to the RO for further development, to include obtaining a new examination and medical opinion, which has been accomplished. The case is now again before the Board for appellate consideration.

FINDING OF FACT

1. The RO has expended sufficient efforts to obtain all relevant evidence necessary for an equitable disposition of the appeal.

2. The veteran has a current low back disorder which has been medically related to the veteran's period of active duty service.

CONCLUSION OF LAW

Resolving all reasonable doubt in the veteran's favor, his low back disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).

REASONS AND BASES FOR FINDING AND CONCLUSION

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This newly enacted legislation provides, among other things, for VA assistance to claimants under certain circumstances. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as amended at 38 U.S.C. § 5103A). Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. Karnas v. Derwinski, 1 Vet. App. 308 (1991).

After reviewing the claims file, the Board finds that there has been substantial compliance with the notice and assistance provisions of the new legislation. By virtue of the Statement of the Case and Supplemental Statements of the Case issued during the pendency of the appeal, the appellant and his representative were given notice of the information, medical evidence, or lay evidence needed to substantiate his claims. When the appellant testified before an RO hearing officer in April 1992, the appellant and his representative were given notice of the evidence necessary to substantiate the claims. The duty to suggest evidence was met at the time of the hearing pursuant to 38 C.F.R. § 3.301 (2000). The RO made reasonable efforts to obtain relevant records adequately identified by the appellant, and, in fact, it appears that all evidence identified by the appellant relative to these claims has been obtained and associated with the claims folder (or, in some cases, is no longer in existence). Multiple VA examinations were conducted, including an examination as recently as June 2000, and copies of all of these reports have been associated with the veteran's claims file. A recent medical opinion has also been obtained and associated with the veteran's claims folder. A hearing was conducted before the RO, as noted above, and a transcript of the veteran's testimony has been placed in his claims file. No additional pertinent evidence has been identified by the veteran, and the Board therefore finds that the record as it stands is complete and adequate for appellate review. Therefore, the Board finds that there is no indication that there are any relevant outstanding medical records to be procured.

Further, the veteran and his representative have been adequately notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection for a back disorder. The Board concludes that the discussions in the rating decision, Statement of the Case (SOC), Supplemental Statements of the Case (SSOC) and letters have informed the veteran of the information and evidence necessary to warrant entitlement to the benefit sought, and there has therefore been compliance with VA's notification requirement. In addition, in an SSOC issued in May 2001, the RO specifically notified the veteran of the application of the VCAA to his claim, including an explanation of the new duty to assist and duty to notify provisions of this law. The Board therefore finds that the record as it stands is adequate to allow for equitable review of the veteran's claim and that no further action is necessary to meet the requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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 veteran); 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 veteran are to be avoided). Moreover, given the completeness of the present record which shows substantial compliance with the notice/assistance provisions of the new legislation, the Board finds no prejudice to the veteran by proceeding with appellate review despite the fact that implementing regulations have not yet been implemented.

The history of this case is somewhat complex. As noted in the Board's previous remand dated in May 2000, in April 1993 the Board remanded this case to the RO for additional development. Following completion of the requested development, a Board decision dated in March 1996 determined that new and material evidence had been submitted to reopen the veteran's claim for service connection for a back disorder, and again remanded the case to the RO for completion of additional development. The case was subsequently returned to the Board, and in a decision dated in May 1998, the Board denied service connection for a back disorder.

The veteran appealed the Board's May 1998 decision to the United States Court of Appeals for Veterans Claims (Court). The parties to the appeal filed a Joint Motion to Vacate the BVA Decision, to Remand the Case, And to Stay Further Proceeding (Joint Motion), and in an Order dated in October 1999, the Court granted the Joint Motion and vacated the Board's decision in this case.

In May 2000, the Board again remanded the veteran's claim to the RO, noting the Joint Motion's observation that a complete current VA examination and medical opinion were needed in order to fully assist the veteran in developing his claim. The Board thus remanded the veteran's claim to the RO with instructions that the veteran be scheduled for a VA examination of his back to ascertain the nature, severity, and etiology of any back disorder which may be present. The Board stated that the examiner should further be requested to review to entire claims file and to offer comments and an opinion as to "the likelihood that any currently diagnosed back disorder is causally or etiologically related to back complaints the veteran reported he experienced during service or to any back complaints treated during service."

In June 2000, the veteran underwent the requested examination, and the RO confirmed and continued its previous denial of the veteran's claim in July 2000. The veteran's claim is again before the Board for appellate review.

In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (2000). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred in service if they become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2000).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2000). Additional disability resulting from the aggravation of a nonservice-connected condition is also compensable under 3.310(a). Allen v. Brown, 7 Vet. App. 429, 448 (1995) (en banc).

Service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See Epps, supra; Caluza v. Brown, 7 Vet. App. 498 (1995); see also Heuer, supra and Grottveit, both supra; Savage v. Gober, 10 Vet. App. 488, 497 (1997). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence is required to support this issue. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit, supra. This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. See Epps, supra; Grottveit, supra, Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

In addition, a claim may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the case law of the Court, lay observation is competent. If the chronicity provision is not applicable, a claim may still be established on the basis of § 3.303(b) if the condition observed during service or any applicable presumption period still exists, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage, 10 Vet. App. at 498.

In determining whether an appellant is entitled to service connection for a disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant 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.A. § 5107(b) (West 1991) amended by Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C.A. § 5107(b)); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The veteran's central contention in this claim is that during his service he was provided improperly sized boots which caused him to fall and which resulted in injuries to his back. He asserts that he had chronic low back pain in service which continued after service and through the present time. He has asserted that some of his service medical records which would document such complaints may be missing. Further, in correspondence dated January 1992, the veteran informed the RO that the reason a low back disorder was not noted at his separation examination was that he was informed at the time that if he had complaints he would be retained in the military; therefore, he asserts, he did not report such complaints.

A review of the veteran's service medical records does not reflect evidence of any treatment for a low back disorder. These records indicate that the veteran was seen on at least two occasions with complaints that included backache; however, these records do not attribute such complaints to an organic back disorder. In December 1943, the veteran was seen with a provisional diagnosis of acute nasopharyngitis. It was noted at the time that the veteran complained of anterior chest pain, backache and headache, and a dry cough. The veteran was returned to duty two days later with a final diagnosis of mild, acute, catarrhal nasopharyngitis. In July 1944, the veteran was seen with complaints of backache, burning on urination, and pain in the lower abdomen. The veteran received a prostate massage at the time. Again, there is no indication that the veteran had an organic low back disorder at the time. The veteran also received treatment for calluses and plantar warts of the feet in October and November 1944. However, there is no indication in such records relating any low back complaints to improperly fitting shoes or problems with the veteran's feet. The veteran's separation examination report dated November 1945 noted that he had no musculoskeletal defects and there was no report of a history of back injury.

The veteran filed a claim for outpatient dental treatment in February 1948, and a claim for VA compensation in February 1952 for sinus and hernia problems. On neither of these occasions did the veteran report a chronic low back disorder that was related to his military service.

The veteran argues that although he treated his low back pain himself with over-the-counter medication, he did seek some professional help at a point in time close to his separation from service. However, despite attempts to procure such records, they appear to be unavailable. The medical evidence of record does include February 1973 treatment records which indicate that the veteran was seen for rheumatoid disease symptoms, particularly of the hands, and of the neck and shoulders following an automobile accident in 1962. There is no notation of a low back disorder or report of history of injury to the low back. Physical examination at the time was unremarkable for any pertinent low back disorder. Follow up treatment records reflect that the veteran was provided a blood test and X- rays. As a result of this and other records, it was reported that there was no evidence of rheumatic disease, although there was evidence of degenerative joint disease.

Correspondence dated March 1973 from Trinity Medical Center in Minot, North Dakota to Dr. McCreedy, related that a Dr. Breslich had seen the veteran in September 1963 with rheumatic complaints. The veteran was thereafter reportedly provided follow up care in December 1963, January 1964, and April 1964. Dr. Breslich did not see the veteran, however, after April 1964. In response to an inquiry from Dr. McCreedy, in March 1973 St. Joseph's Hospital reported that that the veteran had not been hospitalized at their facility, although records apparently indicated that X-rays of unspecified parts of the body had been taken in February 1957 and March 1962; the X-rays reports were apparently no longer available. In February 1974, the veteran sought life insurance from the Reserve Life Insurance Company of Dallas. The resulting application form noted a history of neck and joint discomfort, which had been diagnosed as degenerative arthritis. Physical examination of the musculoskeletal system at the time was reported to be negative. None of these records specifically note a chronic low back disorder nor is there included any history of low back injury in the 1940's.

Other relevant post-service medical records include treatment records from George Gould, M.D., of Kalispell, Montana. Those records reflect that in July 1989, the veteran reported low back pain that was radiating down his right leg, which originated a few weeks earlier. X-rays were taken and blood test was administered. The veteran was diagnosed with osteoarthritis and sciatic neuritis, and the veteran was provided Ansaid. An August 1989 follow up treatment record noted that the veteran had good improvement with medication, but pain returned when it was discontinued. Later in August 1989, Dr. Gould provided the veteran's X-rays to Edward Wettach, D.C. In correspondence dated March 1990, Dr. Wettach stated that the veteran first sought treatment from him in August 1989, and that he was diagnosed with chronic lumbalgia. Chronic lumbosacral sprain was also noted.

In correspondence dated June 1991, Dr. Wettach informed the RO that he had been treating the veteran for a lumbar injury that the veteran related had begun in late 1942 or early 1943 when he fell on a section marker while marching. Further, the veteran reported that he had a long history of back problems that began with a fall during service. Dr. Wettach opined that his care was consistent with a very old injury.

In a letter dated in December 1991, the veteran's wife informed the RO that she married the veteran in December 1945, and that the veteran had back problems ever since. She reported that he was afraid of physicians, and believed in home remedies and over-the-counter medication, such as Doan's pills. Finally, the veteran's wife stated that they sold their business in 1978 because he was experiencing additional pain in his back and hips.

In January 1992, the veteran sought treatment at a VA facility for his back complaints. The veteran informed the VA physician that he fell on a piece of wood during service, and that ever since he had had back pain. Radiating low back pain was diagnosed. In April 1992, Maurice E.K. Johnson, M.D. informed the RO that the veteran sought treatment from him the previous January, and that X-rays reflected some bony changes.

In April 1992, the veteran testified at a hearing before an RO Hearing Officer. At that time, the veteran stated that after reporting for induction he was provided boots that were several sizes too large, and that as a result, he stumbled quite often. He reported that in January 1943, while leading some men to a class through an olive orchard, he slipped and fell on a survey marker. The veteran stated that he was given aspirin and cough syrup with codeine to relieve pain. A few days later, he reportedly was diagnosed with nasopharyngitis and restricted to quarters. When he questioned treatment providers, the veteran stated that the injury would not be documented in his service medical records, as it reportedly could have led to a claim against the government. Later that year, in November 1943, the veteran stated that he continued to have back pain, but again, such was not documented. The veteran also informed the Hearing Officer that because of the secret nature of his unit, a lot of records were not kept. Finally, the veteran stated that he saw a Dr. McCardle of Minot, North Dakota, with his back complaints around 1952, but that Dr. McCardle has since been killed in an automobile accident. The veteran also commented that any resulting records would be with Dr. McCardle's widow, but that he was unsure of her whereabouts.

In July 1993, the veteran informed the RO of some of the private physicians that had treated him for his complaints of low back pain. Thereafter, the RO attempted to contact several private physicians whom the veteran indicated had provided treatment for his back complaints, including Drs. Sorenson, Conrad, Flath and McCardle. Complete mailing addresses were not provided. These development letters have since been returned as undeliverable. In correspondence dated April 1994, the Board of Medical Examiners of the state of North Dakota informed the veteran that one of the physicians whose address he sought received his license in 1906, another in 1910, another in 1946 and the other in 1953. Further, they informed the veteran that because of a fire in the 1950s, their addresses were not available.

In May 1994, the RO received statements from the veteran's commanding officer and platoon sergeant. Cumulatively, they indicated that they both remembered that the veteran had back problems in service. His commanding officer also related that while the veteran did have back problems at the time of his separation, he did not then report it, as he did not want to have any surgery, but rather desired to return to civilian life.

In July 1995, the veteran was provided an MRI from a private treatment provider. The resulting report noted that the veteran had a very minimal right lateral recess of the L4/5 disc protrusion, with no left side pathology.

