Citation Nr: 1419130 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 08-16 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1969 to June 1986. His military occupational speciality (MOS) was that of munitions maintenance technician. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Fort Harrison, Montana, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran's claim of entitlement to service connection for bilateral hearing loss and denied his claims of entitlement to service connection for tinnitus and a low back disability. The Veteran submitted a notice of disagreement with the aforementioned denials in September 2007, and timely perfected his appeal in June 2008. In August 2009, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ), sitting in Fort Harrison. A transcript of that proceeding has been prepared and incorporated into the evidence of record. These claims came before the Board in June 2010. At that time, the Board granted the Veteran's claim of entitlement to service connection for tinnitus (implemented by a June 2010 rating decision) and remanded the claim of entitlement to service connection for a low back disability to the Appeals Management Center (AMC) for additional evidentiary development. Such development having been accomplished, the Board will proceed to a decision on the merits. Referred Issue The Board also notes that in July 2010, the Veteran clarified that he also wished to pursue a claim of entitlement to service connection for a cervical spine disorder. See Veteran's Statement, July 15, 2010. As such, this matter is REFERRED back to the RO for appropriate action. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran currently suffers from a low back disability that is the result of a disease or injury incurred in or aggravated by active duty service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 evidence submitted by the Veteran or on his behalf. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. VA's Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2013); 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 claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in February 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Duty to Assist The Board also concludes that VA's duty to assist has been satisfied. As noted above, the Veteran was initially provided with VCAA notice in February 2007. Shortly thereafter, the Veteran responded that he had no other evidence to give to VA to substantiate his claim. See Veteran's Response, February 7, 2007. The Board notes that the Veteran's file contained only Standard Forms 88 and 89, service entrance examinations (dated January 28, 1966) and the Veteran's dental treatment records. On February 9, 2007, pursuant to a request made to the National Personnel Records Center (NPRC) via the VA Personnel Information Exchange System (PIES), it was noted that all available service treatment and personnel records had been mailed to VA. NPRC again confirmed that no additional records were available on February 16, 2007. In March 2007, the Veteran was notified by VA that his service treatment and personnel records could not be located. Accordingly, he was requested to provide any records in his possession, to include his Department of Defense Forms 214. The Veteran was also requested to fill out and return a NA Form 13055 to assist in the rebuilding of his file. The Veteran did not return this form. On March 29, 2007, a PIES response was received, indicating that all of the Veteran's available separation documents had been mailed to VA. In May 2007, VA issued a Formal Finding of Unavailability with respect to the Veteran's service treatment records. See VA Formal Finding of Unavailablility, May 15, 2007. Shortly thereafter, the Veteran was provided with the substance of this finding, noting that all appropriate steps had been taken to locate his service treatment records, to no avail. He was also reminded that the ultimate responsibility to provide records rested with him. See VA Notice Letter, May 25, 2007. In June 2007, VA issued a second Formal Finding of Unavailability due to a typographical error with respect to the Veteran's service dates. The May 2007 Finding reflected the appropriate service dates, from January 1966 through June 1986. See VA Formal Finding of Unavailablity, June 28, 2007. The Veteran was provided with the amended notice in July 2007. See VA Notice Letter, July 10, 2007. Following the Board's remand in June 2010, the Veteran was provided a notice letter from the AMC, indicating that it would be further developing his claim. See AMC Notice Letter, July 14, 2010. In August 2011, the AMC contacted the Records Management Center (RMC) via electronic mail, pursuant to the Board's June 2010 remand directives, in an attempt to obtain any available treatment records associated with the Veteran's claims of treatment at George and March Air Force bases (AFB) in California. See AMC Electronic Mail Message, August 25, 2011. A subsequent response was received from the RMC, noting that no records were available. See RMS Electronic Mail Message, August 30, 2011. Thereafter, the Veteran was notified that the RMC did not have any of the requested records. He was also requested to provide any additional proof of his low back disability, to include buddy statements, etc. See AMC Notice Letter, September 26, 2011. In October 2011, the AMC issued a Memorandum of Unavailablity of Federal Records, noting that the RMC was unable to locate any of the Veteran's records. See AMC Memorandum of Unavailability of Federal Records, October 5, 2011. The Board is aware of the Veteran's representative's contentions that his service records were requested from the wrong location (i.e. the RMC vs. the NPRC). See VA Form 646, November 17, 2011. However, as detailed above, both the RO and the AMC have taken exhaustive steps to locate the Veteran's service records, including contacting both the NPRC and the RMC. While it is certainly regrettable that the records in question were not located, the Board finds that VA has gone above and beyond its duty to assist the Veteran in obtaining his missing service records. He has also been repeatedly informed that the ultimate responsibility to provide evidence to support his claim rests with him. The Board also notes that evidence associated with the Veteran's claim stored in electronic form (Virtual VA and the Veterans Benefits Management System) has been reviewed. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding post-service records that he wished VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in a VA examination in August 2010, the results of which have been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its June 2010 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC determined that the Veteran wished to pursue a claim of entitlement to service connection for a cervical spine disability, requested he provide additional information on the dates he was treated for a low back disability in service, and scheduled the Veteran for a medical examination, which he attended. The AMC later issued a supplemental statement of the case in October 2011. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). As noted above, the Veteran was also afforded a hearing before the undersigned AVLJ during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the elements of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim, namely treatment records from his private physician. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. (CONTINUED ON NEXT PAGE) II. The Merits of the Claim The Veteran contends that he currently suffers from a low back disability as a result of an injury sustained in active duty service. Specifically, he claims that his MOS required him to lift heavy munitions on a daily basis, causing his current low back disability. The Board disagrees. Relevant Law and Regulations 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, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities, which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Analysis In the instant case, and for the reasons stated below, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability and must be denied. With respect to Shedden element one, current disability, the record confirms that the Veteran has a current diagnosis of multi-level degenerative disc disease (DDD), most advanced at the L5-S1 interspace, associated with some of the sclerotic appearance of facets at both L4-L5 and L5-S1. See VA Spine Examination Report, August 9, 2010; Shedden, supra. Shedden element two, in-service disease or injury, has not been established by the evidence of record. As detailed above, an exhaustive search has been conducted by both the RO and the AMC to obtain any in-service treatment records associated with the Veteran's low back. Unfortunately, these records are unavailable. See VA and AMC Formal Findings of Unavailability, June 28, 2007 and October 5, 2011. Further, the evidence does not show that a low back disability was diagnosed during the one year presumptive period for chronic diseases. 38 C.F.R. §§ 3.307, 3.309. In fact, the first complaint of low back pain was not until many years after separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a low back disability weighs heavily against the Veteran's claim. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Turning to crucial Shedden element three, nexus, the Board finds that there is no competent evidence of record that demonstrates a nexus between the alleged in-service injury and the Veteran's currently diagnosed DDD of the lumbar spine. Though the Board is aware of the private medical records submitted by the Veteran, they do not support his contentions regarding his lumbar spine. Rather, there is negative evidence against a finding of service connection. During the August 2010 VA examination, the Veteran reported that he was formerly a plumber, but had retired in 2009. He specifically denied experiencing neck pain but complained of low back pain and pain directly below the right shoulder blade. The right shoulder blade pain also radiated down his right arm (this due to a 2008 fall on his right arm). With respect to the low back pain, the Veteran reported that this was intermittent at first, and then became more constant, causing difficulty sitting and standing in approximately 1983. Around that time, the Veteran reported that he sought treatment for his low back pain at George AFB. He contends that while he was not provided with a diagnosis, he was hospitalized for four days and put into traction. Thereafter, the Veteran reported that he was sent for a second evaluation in Riverside, California, where he was told that he had "muscle pull and strain." The Veteran stated that his low back pain resolved shortly thereafter and did not return until the early 1990s when he was working in construction. He managed this pain with over-the-counter medication and was allegedly told by his primary care physician that he had suffered from a low back strain. The Veteran did not report any further symptomatology until 2004, when he experienced a flare-up while working in a lumber yard. See VA Examination Report, August 9, 2010. At the time of the examination, the Veteran reported a gradual worsening of his low back pain. He noted that the pain occurred two to three times per week, lasting for several minutes each time. This pain also radiated to his hips and groin area. The Veteran indicated that he only suffered from severe flare-ups approximately one time every six months. X-rays taken of the Veteran's lumbar spine, in association with the VA examination, revealed multi-level DDD of the lumbar spine. Id. The VA examiner found that the clinical evidence indicated decreased range of motion of the lumbar spine, without objective evidence of pain. The Veteran's lower extremities were fully sensate to light tough and vibration. The VA examiner noted that there were no medical records available from 1981 to 1986, and thus no documented evidence to support the Veteran's contentions. As such, the VA examiner found that she was unable to render a medical opinion without resorting to speculation. Of particular note in support of this inability, the VA examiner referred to the February 2008 treatment record of S.K., M.D., which noted the Veteran's denial of any back pain prior to injurying his elbow when he fell in his driveway in 2008. Further, in the June 2008 treatment record of A.L.B., M.D., the Veteran reported that his neck/back pain had only existed for the prior four to six months and was aggravated by elevating his right arm over his head. Id. The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." See Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). Here, the August 2010 VA examiner's nexus opinion was limited, in part, to speculation due to the lack of medical evidence of lumbar spine treatment during the Veteran's active duty service. However, the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, as long as the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). An equivocal medical opinion may still be competent, and cannot be considered "non-evidence." See Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008). An etiological opinion, however, should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In summary, despite the speculative August 2010 VA medical opinion, the Board finds that the opinion sufficiently demonstrated a negative nexus between the Veteran's currently diagnosed DDD of the lumbar spine and his time in active duty service, due to the lack of complaints reported to his treating physicians. A veteran is expected to provide a full and accurate history of his medical circumstances in order to obtain adequate medical treatment. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Finally, the Board is certainly aware that lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that an in-service event or illness caused a current disability are insufficient. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh all the evidence and, in specific regard to any competent lay evidence, make a credibility determination as to whether it supports a finding of service incurrence or, if applicable, continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. See Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest (to include desire for monetary gain), the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran is competent to report his symptoms, but his accounts as to the specifics of his in-service injury (experiencing low back pain since the early 1980s) are contrary to his documented medical history (denying any back pain prior to a 2008 injury). Further he did not provide any evidence of complaints of or treatment for a low back disability after his discharge from service. The Veteran has also been inconsistent in his report of his symptoms, and the duration of his symptoms, depending on whether or not he is speaking to a VA medical professional in regard to his claim for benefits. Overall, his contentions have varied such that the Board does not find him to be a credible historian. Caluza, 7 Vet. App. 498. The Board finds in the instant case that the competent medical evidence of record - to specifically include the August 2010 VA examiner's speculative opinion based on varying lay evidence provided by the Veteran - constitutes persuasive evidence against his claim. The Board further finds that the August 2010 VA examiner's medical opinion is the most probative evidence of record as the report reflects that the examiner was fully informed of the pertinent medical history and provided a fully articulated opinion supported by reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. In conclusion, there is no probative evidence that the Veteran currently suffers from a low back disability as a result of his active duty service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, here, as the preponderance of the evidence is unfavorable, the claim must be denied. Id. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ SONNET GORHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs