On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota
Entitlement to service connection for lumbar degenerative disc disease, claimed as low back condition.
Appellant represented by: Jon Brown, Agent
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
T. J. Anthony, Associate Counsel
The Veteran had active service from September 1970 to June 1972.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At the hearing, the Veteran submitted additional evidence in support of his claim along with a waiver of initial Agency of Jurisdiction (AOJ) review. This evidence is accepted for inclusion in the record on appeal. See 38 U.S.C.A. § 7105(e) (West 2014).
The issues of entitlement to neurogenic bowel and bladder, erectile dysfunction, bilateral lower extremity weakness, and a cervical spine disability, all to include as secondary to lumbar degenerative disc disease with radiculopathy, have been raised by the record in a statement from the representative received in April 2014, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
FINDINGS OF FACT
The most probative evidence of record demonstrates that it is at least as likely as not that the Veteran's current lumbar degenerative disc disease with radiculopathy is causally related to his active service.
CONCLUSIONS OF LAW
The criteria for service connection for lumbar degenerative disc disease with radiculopathy have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONVA's Duty to Notify and Assist
VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2014). In this decision, the Board grants service connection for lumbar degenerative disc disease with radiculopathy. This represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance with the notification and assistance requirements, to include those set forth in Bryant v. Shinseki, 23 Vet. App. 384 (2010), is deemed to be harmless error, and further discussion of VA's compliance with those duties is not necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
The Veteran contends that he currently has a low back condition that is causally related to his active service. Specifically, he has reported that, during basic training, a drill instructor stepped on his back while he was doing push-ups. He further reports that he went to sick bay for back pain during active service, and that the back pain lasted throughout active service and continually through the present. See, e.g., April 2015 Board hearing transcript.
With respect to an in-service injury or disease, the Veteran is considered competent to report in-service events such as being stepped on by his drill instructor. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board also finds the Veteran credible in his reports as there is nothing in the record to impugn his credibility as to the reported in-service incident. In addition, service treatment records show that the Veteran was seen three times for back pain in September 1970, the same month he entered active service. Records of the first visit, dated September 4, 1970, note only that the Veteran reported back pain. Records of the second visit, dated September 10, 2015, note that the Veteran brought with him a letter from a civilian physician stating he had mild juvenile epiphysitis of two vertebrae. On examination, the Veteran was negative for spasm and tenderness, he had full range of motion, and he had negative straight leg raise tests. An X-ray was negative. He received a provisional diagnosis of rule-out spondylosis. Records of the third visit, dated September 15, 1970, note that a repeat thoracic spine series of X-rays was within normal limits. Accordingly, the record shows that the Veteran was injured when his drill instructor stepped on his back, and that the Veteran was seen on three dates in September 1970 for complaints of back pain.
Concerning evidence of a current disability, the evidence of record includes a December 2011 VA thoracolumbar spine examination. The examiner reviewed the record, examined the Veteran, and provided a diagnosis for lumbar degenerative disc disease with radiculopathy. In addition, an MRI of the Veteran's lumbar spine dated in March 2012 and contained within the private treatment records showed multilevel degenerative changes of the thoracolumbar spine.
Accordingly, the record shows that the Veteran received in-service treatment for a low back disability that was manifested by pain, and that he currently has a low back disability of lumbar degenerative disc disease with radiculopathy. Therefore, the question remaining for consideration is whether there is a causal link between the in-service injury and the current disability.
In that regard, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).
The December 2011 VA examiner provided a negative nexus opinion. Specifically, the Veteran reported to the December 2011 VA examiner the in-service incident in which his drill instructor stepped on his back. The December 2011 VA examiner, based on a review of the record and an examination of the Veteran, opined that it is less likely than not that the Veteran's current low back disability was incurred in or caused by the claimed in-service injury. As a rationale for the opinion, the VA examiner noted that the Veteran was evaluated as normal for all systems in a discharge medical examination in June 1972. She further noted that, during the discharge medical examination, the Veteran signed a statement indicating that he had informed the discharge medical examiner of all defects, illnesses, and injuries. In addition, the VA examiner noted that the Veteran had normal spine X-rays on September 10, 1970, and September 15, 1970, and that medical treatment records show that the Veteran reported that his back pain symptoms had their onset in 2003. The VA examiner concluded that, because the service treatment records document back pain only a few times, and because there is no documentation of ongoing medical care within five years of military discharge, the Veteran's in-service injury was most likely to have been a resolved, self-limited condition.
In a letter dated in October 2012, J. Thielke, D.C., wrote that he had seen the Veteran for complaints of low back pain, which the Veteran indicated started years earlier when he was stepped on by a drill sergeant during military training. Dr. Thielke noted that the Veteran's course of treatment included chiropractic treatment and referral for steroid injections. He opined, "It is my professional opinion that the injury received while in the service has caused the chronic back pain that [the Veteran] is currently dealing with."
In a letter dated in October 2012, E. Geissler, CNP, wrote that the Veteran underwent L3-4 and L4-5 lumbar fusion in May 2012. She noted that the Veteran reported an in-service incident where he was kicked in the back. She opined that, although she could not prove a direct cause and effect relationship between the in-service incident and the Veteran's current degenerative disc disease, "that incident may very well have contributed to the degenerative spine problems that led to his surgery in May."
In a letter dated in February 2013, D. Friedman, M.D., wrote that the Veteran has been suffering from lower back pain since being kicked in the back by a drill sergeant during military training in 1970. Dr. Friedman opined, "It is in my professional opinion that the injury received while in the service has caused the chronic back pain that [the Veteran] is currently suffering from."
The Veteran was examined by C. N. Bash, M.D., in a February 2014 independent medical examination. In a letter dated in February 2014, Dr. Bash summarized his findings, and provides a positive nexus opinion. Specifically, Dr. Bash indicated that he reviewed the Veteran's record, including his service treatment records; conducted an in-person interview with the Veteran; and performed an imaging-based medical examination of the Veteran. He noted the Veteran's report of being stepped on while doing push-ups during boot camp. He opined, "This type of injury would cause a hyper-flexion force to be applied to the lumbar spine, which would result in Pars Interarticularis fracture (AKA Pars fracture) and I suspect this was his injury type." He also noted the three in-service visits to sick bay for complaints of back pain. He further noted records of a March 1995 chiropractic visit during which the Veteran complained of back pain that had progressively increased over the prior four years. He acknowledged the October 2012 opinion from Dr. Thielke, the October 2012 opinion from Ms. Geissler, and the February 2013 opinion from Dr. Friedman. He opined, "It is my opinion, considering every possible sound medical etiology/principle . . . that [the Veteran's] current lumbar spine problems are due to his trauma that the patient had during military service . . . ."
As a rationale for the opinion, Dr. Bash provided a numbered list of fourteen reasons. Included in the reasons is the statement that "it is a well-known medical principle that such an injury both precipitates and accelerates the onset of the degenerative process of the spine." In making this statement, Dr. Bash cited to Orthopedics, Principles and Their Applications, 4th Ed., Vol. 2, Turek (1984), which states, "At the onset, tearing of ligaments and subluxation are manifest by local symptoms of low back pain accentuated by the .motion which stretches the ligaments . . . . Eventually, symptoms of localized degenerative arthritis are superimposed." Dr. Bash presented this principle as support for his opinion that a soft tissue injury to the spine can mature into degenerative disc disease due to destabilization, and that this is what happened to the Veteran. Dr. Bash also opined that the interval between the Veteran's in-service injury and the development of his current disability is consistent with known medical principles and the natural history of the disease. Dr. Bash further notes that there is no other, more plausible etiology for the current lumbar pathology or other risk factors found in the record to explain the Veteran's problems.
Dr. Bash also addressed the December 2011 VA examiner's negative nexus opinion. Dr. Bash states that, in arriving at his conclusions, he discounted that opinion because it does not reflect consideration of all the facts, did not assign any significance the Veteran's in-service treatment for back pain, and did not mention the March 1995 chiropractic notes. Dr. Bash further notes that the VA examiner did not provide an alternative etiology for the current spine disease or cite to any reputable sources to support her opinion that the in-service back pain was most likely to have been a resolved, self-limited condition.
In summary, Dr. Bash stated that the Veteran's current lumbar spine problems are due to his inservice back injury for the following reasons: the Veteran entered the service fit for duty; he had multiple visits for lumbar spine problems, and now has advancing lumbar spine problems; the record does not contain a more plausible etiology for his spine problems; the Veteran has not had any intercurrent injuries to his lumbar spine; the literature supports the positive nexus opinion; and no physician had provided an alternative diagnosis or history to explain the Veteran's current signs and symptoms.
The Board affords greatest probative value to Dr. Bash's positive nexus opinion. The opinion was based on a review of the medical record and on a history that was consistent with the evidence of record. Dr. Bash provided a detailed and reasoned rationale for the opinion, including citation to relevant medical literature directly supporting the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. Bash clearly explained how the available medical literature supports his finding that a soft tissue injury, such as the one the Veteran likely experienced during service, can develop into degenerative disc disease.
The Board affords less probative value to the December 2011 VA examiner's opinion. Although the opinion was based on a review of the record and an in-person interview with the Veteran, it was based, at least in part, on an inaccurate or incomplete factual premise and was not supported by a full rationale. Specifically, the examiner states that the medical records show that the Veteran reported an onset of symptoms of 2003. The Board notes that there are some medical treatment notes of record that place the onset of symptoms in 2003. For example, a note dated January 27, 2003, shows that the Veteran complained of low back pain starting approximately three weeks prior. A note dated June 4, 2009, indicates that the Veteran "dates his symptoms to 2003." However, the record also contains treatment notes showing complaints of back pain symptoms prior to 2003. For example, a note dated August 12, 1999, shows treatment for acute back pain. Moreover, chiropractic treatment notes dated March 13, 1995, show treatment for back pain that had progressively worsened over the prior four years. Thus, the record shows that the Veteran had low back pain prior to 2003.
In addition, the VA examiner based her opinion, in part, on the fact that the record does not show ongoing medical care within five years of military discharge. The VA examiner therefore limited the scope of her inquiry to the in-service complaints of and treatment for low back pain and to treatment for back pain in close temporal proximity to the initial injury. However, as noted above, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The VA examiner's opinion does not reflect consideration of the possibility that the Veteran's current lumbar degenerative disc disease with radiculopathy may be a delayed result of the in-service injury. In other words, it does not address the evidence showing that there may be a causal relationship between the in-service injury and the current disability despite a lack of evidence showing treatment during the five years following the Veteran's discharge from service. As such, the examiner did not provide a full rationale for the opinion that it is less likely than not that the Veteran's current low back disability was incurred in or caused by the claimed in-service injury, event, or illness. Accordingly, the December 2011 VA examiner's opinion is due relatively less probative value. See Nieves-Rodriguez, 22 Vet. App. at 304; Reonal v. Brown, 5 Vet. App. 458, 461 (1993).
The Board has also considered the October 2012 opinion from Dr. Thielke, the October 2012 opinion from Ms. Geissler, and the February 2013 opinion from Dr. Friedman. The Board notes that that these opinions are generally supportive of the finding made herein that service connection is warranted for lumbar degenerative disc disease with radiculopathy. However, the Board finds that the opinions are due relatively less probative value than the opinions from Dr. Bash and the December 2011 VA examiner because they are conclusory and are not accompanied by adequate rationale. See Nieves-Rodriguez, 22 Vet. App. at 304.
Based on the above evidence, the Board finds that the most probative evidence of record demonstrates that it is at least as likely as not that the Veteran's current lumbar degenerative disc disease with radiculopathy is causally related to his active service. Resolving any doubt in favor of the Veteran, service connection for lumbar degenerative disc disease with radiculopathy is therefore warranted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).
Entitlement to service connection for lumbar degenerative disc disease with radiculopathy is granted.