In an August 1996 statement, the veteran informed the RO that another reason that he did not mention his back disorder at his separation from active service was that he did not want the military to perform surgery on his back. Finally, the veteran informed the RO in July 1997 that he received additional treatment from a George Hamilton, an osteopath, from about 1958 to 1960 for his back complaints, but that Dr. Hamilton was now deceased, and that a mailing address was not available.

Also of record is a statement dated in October 1999 from Marise K. Johnson, M.D., a physician at Kalispell Medical Offices. Dr. Johnson noted that the veteran was a long-time patient at that facility. She indicated that the veteran had reported a fall during service in 1942 or 1943, at which time he fell on a section marker while marching troops to training. He indicated that the pain in his back progressively worsened, such that he would lean on his rifle barrel for support because of the pain that would radiate down his left leg. He also stated that whenever he coughed, such as when he suffered from a respiratory infection, he had jolting pain in his left leg that would radiate down his left leg. On examination, the veteran had some left gastrocnemius muscle weakness and spasm in the lateral upper thigh muscles. His lumbosacral spine x-rays were abnormal, showing a decrease in the L5-S1 disc space. A magnetic resonance imaging (MRI) report showed a disc protrusion in the right lateral recess of L4-L5. These findings were deemed consistent with the veteran's history of bilateral lumbosacral pain upon coughing and worsening upon standing. Dr. Johnson stated in summary that "Although his pathology is not significant for the left side, localization of the injury with physical complaints and the paucity of degenerative findings elsewhere suggest this is due to a localized injury, consistent with his history of a fall during his military service."

Also of record is a statement dated in October 1999 from Edward Wettach, D.C., a chiropractor at Flathead Valley Chiropractic Clinic, a private health care facility. In this statement, Dr. Wettach stated that the veteran had been treated at his facility for "a lumbar injury that he claims began in late 1942 or early 1943 when he fell on a section marker while marching troops to training." Following a recitation of the veteran's complaints, symptoms, and findings, the examiner diagnosed chronic lumbalgia with associated leg pain due to a degenerated lumbosacral sprain, and a mid-lumbar degenerative joint condition. After noting that x-rays of the lumbosacral spine had shown a significant decrease in the L5-S1 disc space with spurring and eburnation on the posterior inferior aspect of the L5 vertebral body, the examiner stated that "This is the area that [the veteran] hurt in 1942 and I feel that all these changes are the result of the injury and would not be there is the injury had not occurred. The rest of his spine does not show this degree of degeneration, and is a more accurate indication of what the years alone have done to his spine. The rest of his lumbar spine is not really that bad." This examiner then concluded as follows:

The pain that [the veteran] has been experiencing over the years is consistent with the injury he describes, and the pain that followed that injury. It isn't normal for a man of [the veteran's] age to experience the pain pattern that he's been experiencing, and if it wasn't for the injury, I don't think he'd have any of this. Therefore, I would have to conclude that 100% of this pain is the result of his old injury.

Also of record is a statement and opinion by Craig N. Bash, M.D., a neuroradiologist in private practice. It appears that this opinion was rendered at the request of the veteran's attorney. This examiner indicated that he had reviewed a copy of the veteran's entire claims file, including letters from previous examiners, particularly those recently submitted by Drs. Johnson and Wettach, as well as lumbar spine x-rays and MRI reports. Following a detailed discussion of the veteran' service medical records, post- service medical records, and lay statements from the veteran's wife, fellow soldiers, and military commander, Dr. Bash concluded as follows:

It is my opinion that this patient's back injury in 1943, as documented by his testimony, buddy statement, commanders statement and morning reports, caused him to have advanced degenerative arthritis (disc and facets) at the L5/S1 level which has resulted in his current disabilities as documented by the VA exam on 2/28/92.

Dr. Bash supported his conclusion with quotations from previous medical reports and lay statements, as well as explanations of why the veteran's back problems were not more clearly documented in service. He further stated that he had personally reviewed the veteran's x-rays, computed tomography (CT) scan, and MRIs, which revealed disc space narrowing at L5-S1 with a grade one spondylolisthesis and bilateral facet hypertrophic changes at the L5-S1 level with bilateral foraminal narrowing. The remainder of the veteran's lumbar spine was normal for a patient of the veteran's age. He then concluded that the narrow disc space and advanced degenerative sclerosis at the L5-S1 level was out of context with the rest of his spine, and was thus likely due to an old injury. He further observed that the medical literature supported the concept that injuries to the back weaken the support structures, ligaments and disc, and thereby increased a patient's risk for developing advanced degenerative arthritis at the level of injury later in life. He then repeated his opinion that the veteran's inservice injury, as documented by the veteran's testimony, buddy statement, commander's statement and morning reports, caused the veteran's current disability of advanced degenerative arthritis at L5-S1.

In June 2000, the veteran underwent a VA fee-basis examination. The examiner stated that he had reviewed the veteran's entire claims file, but could find no reference to the alleged injury the veteran stated had occurred on January 5, 1943. He noted the veteran's report that he had slipped and fallen while marching with a rank of troops, and had struck his lumbar area on a cement survey marker. He further noted the veteran's report that he had sought treatment at the medical facility at Camp Beale, California, but had only been signed in on the "day book," with no formal notation in his medical records. The examiner noted that there was a notation in the veteran's medical records that indicated that in August 1944 he was seen for a prostate condition with a complaint of a back ache, but that his discharge examination was negative for evidence of a back disorder. He thus concluded that "there is no mention or anything in his medical records to substantiate a back disorder that occurred or was aggravated while the patient was on active duty." Following physical and x-ray examinations, the examiner diagnosed chronic L5-S1 degenerative disc disease with associated facet arthritis at L5-S1. The examiner then offered the following conclusion and opinion:

I could find no evidence of an initial injury occurring while on active duty. The reason for the above opinion is that the patient has multiple level arthritic disease (lateral osteophytes from T12 down through the sacrum). This is not the type of condition that would follow a contusion such as slipping and hitting a hard object such as he claims did occur.

I would guess that he had a lumbar contusion and did have some discomfort at the time, but this should have been short lived and totally healed by the time of discharge.

In November 2000, Dr. Bash submitted a follow-up report and opinion, based on a re-review of the veteran's medical record, including the new fee basis examination report. In preparing this report, Dr. Bash noted that his evaluation was done based on the veteran's history, physical examinations performed by other physicians, medical records, VA claims file and imaging reports/images. He indicated that an actual examination of the veteran was not required, since "a physical examination (PE) of the patient, i.e., looking and touching the patient would not reveal any information on the issue of whether the spine condition was incurred in service or whether there is a medical nexus. Such a PE would only reveal information about the patient's current diagnosis." Dr. Bash indicated that he disagreed with many of the statements and conclusion arrived at by the fee basis examiner. For example, he noted the examiner's statement that a review of the medical record showed no mention or anything in his medical records that would substantiate a back disorder that occurred or was aggravated while the patient was on active duty. Dr. Bash stated that "This is inaccurate as the patient's history, buddy statements, and medical visits are all consistent with a back injury. It is well known that 'day book' entries don't often note the cause of the visit and therefore, giving the veteran the benefit of the doubt, his day visits were likely due to his back injury as no other cause for the visits is documented in the medical record. Further, the patient has stated that the cause of these visits was for treatment of his spine injury." He further disagreed with the fee basis examiner's statement that the lateral x-rays of the veteran's spine showed moderate narrowing at L5-S1, which was probably normal for the veteran's age group. Dr. Bash countered that "I disagree with this statement as the patient on spine CT/MRI/X-rays has advanced disc disease with vacuum phenomena and which is more advanced that the rest of his mild to moderate osteophytic lumbar disease. The degree of degenerative changes visualized on all imaging modalities at the L5-S1 level is more advanced than I would expect for a person of his age group and is therefore more likely due to his in-service injury." Dr. Bash again concluded that the veteran's advanced lumbar spine disease was caused by his inservice injury to his lumbar spine, and noted that this conclusion was consistent with his previous letter and the opinions of Dr. Wettach. He further supported his opinion that the VA fee basis examiner's views were in error as follows:

I have discounted [the fee basis examiner's] opinion because he apparently did not take a complete patient history concerning the chronicity of this patient's back complaints, apparently did not review my previous letter or the complete medical record to include all CT's/MRI's/plain spine x-rays, and he is not a board certified radiologist so his interpretations of the X-rays are not official. Furthermore, he inaccurately interpreted the spine films he took in his own office on 8 June 2000 and did not make any comparison to previous spine films, CT scans or MRIs.

A review of this evidence reveals that there are conflicting medical opinions regarding the etiology of the veteran's back problems. Several examiners - including Drs. Wettach, Johnson, and Bash, have opined that the veteran's current back disorder had its onset in service, while the fee basis examiner concluded just the opposite. However, the Board finds that the opinions favoring an inservice etiology of the veteran's back disorder are more probative and persuasive than that of VA examiner for several reasons. First, while the opinions of Drs. Wettach and Johnson may be given significantly less weight on account of the fact that they both relied on the veteran's own reported history in rendering their opinions, the same cannot be said of Dr. Bash's opinion. On the contrary, Dr. Bash specifically noted that he had not even met or examined the veteran, but instead based his entire opinion on the medical record, including a review of the veteran's service medical records and morning reports. Since Dr. Bash did not rely upon the veteran's own memory of events 50 years earlier, but instead reviewed, interpreted, and cited to specific service medical records in support of his opinion that the veteran injured his back in service, the Board must attach significant weight to his medical opinion. While the VA fee basis examiner also reviewed the veteran's claims file, the Board observes that Dr. Bash, in his second statement, pointed out several items of evidence that the examiner did not address, as indicated above. Of particular note is the fact that the fee basis examiner did not address Dr. Bash's December 1999 opinion finding that the veteran's current back disorder was related to an inservice injury. By contrast, Dr. Bash not only addressed the examiner's opinion, but specifically explained, almost line by line, why he disagreed with his findings and conclusions.

Second, Dr. Bash stated his opinion with certainty, affirming on two occasions that "It is my opinion that this [veteran's] back injury in 1943, as documented by his testimony, buddy statement, commanders statement and morning reports, caused him to have advanced degenerative arthritis (disc and facets) at the L5/S1 level which has resulted in his current disabilities." By contrast, the fee basis examiner did not find the veteran's account of an inservice back injury implausible or even unlikely, but merely conceded only that he "could find no evidence of an initial injury occurring while on active duty." The VA fee basis examiner's opinion, therefore, is not necessarily in opposition to Dr. Bash's opinion, (i.e., he did not opine that the veteran's back disability was of a type which would indicate a more recent, post-service origin), but rather simply found the record insufficient to support the veteran's claim.

Third, Dr. Bash supported his medical opinion with extensive citations to previous medical reports and findings and expert medical literature, and provided clear, specific reasoning for his opinions. He determined that the nature and extent of the veteran's back problems, limited primarily to the L5- S1 disc space level, were "out of context" with the level of deterioration of the rest of the veteran's spine, and with other persons in his age group. His opinion on this matter is entirely consistent with the opinions of Drs. Wettach and Johnson. Indeed, Dr. Wettach noted that the area that the veteran allegedly hurt in 1942 was significantly worse than the rest of his spine, and commented that the rest of his spine, which did not show such a degree of degeneration, was "a more accurate indication of what the years alone have done to his spine." The Board has given significant weight to the opinions of Drs. Wettach and Johnson regarding this matter, since they both treated the veteran's back problems over many years, thus allowing them to establish a baseline of what constituted a "normal" rate of spinal deterioration for this particular veteran.

Finally, the Board notes that both the veteran's commanding officer in service and his platoon leader stated that the veteran suffered from back problems in service, and indicated that the veteran was unable to perform some tasks in service due to his back trouble. Similarly, the veteran's wife stated that the veteran had suffered from back problems ever since the time of their marriage in December 1945, a few weeks after the veteran's discharge. In this regard, the Board notes that while lay witnesses are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board finds that these opinions are fairly specific and detailed as to the veteran's complaints and their impact on his ability to function, and are thus quite credible, particularly since they came from the veteran's superiors, whose position undoubtedly required that close attention be paid to the physical condition of the soldiers which they led.

Thus, the Board finds that the evidence raises at least a reasonable doubt that the veteran's current low back disorder was incurred in service. Resolving all such reasonable doubt in the veteran's favor, as the Board must, (see 38 U.S.C.A. § 5107(b) (West 1991) amended by Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3, 114 Stat. 2096 (2000) (to be codified at 38 U.S.C.A. § 5107(b))); 38 C.F.R. § 3.102 (1997)), the Board determines that service connection is warranted for a low back disorder.

ORDER

Service connection for a low back disorder is granted.




S. L. KENNEDY

Member, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106