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.
