Citation Nr: 0815111 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-33 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a groin disorder, claimed as left varicocele. 2. Entitlement to service connection for a low back disorder, claimed as post-operative herniated nucleus populous of L4-5. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from October 1972 until September 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. In May 2006, the veteran requested review by a Decision Review Officer (DRO) of his claim on appeal. In a October 2006 statement of the case a DRO addressed his claim de novo as part of the appeal process. See 38 CFR § 3.2600 (2007). The Board accordingly considers the claim to have been properly adjudicated at the RO level, including for purposes of appellate review. In December 2007, a video conference hearing was held before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Additionally, along with his claim for service connection for a back disorder dated in December 2005, the veteran also seems to have filed a claim to reopen his nonservice- connected compensation claim. It appears that this claim has not yet been adjudicated and is referred to the RO for appropriate action. As a final procedural matter, the Board notes that the veteran submitted a statement from his spouse and from a fellow National Guard member/co-worker since the case was certified for appeal. This evidence was received after the last RO review. The Board has, accordingly, reviewed the additional evidence. As to the spouse's statement, while pertinent to the issues on appeal, is essentially duplicative of statements she offered at the hearing before the Board. As to the buddy statement, he could not recall why the veteran had left either military or civilian jobs but had some recollection that it was due to a back injury. However, his vague recollections are not applicable to the threshold issue. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. FINDINGS OF FACT 1. A chronic groin disorder is not currently shown. 2. A chronic back disorder was not shown in service or for many years thereafter, and is unrelated to active duty. CONCLUSIONS OF LAW 1. A groin disorder, claimed as left varicocele, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A low back disorder, claimed as post-operative herniated nucleus populous of L4-5, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116(a), 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 According to the law and regulations, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 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. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. 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). 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). Groin Disorder Service medical records reveal that the veteran was treated for complaints of pain in his left scrotum in February and March 1973. At that time, he was given a provisional diagnosis of left varicocele. In May 1973, he was seen at the urology clinic, which upon examination concluded that he had a probable past history of epididymitis, prostatitis. Again, a diagnosis of a chronic disease or injury was not rendered at that time. By June 1973, he showed little symptoms of any left scrotal pain. Therefore, this disorder appears to have been acute and transitory and was resolved without any residuals. Moreover, his separation examination in September 1974 found that his genitourinary system was normal. After separation from active service, there were no complaints or treatment for groin pain until 2006. In point of fact, upon VA examination in June 1987, he was found to have normal genitalia. In VA treatment records dated in March 2006, he complained of left groin pain with discomfort with some tenderness in the left testes. However, no diagnosis was rendered at that time. In this case, despite the veteran's continuous complaints of left groin pain, including his testimony presented at the hearing that he experiences discomfort and swelling, there is no objective finding of a current chronic underlying pathology. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board acknowledges the veteran's own belief that he has a diagnosis of a chronic disability that was incurred during active duty service. He is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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). For these same reasons, his spouse's testimony and lay statements asserting an opinion on medical diagnosis of a groin disorder are also no competent evidence of a current diagnosis. See Layno v. Brown, 6 Vet. App. at 470; Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Therefore, the claim is denied. Low Back Disorder The Board notes that the competent medical evidence demonstrates a current disability of the low back. Specifically, numerous private treatment records reflect diagnosis and treatment for a lumbar sacral strain and chronic disc disease. With respect to the second element of a service connection claim, that of in-service incurrence or aggravation, the Board must first determine whether a back disorder existed prior to the veteran's service. In this regard, it is noted that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111. In assessing whether the veteran was in sound condition upon entry to service, the Board notes that his service medical records are available. Although he indicated in his report of medical history dated in July 1972 that he had experienced recurrent back pain, upon objective examination on that same date, he was found to have a normal spine. Also associated with the file are lay statements from the veteran, including his testimony presented at his hearing, which asserts that the he had a preexisting back disorder prior to service. However, a mere history provided by the veteran of pre-service existence does not, in itself, constitute a notation of a pre-existing condition. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995) (independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service). Based on the evidence above, the Board finds that clear and unmistakable evidence does not rebut the presumption of soundness. Further, no other evidence of record serves to rebut the presumption of soundness here. Therefore, the appropriate inquiry is whether a back disorder was incurred, rather than aggravated, during active duty. In this regard, during service he was treated on a few isolated occasions for low back pain and an impression of chronic strain was given. However, this condition appears to have been treated without chronic residuals. Significantly, his separation examination dated in September 1974 found his spine to be normal. This evidence weighs against an in- service incurrence of a chronic disability. Moreover, the post-service medical evidence does not indicate any findings of treatment for a back disorder for many years after service. Specifically, medical records are negative for complaints or treatment for a back problem until 1979 (nearly 5 years after service separation). In this case, the Board emphasizes the multi-year gap between discharge from military service (1974) and his post-service treatment for a back disorder. Additionally, the evidence reflects that he began to experience significant back pain beginning in early 1980 as a result of a work-related injury. During the course of treatment for this injury, there were no statements made regarding any in-service treatment for a back injury or describing a previous back injury that occurred during service. This evidence and the number of years lapsed between the in-service incidents and the first post-service episode weigh against a finding of that he has experienced this disorder since active duty. The Board has considered the veteran's and his wife's statements and testimony asserting continuity of symptomatology of his currently-diagnosed back disorder and active duty service. For instance, he testified that he has had the same back problems, including trouble standing and sleeping, since active duty. His spouse also recalled similar problems existing after his separation from active duty service. The Board acknowledges that 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). The Board, however, finds that the reported history of continued low back problems since active service is inconsistent with the other evidence of record. Indeed, while he stated that his disorder began in service, the separation examination was absent of any complaints. Moreover, the post-service evidence does not reflect treatment related to a low back disorder for many years following active service. While he and his spouse have reported and testified to a history of continuing symptoms since service, such reports began in 2005, contemporaneous with his filing a claim for benefits. Indeed, clinical records showing treatment for a back disorder prior to 2006 contain no reference to on-going symptomatology since service. Further, the post-service treatment records dated prior to 2006 also fail to indicate a history of a back disorder since service. Instead, his current back disorder has been associated on numerous occasions with several work place injuries and an incident at a local hardware store. This evidence weighs against the credibility of the veteran's and his spouse's statements and testimony of on-going symptoms since service. Indeed, the absence of documented treatment, considered in conjunction with the absence of a reported in- service history of a back disorder prior to 2005, does not support a finding of continuity, however sincere their current statements on this point. In short, their current recollection as to symptoms dating back to the distant past is found to be less probative than the lengthy absence of documented treatment or documented report of continued symptoms. Therefore, the Board finds that the veteran's and his spouse's statements and testimony, while competent, are not credible as to continuity. Next, service connection may be granted when a medical nexus is established between the claimed disorder and active duty service. The Board acknowledges an opinion from a private physician dated January 2006 concluding that the veteran's back problems began while he was in the military. However, the Board places less probative value on the opinion for several reasons. First, this opinion was arrived at based solely on the veteran's reported history provided to the examiner that his back disorder, namely disc disease, began in-service. To this end, the Board finds the veteran's statements to be inconsistent with the evidence of record and of little probative value. The Court has held that the Board is not obligated to accept medical opinions premised on the veteran's recitation of medical history. See Godfrey v. Brown, 8 Vet. App. 113 (1995). Further, reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (citing Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) that Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran); see also Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (Board may reject medical opinion based on facts provided by the veteran previously found to be inaccurate); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board is not bound to accept uncorroborated account of veteran's medical history but must assess the credibility and weight of the evidence provided by the veteran rejecting it). Here, the veteran's reported history of a chronic in-service injury of his current back disorder is not otherwise supported by the evidence of record. To the contrary, the evidence reflects that he was treated on isolated occasions for back pain in-service. Further, the evidence shows that it he had a normal spine upon separation from service. Moreover, the private physician did not account for the long absence of any documented back symptomatology following the veteran's separation from military service or consider the impact of his multiple post-service injuries. Therefore, the examiner's reliance on such history lessens the probative value of his conclusions. The Board has also considered the veteran's and his spouse's statements asserting a relationship between his currently- diagnosed back disorder 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 and his spouse are competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to them through their senses. Layno v. Brown, 6 Vet. App. at 470. As lay persons, however, they are 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 and his spouse'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). Given the lack of a chronic disorder shown in service, the absence of identified symptomatology for many years after discharge, and no probative medical nexus between the veteran's current complaints and active duty, the Board finds that equipoise is not shown and the benefit of the doubt rule does not apply. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (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 February 2006, March 2006, and May 2006 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. Although the veteran's back disorder claim is an original claim, the May 2006 letter characterized it as a request to reopen a previously denied claim requiring new and material evidence. However, because the previous letters sent to him correctly characterized his claim as an original claim for service connection, VA's duty to notify was satisfied. Moreover, all 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 May 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, 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. Therefore, 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the groin claim, since no current diagnosis has been shown, a remand for a VA examination is not warranted. With respect to the low back claim, given the absence of in-service evidence of chronic manifestations of the disorders on appeal, no evidence of the disorders for many years after separation, and no competent evidence of a nexus between service and the veteran's claims, a remand for a VA examination would unduly delay resolution. Additionally, the Board notes that in an October 2006 statement, the veteran's spouse indicated that he was treated by a Dr. C. in 1975 for his current back disorder. However, the file does not contain any post-service treatment records from a Dr. C during this time period. Specifically, the earliest post-service medical evidence of record is from a July 1979 X-ray. Moreover, the veteran has never identified receiving any treatment by a Dr. C in the private post-service treatment records, during his testimony at his hearing, in any other correspondence, or in conjunction with his claim for disability from the Social Security Administration (SSA). Rather, in his testimony presented at the December 2007 hearing, he identified Dr. G. and Dr. K. as his treating physicians and both of their records have been associated with the claims file. Therefore, 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 RO has obtained VA outpatient treatment records, service medical records, and records from SSA. He submitted private treatment records, statements in support of his claim, including statements from his spouse and fellow serviceman. He was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, 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 groin disorder, claimed as left varicocele, is denied. Service connection for a low back disorder, claimed as post- operative herniated nucleus populous of L4-5, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs