Citation Nr: 1453486 Decision Date: 12/04/14 Archive Date: 12/10/14 DOCKET NO. 09-30 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for residuals of prostate cancer to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1963 to September 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Diego, California. The Veteran testified at a local RO hearing in December 2009. The Veteran testified before the undersigned in October 2011 at a Travel Board hearing. These issues were previously remanded by the Board in January 2012 for further development. They have now been returned to the Board for adjudication. The Veteran's Virtual VA electronic claims file and the Veterans Benefits Management System (VBMS) paperless claims processing system have been reviewed in conjunction with the current appeal. The Virtual VA file contains an October 2014 Written Brief Presentation and VA treatment records, and VBMS contains October 2014 correspondence from the Veteran pertinent to the issues on the appeal. The issue of entitlement to service connection for residuals of prostate cancer, to include as secondary to herbicide exposure, is in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no competent and credible evidence indicating that the Veteran's low back disability is related to a disease or injury in service. Arthritis was first shown many years after service. CONCLUSION OF LAW The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, in a January 2008 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in August 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The information and evidence that have been associated with the claims file include service treatment records, VA and private treatment records, statements submitted by the Veteran, and the transcripts of the December 2009 RO hearing and the October 2011 Travel Board hearing. During the December 2009 and October 2011 hearings, the issues on appeal were explained to the Veteran and questions were asked designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103 (2014). The Board notes that the Veteran has not been afforded a VA examination of the low back. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board has found that there is no credible evidence that the Veteran experienced an injury to the low back in service and there is no competent medical evidence that the Veteran's current low back disorder is associated with active service. The Veteran's assertions alone of such a relationship are insufficient to trigger the duty to get an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a veteran's assertion that a service connected condition caused the claimed disability was insufficient alone to trigger the duty to provide an examination). VA's duty to provide an examination has therefore not been triggered. As noted, the Veteran's claim was remanded for additional development in January 2012. The Appeals Management Center sent a letter to the Veteran requesting that he provide authorization for obtaining additional treatment records, but the Veteran did not indicate that any further available medical records needed to be obtained. Records from the Social Security Administration were obtained and associated with the claims file. VA attempted to obtain any additional hospitalization records from George Air Force Base Hospital through the National Personnel Records Center in March 2012, and the VA issued a Formal Finding of Unavailability for these records in April 2012. All new evidence was considered in an August 2012 supplemental statement of the case. The Board finds that there was substantial compliance with the remand directives, fulfilling the duty to assist, as to the matter decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, 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-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran is claiming entitlement to service connection for a low back disability. The Veteran has asserted in various written statements and testimony that he was loading engine racks on cargo planes when one of the racks slipped and the Veteran wrenched his back attempted to hold it. He stated that he was later treated for a hernia caused by this injury and that he also had back pain since the day after the event, but that he was told by doctors that there was nothing they could do for the back pain and that he would likely have more serious back problems later in life. He reported that he went to sick bay due to back and stomach pain numerous times during service, but was only given pain medication as treatment. He also indicated that he has had continuous lower back pain since that time. The Veteran's service treatment records show that in August 1966 he was treated for discomfort in his left groin area. It was noted that the Veteran "states he has been in excellent health all of his life." He reported only occasional discomfort in the left groin. In June 1967 the Veteran underwent left inguinal herniorrhaphy hernia repair surgery. On his July 1967 separation examination, the Veteran's hernia repair surgery was noted as having no complications or sequelae. The Veteran "[d]enie[d] all other significant medical or surgical history." The Veteran's private records show complaints of lower back pain and diagnoses of degenerative joint disease, facet arthroscopy, and degenerative disc disease and treatment with medication, steroid injections, and physical therapy. In May 2005 he reported having low back pain for the past 5 or 6 years. In July 2005 the Veteran reported having low back pain for the past 10 years, ever since he was rear ended in a motor vehicle accident. The Veteran's VA treatment records also show numerous complaints related to low back pain and diagnoses of chronic back pain, degenerative joint disease, lumbar radiculopathy, levoscoliosis, lumbalgia, lumbar facet dysfunction, and lumbar spondylosis. March 2007 X-rays showed discogenic disease and narrowing in the lumbar spine. In August 2007 the Veteran reported having low back pain in one spot for the past 40 years. In light of the foregoing evidence, the preponderance of the evidence weighs against granting service connection. The evidence of record does show that the Veteran has currently diagnosed low back disorders, as has been noted by both private and VA physicians. However, there is no credible evidence of record indicating that the Veteran incurred an in-service injury to the lower spine and no competent medical evidence indicating that his current low back disability is related to service or had its onset during or within one year of active service. The Veteran's treating physicians have noted the Veteran's reported history of injuring his back while loading cargo in service. Such notations do not, however, constitute evidence of a relationship between the Veteran's current diagnosis and service, as they are only summaries of the Veteran's reported injuries, with no opinion provided regarding the likelihood of this event or its relationship to the current disability. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional.). There is no medical evidence of record indicating that the Veteran's current back disorder is related to an injury in service, nor has the Veteran indicated that any of his treating medical professionals have ever informed him that his currently disability was caused by an injury in service. The Board acknowledges that the Veteran has asserted that he injured his back in service and that he has had continuing symptoms of back pain since that time. However, the Board finds that the Veteran's recounting of his in-service injuries, in light of the conflicting evidence within his service treatment records, are not credible and do not provide any probative evidence on the existence of an in-service injury to the spine. The Veteran has asserted that when he strained his body in 1966 and developed a hernia, he also hurt his back at the same time. He has stated that he reported this to his treatment provider in service multiple times and was given pain medication for it. There is, however, no evidence in the service treatment records that the Veteran had any reports of pain in his back at that time. The records clearly reflect that he was treated for discomfort in his groin area, which was repeated several times. At no time was it also noted that he had pain in another area of his body. In fact, in August 1966 it was specifically written that the Veteran stated that he was "in excellent health all of his life" other than the occasional left groin discomfort. In his July 1967 separation examination, the Veteran denied any other significant medical or surgical history, and his hernia repair surgery was found to have no other complications or sequelae. The Board therefore finds that that the medical evidence is in conflict with the Veteran's assertions that he injured his back during service and had a continuity of symptomatology since that time. In reaching this conclusion, the Board considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the Federal Circuit determined that the Board had erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case is clearly distinguishable as the Board is not relying merely upon a general absence of complaints during service. Instead, the Board is relying on normal in-service examination findings and the Veteran's specific in-service denials of relevant symptoms at the time of his injury and his separation from service. Furthermore, while the Veteran is competent to report on matters observed or within his personal knowledge, as a layperson not shown to possess appropriate medical training and expertise, he is not competent to render a persuasive or competent medical opinion, as such requires medical expertise to determine such etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Hence, his assertions regarding the cause of his current lower back disorders or any previously diagnosed disorders of the spine do not constitute competent and persuasive evidence in support of the claim for service connection. The Board further notes that there are no documented complaints relating to the lumbar spine until 2005, almost 38 years since his separation from active duty service. The passage of so many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has also been greatly inconsistent in his reports about the onset of his back pain. In May 2005 he reported that the pain began 5 or 6 years ago, and in July 2005 he reported that the pain began 10 years ago following a car accident; however, the Veteran has since stated that his pain began during service. The Board therefore finds these inconsistent statements render the Veteran's claims of continuity of symptomatology since the time of service not credible. There is additionally no evidence that the Veteran's degenerative joint disease of the lumbar spine manifested within one year of discharge from service, nor has he at any time indicated that he was diagnosed with arthritis or other back disability during that time. There is therefore no evidence which would allow for a grant of service connection on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In short, as there is no competent and credible evidence that the Veteran's low back disability was incurred in or related to active duty service, or that arthritis was manifested to a compensable degree within a year of separation from service, the preponderance of the evidence is against the claim for service connection. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a low back disability is denied. REMAND The Veteran also claims that he has residuals from prostate cancer which were caused by exposure to herbicides while loading barrels of toxic substances at George Air Force Base in 1963-1967. In April 2009, an internal VA e-mail indicated that further development was needed regarding the Veteran's claims of exposure to herbicides while at George Air Force Base. While it was noted that the Department of Defense did not identify George Air Force Base as a location where herbicides were transported or stored, it also indicated that the question should be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) for further information, pursuant to M21-1MR Adjudication Procedures Manual, IV, ii, 2, (C), 10, (o), but there is no indication that such referral was ever made. Furthermore, the Veteran has submitted information from the Internet indicating that herbicides may have been at George Air Force Base, and his representative submitted an October 2014 Written Brief Presentation arguing that toxic chemicals other than Agent Orange were also stored at George Air Force Base and must be considered as potentially related to the Veteran's later development of prostate cancer. The Board therefore finds that this issue requires further development prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. Request verification from the JSRRC as to whether herbicides or any other toxic chemicals were stored in or transported through George Air Force Base between December 1963 and September 1967. All attempts to obtain such information and the responses to inquiries should be associated with the claims file. Any negative response should be noted. 2. After completing any additional development indicated by the response received from JSRRC, readjudicate the issue on appeal. If it is determined that additional opinion or examination is indicated, such should be conducted/obtained. If the benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs