06-11 244

• Court: Board of Veterans' Appeals
• Decided: December 6, 2010
• Docket: 06-11 244
• Status: Unpublished

Opinion

Citation Nr: 1045633 Decision Date: 12/06/10 Archive Date: 12/14/10

DOCKET NO. 06-11 244 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1. Entitlement to service connection for a low back disorder, to include lumbar disc herniation with osteoarthritis, claimed as secondary to the service connected disability of osteoarthritis and chondromalacia of the left knee.

2. Entitlement to service connection for varicose veins of the right leg, claimed as secondary to the service connected disability of osteoarthritis and chondromalacia of the left knee.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel

INTRODUCTION

The Veteran had active service from November 1973 to August 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 Regional Office (RO) in Boston, Massachusetts rating decision, which denied the claims on appeal.

The Veteran's claims were remanded for additional development in April 2009. The requested development having been completed, the claims have been returned to the Board for adjudication.

FINDINGS OF FACT

1. The preponderance of the evidence demonstrates that a low back disorder, to include lumbar disc herniation with osteoarthritis, was not initially manifested during service or within one year of service and was not proximately caused by the Veteran's service-connected left knee disability, or other incident of service.

2. The preponderance of the evidence demonstrates that varicose veins of the right leg were not initially manifested during service and were not proximately caused by the Veteran's service- connected left knee disability, or other incident of service.

CONCLUSIONS OF LAW

1. Service connection for a low back disorder, to include lumbar disc herniation with osteoarthritis, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).

2. Service connection for varicose veins of the right leg is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the Department of Veteran's Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless.

VCAA letters dated in June 2005, April 2009, June 2009, and February 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121.

Several of the letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. In that regard, the Board notes that the claim was remanded in April 2009, in part, to obtain certain private treatment records from treatment providers identified by the Veteran, including the provider identified as having treated the Veteran for a low back problem in 1994 and thereafter, including a laminectomy at L5-S1, that according to the Veteran was considered a workplace injury. In that regard, the Board observes that the RO sent the Veteran multiple letters requesting that he provide contact information and a release to allow the RO to seek the identified records. The Veteran failed to respond to any of the letters. While VA has a duty to assist the veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (veteran cannot passively wait for help from VA). The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2010). In this case, the Board notes that the Veteran was provided VA examinations in January 2005 and October 2009. The October 2009 examiner considered the Veteran's claims of having a low back disability and varicose veins of the right lower extremity caused by a service-connected left knee injury or other incident of service; however the examiner concluded that it was more likely than not that the Veteran's disability was caused by the general nature of his strenuous post-service work with the United States Postal Service (USPS) and that the disabilities were not further aggravated beyond their natural progression by the Veteran's service-connected left knee disability or by some other incident of service. As will be discussed in greater detail below, the examiner's opinions were based on review of the claims file and/or available medical records, the Veteran's reported history, his current symptoms, and a physical examination. The Board, therefore, finds the October 2009 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

When a chronic disease, to include arthritis, becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran has been diagnosed with arthritis of the low back; however, such a diagnosis was not made within one year of service. Indeed, the diagnosis was not made until multiple decades after service. As such, service connection for a low back disability on a presumptive basis is not warranted.

To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.

The Board observes that the provisions of 38 C.F.R. § 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by service- connected one is judged. Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the non-service connected disability before an award of service connection based on aggravation may be made. This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation. For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran.

The Veteran has been service-connected for a left knee disability since August 1976. The Veteran claims that his current low back disability and varicose veins of the right lower extremity were caused by his service-connected left knee disability. Specifically, the Veteran contends that his left knee problems caused him to overcompensate and put additional strain on his right lower extremity and back in order to perform the demanding physical duties of his job with the USPS.

The Veteran's service treatment records do not indicate complaints, treatment, or diagnoses of a low back disability or varicose veins of the right lower extremity. Indeed, the Veteran concedes that his back problems and varicose veins began many years after his military service.

After service, in September 2004 the Veteran was prescribed compression stockings. Based on the Veteran's reports in his claim, in January 2005 he was afforded a VA examination. At that time, the Veteran attributed his back and varicose vein problems to his left knee disability. The examiner noted an April 2003 MRI showing mild central disc herniation and degenerative facet arthropathy at L4-L5 and mild diffuse disc bulge or herniation and degenerative facet arthropathy at L5-S1, as well as evidence of a previous laminectomy on the right and minimal disc bulge at L3-L4. The Veteran also reported that he had had a laminectomy in 1994 on his back at L5-S1, which had helped for a while but that in the previous 3 years the pain had increased. The Veteran currently worked as a mail handler for the USPS. On examination, the Veteran had some tenderness in the low back and limited forward flexion of the spine. Contemporaneous x-rays showed minimal degenerative changes to the bilateral knees and lumbosacral spine. The examiner concluded that the Veteran's back problems were unrelated to his military service, as there was no documented evidence in the service treatment records to support the claim.

Thereafter, private treatment records indicate ongoing treatment for the Veteran's low back and bilateral lower extremity problems, including steroid injections and pain medication. In May 2005, the Veteran had a steady gait that was antalgic on the right. The Veteran had decreased forward flexion. While the Veteran continued to receive treatment for back and knee pains, subsequent treatment records consistently noted a normal gait, including records from June 2005, September 2005, December 2005, January 2006, April 2006, January 2009, March 2009, April 2009, and May 2009.

In support of his claim, the Veteran submitted a letter dated in June 2009 from the Veteran's treatment provider at the above- noted private treatment facility. The physician assistant opined that the Veteran "has chronic lumbar discomfort, lumbar spondylosis secondary to years of abnormal gait/ambulation. He had a previous traumatic event at the left femur and patella many years ago and as a direct result of this, his gait has been altered. He continues to have significant knee and lumbar discomfort."

Pursuant to the Board's April 2009 remand, the Veteran was afforded another VA examination in October 2009. The examiner noted review of the claims file and medical records and specifically observed that the service treatment records were absent for complaints of back problems or varicose veins. At that time, the Veteran reported that his back problems started in the 1990s. He claimed to have had surgery in 1994 that was determined to be work-related and subsequent treatment thereafter. The Veteran denied any falls, foot or leg weakness, or unsteadiness. On examination, the Veteran had a normal gait with no evidence of abnormal weight bearing. The Veteran also had normal posture, head position, symmetry in appearance, and no abnormal spinal curvatures. Contemporaneous x-rays showed no significant changes. The examiner diagnosed degenerative disc disease. The Veteran noted that he retired a few years previously after having worked for 32 years with the USPS. As to etiology, the examiner stated that it was less likely than not that the Veteran's current low back disability was caused or aggravated by a service connected disability or other incident of service. As to rationale, the examiner concluded that it was more likely that the Veteran's current low back disability was related to the Veteran's age, his potential work-related injury at USPS with surgery in 1994, and an overuse injury due to his physically demanding job with USPS for 32 years. As such, the examiner concluded that the Veteran's injuries would have occurred due to these outlined factors and were unrelated to his military service or his bilateral knee disabilities.

With respect to his varicose vein disability, the Veteran stated that he had been having problems since the early 2000s. On examination, there was a minimal, barely visible, superficial area of mild varicose veins. As such, the examiner diagnosed minimal varicose veins of the right upper leg. As to etiology, the examiner stated that it was less likely than not that the Veteran's current varicose veins of the right lower extremity were caused or aggravated by a service connected disability or other incident of service. As to rationale, the examiner concluded that it was more likely that the Veteran's varicose veins were caused by prolonged standing and walking over more than 32 years at the USPS. As such, the examiner concluded that the Veteran's injuries would have occurred due to the nature of the Veteran's job and were unrelated to his military service or his bilateral knee disabilities.

It is clear from the record that the Veteran has current low back and varicose vein disabilities. As noted above, the Veteran contends that these disabilities were proximately caused by his service-connected left knee disability. The Board has considered, therefore, whether the Veteran's current low back disability and varicose veins of the right lower extremity are proximately due to or the result of his service-connected left knee disability. Based on the evidence of record, the Board concludes they are not.

The Board finds the opinions expressed in the October 2009 VA examiner's report to be credible and probative. The report was based on an interview of the Veteran, his reported medical history, appropriate diagnostic testing, and physical examination. Further, a complete and through rationale is provided for the opinions rendered. As noted, the examining physician considered it more likely that the Veteran's subsequent 32 year physically demanding job at the USPS and the Veteran's age the most likely cause of his current disabilities and found no evidence to suggest that the Veteran's left knee disability or other incident of service could account for the low back disability or the varicose veins of the right lower extremity. The examiner's conclusion is fully explained and consistent with the evidence of record. In that regard, the Board specifically finds that the examiner's opinion contemplated and rejected both that the Veteran's current low back and right lower extremity varicose vein disabilities were caused by his left knee disability or had been permanently aggravated by the same. The examiner's opinion clearly contemplated both causation and aggravation.

Furthermore, the Board has considered the Veteran's contentions that his current low back and varicose vein disabilities were caused by his overcompensating for left knee pain over the years at the USPS. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss the existence of low back pain and varicose veins. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Indeed, the Board acknowledges that the Veteran may be capable of diagnosing physically observable non- complex disorders, such as varicose veins. See Barr, 21 Vet. App. at 309. However, in most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current lumbar spine and right lower extremity varicose veins disabilities and his left knee disability. As such, the Board ascribes far more weight to the conclusions of the October 2009 medical professional who concluded that the Veteran's current low back and right lower extremity varicose vein disabilities were not caused or aggravated by his left knee disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).

With respect to the Veteran's low back disability claim, the Board has also considered the June 2009 letter from the Veteran's private treating physician assistant. As noted, the physician assistant attributed the Veteran's current low back disability to years of abnormal gait and ambulation as a result of his left knee disability. However, as discussed above, the only treatment record from that facility showing an abnormal gait was in May 2005. At the Veteran's next treatment, one month later, he had a normal gait and has consistently had a normal gait in treatment records at that facility from that time. The Veteran also had a normal gait during his October 2009 VA examination. During the Veteran's January 2005 VA examination there was no noted gait abnormality. Thus, the objective medical evidence of record, primarily from the same private treatment facility as where the private physician assistant works, do not support the factual basis for the June 2009 opinion. Accordingly, the Board considers the June 2009 nexus opinion to be based on an incorrect factual premise and, therefore, of no probative value here. See Reonal v. Brown, 5 Vet. App. 458 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record).

In short, the most probative medical evidence specifically rules out a relationship between the Veteran's current low back and right lower extremity varicose vein disabilities and his left knee disability. The Board places more weight on the opinion of the competent VA physician who provided the October 2009 opinions, based on review of the medical records and claims file, interview of the Veteran, and physical examination, than on the June 2009 private physician assistant's opinion based on inaccurate facts and the Veteran's lay assertions that his current back and varicose vein disabilities are related to his left knee disability. As such, no finding of service connection is warranted for either claim.

In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied.

ORDER

Entitlement to service connection for a low back disorder, to include lumbar disc herniation with osteoarthritis, is denied.

Entitlement to service connection for varicose veins of the right leg is denied.

____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs