Citation Nr: 0811232 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-10 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from October 1944 to July 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The competent medical evidence shows that the veteran has a current back disorder. 2. The competent medical evidence does not show a relationship between the back disorder and an in-service disease or injury. CONCLUSION OF LAW The competent evidence shows that the current back disorder is not related to active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A September 2005 VCAA letter informed the appellant of what evidence was required to substantiate his claim for service connection for a back disorder. This letter also informed him of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. Therefore, the Board finds that the requirements of VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. With regard to the duty to assist, the claims file contains the veteran's service medical records, VA treatment records, VA examinations, and private medical records and letters. The veteran's private treatment records for the years 1952 to 1995 regarding his back are unavailable. The VA was informed by the chiropractor that he sold his practice and the medical records were subsequently thrown away. The veteran also provided lay statements to prove his claims. Additionally, the claims file contains the veteran's statements in support of his claim. The veteran submitted Form 646 dated April 2007 certifying that he rested the appeal on the answers to the statement of the case and he had no further argument. There is no indication in the file that there are additional relevant records that have not been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. Merits of the Claim for Service Connection Legal Criteria Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A disorder will be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumption period, and that the veteran still has the same disorder. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumption period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). If the disorder is not chronic, it will still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Savage, 10 Vet. App. at 497. Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Heuere v. Brown, 7 Vet. App. 379, 384 (1995). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eyewitness account of a veteran's visible symptoms. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The veteran claims service connection for a back disorder. He contends that he slipped on some steps on a ship and injured his back during a typhoon in the Pacific Ocean while in military service and that he has had problems with his back ever since that injury. The RO denied this claim in a September 2005 rating decision. The veteran appeals this decision. In this matter, the evidence shows that the veteran has a current back disorder. Magnetic Resonance Imaging in April 2005 showed the veteran with degenerative disc and joint disease at all lumbar levels, but most severe from L5 to S1 in terms of disc space narrowing. Private medical records also show the veteran's complaints of back pain, x-ray and Magnetic Resonance Imaging showing degenerative disc disease and two surgical procedures on the veteran's back. There is no medical evidence that the veteran injured his back in service. The service medical records do not show that the veteran complained of any back pain or that the veteran was treated for any back problems while in service. The July 1946 exit examination report reveals that the veteran's back was normal. However, the veteran submitted a statement dated December 2006 from a fellow service member who served with the veteran on the same ship. The service member asserted that he witnessed the veteran fall down metal stairs leading to the engine room and that afterwards the veteran complained about the pain in his back all the time. The U.S. Court of Appeals for the Federal Circuit has held that "[w]hile the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of records does not, in and of itself, render lay evidence not credible." Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed.Cir.2006). Furthermore, the veteran's chiropractor from 1952 or 1953 to 1995 wrote a letter stating that the veteran mentioned he injured his back while in service. In weighing the evidence, the Board determines that the evidence regarding an in-service back injury is in equipoise, and therefore the benefit of the doubt will be given to the veteran. There is objective evidence that the veteran sought treatment for his back during the years following the veteran's discharge from service. The veteran's private chiropractor asserted that he treated the veteran from 1952 or 1953 until 1995 for his lower back problems and that he recalls the veteran brought records with him from his previous treatments that date back to 1946. See private chiropractor letter dated in March 2006. However, the veteran stated that after he returned home after military service, he engaged in manual labor, such as lifting milk cans and balling hay. See Notice of Disagreement dated November 2005. He then started having problems with his back and sought treatment from a chiropractor. Id. It is important to note that the medical treatment records do not indicate that the veteran attributed his back pain to the fall he had in the Navy. See hospital records dated in October 1958, April 1988, December 1994 and May 2003 VA treatment records. Hospital medical records from October 1958 where the veteran underwent a laminectomy noted that the veteran worked in construction and had previously injured his back from lifting some heavy planking about one year prior to the surgery. The records noted that there was no other medical history that contributed to the veteran's current condition. In 1994, the veteran sought treatment for incapacitating back pain and the medical history documented the veteran stating that he hurt his back in 1957 and he experienced pain on and off ever since that incident. The medical records indicate that the veteran first attributed his back pain to the fall in service at the April 2005 VA examination. The Board finds that the statements the veteran made to his health care provider in 1958 and 1994 to be more probative than that made in the 2005 VA examination, which occurred many years later. None of the medical records over the many years the veteran had been treated for his back disorder note the veteran stating he had initially hurt his back while in the military. The veteran's lack of statements attributing his back disorder to military service or even mentioning the in-service injury in the process of seeking treatment is highly probative because the veteran has a strong incentive to tell the truth when seeking medical care. Furthermore, the competent medical evidence of record does not support the veteran's contention that his current back disorder is related to the back injury in service. After review of the claims folder and private medical records provided by the veteran and the examination of the veteran, the January 2005 VA examiner concluded that it was less likely as not the veteran's current back disorder was related to the fall in military service. There is no other competent medical evidence that links the veteran's current disorder to his service. Moreover, the medical evidence from the physician who treated the veteran for lower back pain at Holy Cross Hospital in October 1958 noted that the onset of the veteran's back pain was from the incident where the veteran tried to move some heavy planking while working for a construction company causing the veteran to sustain acute pain in his low back. The physician noted that the veteran's history was non- contributory to his back disorder. This is strong evidence against a nexus between the veteran's current disability and his injury in service. The Board notes that the veteran is competent to report his symptoms, such as his back pain and the onset of that pain. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). In addition, the veteran's wife and brother are competent to report observing the veteran experiencing pain in his back. However, the veteran, his wife, and his brother are not medical professionals and their statements do not constitute competent medical evidence in regard to diagnosis or etiology. Id. (lay persons are not competent to offer evidence that requires medical knowledge). Therefore, the veteran, his wife, and his brother are not competent to state that the veteran's current back disorder is related to the fall in service. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the veteran's claim for entitlement to service connection for a back disorder is not warranted. ORDER Entitlement to service connection for a back disorder is denied ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs