Citation Nr: 0814273 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-02 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from April 1951 until June 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. This matter was before the Board in July 2007. At that time, the Board determined that new and material evidence had been received to reopen previously denied claims of entitlement to service connection for back and headache disorders, and remanded the underlying service connection claims for additional development. The case is now returned to the Board for disposition. FINDINGS OF FACT 1. The veteran fell from a gun platform while in service; however, no chronic residuals were noted at the time of service separation. 2. Back or headache symptoms were not reported until over four decades following separation from service and are unrelated to service. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. Headaches were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the service medical records do not show complaints or treatment referable to a back or headache disorder. The separation examination in June 1954 revealed normal findings. Although not indicated in the service medical records, the claims folder contains several lay statements from fellow servicemen who witnessed the veteran fall from a gun platform in 1953, landing on his back and also hitting his head. However, while conceding from this credible lay evidence that the veteran fell in service, it appears that any injury resolved without residual prior to discharge. As noted, his separation examination was clinically normal. Following service, treatment for back complaints is first demonstrated in VA clinical records dated in 2002. Headaches are not objectively indicated until a VA examination in 2007. In both cases, the post-service findings arose well over 40 years from the veteran's separation from active service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges a statement submitted by the veteran's wife in 2002, in which she stated that she met the veteran in 1954 and had always known him to have back pain and headaches since active service. In this vein, the Board notes that she is competent to give evidence about his observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the absence of documented complaints or treatment for several decades following military discharge is more probative than the wife's current recollection as to symptoms that the veteran experienced in the distant past. Therefore, continuity has not here been established, either through the competent evidence or through lay statements. Even in the absence of demonstrated continuity of symptomatology, a grant of service connection would be warranted if the evidence contains a competent medical opinion causally relating the current disorders to active service. Here, with respect to the headache claim, no such opinion exists. In fact, in September 2007, a VA examiner stated that because the data in the claims file was insufficient, he could not address the etiology of the veteran's headaches without resorting to speculation. Unfortunately, the law provides that service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Regarding the back claim, a VA examiner in September 2007 suggested that it was at least as likely as not that the veteran's current back disorder was attributable to the in- service fall. However, the examiner emphasized only that it was "highly possible" that there was a causal relationship. Thus, the overall opinion was deemed unclear and equivocal, and was returned to the examiner for clarification. In October 2007, the same examiner explained that it was "possible" that the in-service back injury was severe enough to be responsible for the current symptomatology; however, based on the absence of treatment for over 40 years after separation from service, she concluded that it was unlikely that such relationship existed. Based on the above, the Board finds that the greater weight of the probative evidence fails to demonstrate that the veteran's current back disorder is causally related to active service. The September 2007 opinion was unclear, and when that same examiner had the opportunity to further explain herself she unquestionably found the possibility of a nexus to service to be less likely than not. Therefore, the weight of competent medical evidence does not support the claim. The Board has also considered the veteran's statements asserting a relationship between his currently-diagnosed back disorder and headaches and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). Next, the Board has also considered whether the one-year presumption is applicable. Specifically, while arthritis is regarded as a chronic disease under 38 C.F.R. § 3.309(a), in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). As the evidence of record fails to establish any clinical manifestations of lumbar arthritis within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. In sum, there is no support for a grant of service connection for a back disorder or for headaches. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in May 2002 and August 2002 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in August 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Based on the foregoing, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains his service medical records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of his claims are of record. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. For the above reasons, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a back disorder is denied. Service connection for headaches is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs