Citation Nr: 0609123 Decision Date: 03/29/06 Archive Date: 04/07/06 DOCKET NO. 99-12 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for dysthymic disorder as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Esq. ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from August 1979 to October 1979. This matter comes before comes before the Board of Veterans' Appeals (Board) from a November 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied the veteran's application to reopen a previously denied claim of entitlement to service connection for a spine disability (dorsolumbar paravertebral myositis) and denied service connection for a dysthymic disorder, claimed as secondary to a service-connected disability. In an April 2002 decision, the Board denied the veteran's claims. The veteran then appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In January 2003, the parties filed a joint motion requesting the Court to vacate the Board decision on these issues and remand the issues to the Board. A July 2003 Court order granted the motion. The January 2003 joint motion also acknowledged that VA agreed that the veteran had presented new and material evidence to reopen his claim for a back disability. In October 2003, the Board remanded the appeal for further development. In an October 2004 decision, the Board denied the veteran's claims. In October 2004, the veteran filed a motion to vacate the October 2004 Board decision. In March 2005, the parties filed a joint motion requesting the Court to vacate the Board decision on these issues and remand the issues to the Board. An April 2005 Court order granted the motion. In October 2005, the Board again remanded the claims for additional development. The issues are now before the Board for appellate review. FINDINGS OF FACT 1. All requisite notices and assistance to the veteran have been provided, and all evidence necessary for adjudication of the claims has been obtained. 2. The veteran's current spine condition (dorsolumbar paravertebral myositis) first manifested years after service and is not related to her service or any aspect thereof. 3. A dysthymic disorder has not been demonstrated to be related to any service-connected disability. CONCLUSIONS OF LAW 1. A back disability (dorsolumbar paravertebral myositis) was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2005). 2. The criteria for entitlement to service connection for a dysthymic disorder, claimed as secondary to a service- connected disability, are not met. 38 C.F.R. § 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection The veteran contends that she is entitled to service connection for a back disability, and a dysthymic disorder as secondary to a service-connected disability. These claims will be addressed in turn. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for certain chronic diseases, including arthritis and mental disorders, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2005). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2005). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2005). Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service." Watson v. Brown, 309, 314 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310 (2005). Having carefully considered the veteran's claims in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claims, and the appeal will be denied. A. Back Disability Service medical records in this case are negative for complaints of or treatment for back pain. On examination in September 1979, prior to separation from service, the veteran's spine was found to be normal; on the accompanying report of medical history, the veteran indicated that she did not have a history of or currently have any recurrent back pain. The Board therefore finds that the weight of the evidence demonstrates that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection of her back disability. 38 C.F.R. § 3.303(b). While the veteran claims that she was treated for back trouble within six months of her separation from service, the first post-service clinical evidence of record regarding back pain is dated in November 1984. At that time, the veteran was afforded a VA spine examination in conjunction with her claim for service connection for a back disability. She complained of back pain extending from the mid to low back. Physical examination revealed mild to moderate lumbar kyphoscoliosis. X-ray examination revealed minimal spondylitic changes with osteophyte foration on the anterior vertebral margins. The diagnosis was dorsolumbar paravertebral myositis. Neurological examination conducted in March 1985 was essentially negative. At that time, the diagnosis of dorsolumbar paravertebral myositis was confirmed. VA treatment records dated from September 1993 to February 2000 show regular treatment for back pain, and other diagnoses regarding the back, including degenerative joint disease and spondylolysis. Treatment records dated in September 1993 and August 1999 note that the veteran's back pain began in service. However, these notations appear to have been based upon a history provided by the veteran, and are thus not considered to be probative. See Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (Transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber is a medical professional). In support of her claim, the veteran submitted a letter dated in September 1999 from Rosa A. Coca Rivera, M.D., which stated that the veteran had presented with a history of back pain since 1979. Dr. Coca Rivera indicated that the veteran reported that she had increasing back pain attributed to the strenuous physical requirements of active service. Currently, the veteran was experiencing persistent problems, causing her discomfort and limitation in physical activity. Dr. Coca Rivera did not specifically relate the veteran's current back condition to service, but rather reported what the veteran had related to her. The veteran again underwent VA examination of the spine in February 2004. At that time, the veteran reported that she injured her back during road marches in 1979. She reported that she was treated for back problems in sick call, but did not recall the treatment given. Examination of the veteran revealed current physical limitations due to her back condition. The diagnosis was dorsolumbar paravertebral myositis. The examiner noted that the veteran's service medical records did not reflect complaints of or treatment for back problems, and that available medical records did not reflect complaints of or treatment for back problems until 1984, years after the veteran's separation from service. Due to the lack of corroborating evidence, the examiner opined that it was not likely (not at least as likely as not) that the veteran's current back disability was incurred in or aggravated by active service. Rather, it was more likely that her current disability was due to the natural process of aging. In September 2005, a private physician, Craig N. Bash, M.D., reviewed the veteran's file in conjunction with preparing an independent medical opinion. Based upon a review of the file, Dr. Bash concluded that the veteran's primary problem with regard to her back was degenerative disc disease, and that this disorder caused other associated diagnoses, including dorsolumbar paravertebral myositis. Dr. Bash opined that the veteran's past and present back problems were caused by her active service. The rationale provided for this opinion was that the veteran entered service without back problems, she has continued, since 1984, to complain of back problems related to service, and no other precipitating injury has ever been cited. Dr. Bash further stated that the development of degenerative disc disease was consistent with an earlier trauma or injury to the spine. In the veteran's case, an in-service injury or trauma to her spine later resulted in the development of degenerative disc disease. In addressing the February 2004 VA examiner's opinion, Dr. Bash stated that he disagreed with that opinion because the examiner did not provide documentation of his credentials for rendering such opinion, nor did he provide literature supporting his assertions. Additionally, he stated that the examiner did not adequately consider the veteran's long standing history of back complaints. In addressing the 1984 X-ray examination showing the formation of osteophytes, Dr. Bash stated that such development was not normal for a 38-year-old woman, without antecedent injury. In December 2005, the VA examiner who conducted the February 2004 examination was asked to reconcile his opinion with that of Dr. Bash, after an additional review of the veteran's file. After such review, the examiner again noted that the veteran's service medical records for her brief period of service were negative for any indication of back problems. Her separation examination noted an ear problem, but was silent as to any recurrent back problems. Accordingly, there was no objective evidence of a back condition during service. In addressing Dr. Bash's opinion, the examiner stated that although the veteran alleged a history of back pain since service and that she received treatment for her back shortly after her separation from service, the record was silent for any evidence corroborating such allegations. The examiner acknowledged that some younger people develop osteoarthritis after sustaining injuries to the joints. With regard to an estimate as to the approximate date of onset of the veteran's condition, though, the examiner stated that without evidence of a back injury, it would be mere speculation to state when exactly her current disability was incurred. Thus, based upon the evidence of record, the examiner stated that her back disability began in 1984, the first date on which there was clinical evidence of a back condition. In the absence of clinical evidence of treatment for a back condition for years after service, the examiner concluded that it was more likely than not that the etiology of her condition dated several years after service. While the veteran alleges that she received treatment for her spine shortly after her discharge from service, there are no records which reflect treatment for spine problems dated prior to November 1984, approximately 5 years after separation from service. Thus, there is no evidence of degenerative disc disease or arthritis within the applicable presumptive period, and service connection on a presumptive basis is therefore not warranted. See, 38 C.F.R. § 3.309. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. See Degmetich, supra; Rabideau, supra. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). While Dr. Bash has opined that the veteran's current back disorder is due to her active service, the Board finds that this opinion has less probative weight than the VA examiner's opinions because there is no objective evidence that supports Dr. Bash's opinion. The Board acknowledges the likelihood, as stated by Dr. Bash, that the veteran at some point sustained trauma or injury to her back that later resulted in the development of degenerative disc disease, and associated disorders such as dorsolumbar paravertebral myositis. However, there is no competent evidence of record which supports a finding that such injury or trauma was sustained within her period of active service. Without evidence to support such a nexus, service connection is not warranted. In recent statements in support of her claim, and in reporting history to examiners, the veteran has attributed her current back problems to service; however, as a layperson, the veteran is not competent to give a medical opinion on causation or aggravation of a medical condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board acknowledges that the veteran is competent to give evidence about what she experienced. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board acknowledges the veteran's assertions that a language barrier may explain why her service medical records are silent as to complaints of back pain. The Board, however, finds this unlikely, as the service medical records demonstrate complaints regarding other ailments, including upper respiratory infections, ear pain, and cystitis. The veteran has also submitted lay statements in support of her claim. Although lay evidence is acceptable to prove symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu, supra. The weight of the medical evidence demonstrates that the veteran's spine problems began years after service and were not caused by any incident of service. The Board concludes that a spine condition was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Dysthymic Disorder secondary to a service-connected disability The veteran is attempting to establish service connection for a dysthymic disorder as secondary to a service-connected disability. Based upon statements submitted by the veteran, it appears that the veteran is claiming entitlement to service connection for a dysthymic disorder secondary to her back problems. The Board notes that secondary service connection presupposes the existence of an established service-connected disability. In this case, neither a back disability, nor any other disability, is currently service- connected. Thus, there can be no secondary service connection for any condition allegedly due to a service- connected disability. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. at 426, 430 (1994). As there is no legal basis for an award of secondary service connection for a dysthymic disorder, the claim must be denied as a matter of law. Id. Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2005). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent correspondence in September 2001, January 2004, and April 2005; a rating decision in November 1998; a statement of the case in April 1999; and supplemental statements of the case in September 2001 and January 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of that claim by the RO subsequent to receipt of the required notice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Thus, VA has satisfied its duty to notify the appellant. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has also obtained examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for a back disability is denied. Service connection for a dysthymic disorder, secondary to a service-connected disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs