Citation Nr: 1020068 Decision Date: 06/01/10 Archive Date: 06/10/10 DOCKET NO. 99-14 628 ) DATE ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Michael E. Wildhaber, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Counsel INTRODUCTION The Veteran had active military service from January 1980 to January 1983. This appeal comes to the Board of Veterans' Appeals (Board) from an August 1998 rating decision. A May 2001 Board decision denied the Veteran's claim for service connection for a lower back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court); and the Court vacated and remanded the Board's decision on procedural grounds in a September 2003 order. The Board then remanded the Veteran's claim in May 2004 for compliance with the Court's order. The Board again denied the Veteran's claim in January 2006, and the Veteran once again appealed. This time, the Veteran's claim was returned to the Board pursuant to a joint motion for remand which indicated that a more in depth discussion of reasons and bases was necessary. FINDING OF FACT The weight of the evidence shows that the Veteran's lower back disability was not caused by his time in service. CONCLUSION OF LAW Criteria for service connection for a lower back disability are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The medical evidence unequivocally shows that the Veteran has a current back disability. As such, the issue to be addressed here is whether such a disability was caused by the Veteran's military service. In support of his claim, the Veteran has submitted his own testimony, and several private medical opinions based upon his statements. However, as discussed below, the Board ultimately concludes that the Veteran's testimony is not credible and, therefore, the medical opinions that are based upon his testimony are inadequate to support a finding that the Veteran's current back disability was caused by his military service. The Veteran's theory is that he incurred a number of injuries to his back while in service, and that these injuries resulted in his current back disability. Service treatment records confirm that the Veteran injured his back on several occasions during his three years of active duty. For example, in June 1980, the Veteran complained of low back pain for the past month (on June 11) and for the past two months (on June 17). The Veteran stated that he had injured his back when he fell in a foxhole, but x-rays of the Veteran's lumbosacral spine were normal and it was noted that the Veteran had been followed by psychiatry and was thought to be voicing psychosomatic complaints. In March 1982, the Veteran again complained of hurting his back falling in a foxhole, but his spinal alignment was normal with no detectable spasm and straight leg raises were negative. The Veteran did have decreased flexion, but x-rays of the lumbosacral spine were within normal limits. A diagnosis of strain was rendered and the Veteran was given a 72 hour break from PT. However, service treatment records also describe a number of falls in service in which there was no allegation that the Veteran injured his back. For example, in April 1981, the Veteran reported that had fallen on his right lower rib cage the previous evening. The medical officer stated that the Veteran's ribs were normal with no edema or discoloration seen. There were no back complaints voiced in the record, and the Veteran's main reason for seeking treatment was to get Sudafed and to address calluses on his feet. In October 1981, the Veteran also fell off his bike, but his only complaints were about abrasions to the left side of his face (which were noted to be minor by the doctor). The Veteran reported that he was riding and something caught in the rings. No loss of consciousness was noted. The Veteran complained about hand and shoulder pain, and it was noted that he had burn scars on his back, but no orthopedic back complaints were voiced stemming from the bicycle accident. In April 1982, it was reported that the Veteran injured his left ankle falling from a truck. X-rays were negative, and there was no mention of a back injury of any kind. On a medical history survey completed in November 1982, the Veteran indicated that he had recurrent back pain, but when asked about it, he indicated that he was referring to the burns on his back (it is noted that the Veteran's lower back was badly burned in service from a fire at a barbeque). Regardless, on a medical history survey completed five years after separation, the Veteran marked "no" when asked if he had recurrent back pain. The Veteran was also noted on multiple occasions (such as in June 1980) to be seeking "Chapter 5" separation and it was thought that he was voicing somatic complaints. Despite these multiple injuries, physical examinations in July 1980, November 1982, and October 1988 all found the Veteran's spine and musculoskeletal system to be normal. Following service, the Veteran worked from 1983-85 in building maintenance, from 1985-1992 as a warehouse assistant, from 1992-93 with Army and Air Force exchange services, from 1994-95 as a correctional officer, and from 1996-99 as a security officer. The first post-service treatment record showing a back disability was a CT scan in March 1997 which showed a mild bulging of the annulus fibrosus at all levels with stenosis of the spinal canal present and no evidence of a focal disc herniation. An MRI conducted in December 1998, more than 15 years after service, revealed degenerative disc disease. Thus, the medical evidence clearly shows the presence of a current lower back disability. However, the medical opinions of record differ as to the etiology of the Veteran's back disability. The Veteran has asserted at various times that his back pain began in service and has continued to the present time. For example, at his hearing before the RO in July 1999, the Veteran indicated that he did not seek any medical treatment for his back for a number of years because he had a family to support. For VA purposes, a layperson is considered competent (e.g. qualified) to testify as to symptoms of which he or she has firsthand knowledge. See 38 C.F.R. § 3.303; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while a Veteran may be competent to provide lay evidence, competency must be distinguished 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 latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical records, an interest in the outcome of a proceeding "may affect the credibility of testimony." See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board has carefully reviewed the Veteran's statements and testimony. While the Veteran is competent to testify to symptomatology such as back pain, there are simply too many inconsistencies in the Veteran's statements to conclude that his statements are credible. For example, at an August 1998 VA scar examination the Veteran reported having back pain of a four month duration; yet less than six months later in January 1999, shortly before appealing the denial of his back claim, the Veteran reported having had back pain since 1982 at a VA outpatient treatment session. Not only does this latter statement conflict with the Veteran's statement uttered several months earlier, but it is completely undermined by the fact that he specifically denied having recurrent back pain on medical history survey that he completed in 1988. It is also noted that the Veteran was found to be manipulative at a VA psychiatric examination in August 2004. The Veteran testified at a RO hearing in September 1999 that he injured his back on a number of occasions during service when he fell from a bicycle, fell from a truck, fell from a window, and fell in a foxhole. He indicated that back symptoms had continued since service but denied having sought medical care. However, as described above, the service treatment records do not show any back injury or complaints at a number of those incidents in service, such as the fall from the truck or the bicycle. The Board will accord the Veteran's reports that are contemporaneous with the in-service events (e.g. those statements that are recorded in the service treatment records) greater probative weight than the Veteran's current attempts to recollect events that occurred more than 15 years before. This is because his contemporaneous reports will be more accurate than reports from memory after the event occurred, particularly in light of the fact that the Veteran has demonstrated repeated memory problems. For example, at his RO hearing in September 1999, the Veteran was unable to remember what hospital he was taken to after a fall in service. Thus, while the service treatment records confirm that Veteran fell from both a bicycle and a truck during service, the Veteran did not report any back complaints on either occasion. Furthermore, given the inconsistencies in the Veteran's reports, and the discrepancies between the service treatment records and his testimony, the Board concludes that the Veteran's assertion that he had back pain during service that continued until he was finally treated in the late 1990s is simply not credible. Similarly, his reports of injuring his back on several occasions, beyond falling in a foxhole, are not credible, as they are not supported by the records that are contemporaneous with those accidents. Three private medical opinions have been submitted by the Veteran suggesting a relationship between his current lower back disability and his military service, but all three opinions are inherently flawed. At a medical evaluation of the Veteran's back in August 1999, the evaluator noted both the Veteran's current disability, as well his fall into a foxhole in 1982, with no studies conducted after the initial treatment. The doctor concluded that the Veteran "shows symptoms related while active in service in the US ARMY." However, while the doctor discussed the Veteran's back condition in this letter, he also referenced weight gain secondary to a thyroid disease (which was noted to aggravate the Veteran's back condition), a pending psychiatric evaluation, and a general health status that was deteriorating. As such, the conclusion is confusing at best; and, furthermore, the statement that the Veteran "shows symptoms related while active in service in the US ARMY" hardly provides a sound medical explanation to account for the time between the Veteran's in-service injuries and his post-service back treatment. In 2005, Dr. Bash provided an opinion without examining the Veteran. Dr. Bash after reviewing the Veteran's service and post-service medical records, and conducting a phone interview with the Veteran, concluded that the Veteran's current back condition was most likely due to his multiple in-service falls. His reasoning was that the Veteran entered service fit for duty, he had multiple serious in-service falls with associated injuries; and that the literature supports an association between spine injuries early in life and the development of advanced degenerative arthritis. He went on that the Veteran has low back pain of 10/10, numbness in left lower extremity to the level of his calf muscles according to a recent evaluation dated 2000; the absence of medical records documenting any plausible etiology for the Veteran's back disability other than the in-service falls; and that his opinion is consistent with the Veteran's private doctor in 1999. However, Dr. Bash bases his opinion on the predicate that the Veteran had numerous serious falls while in service in which he injured his back. However, of the numerous serious incidents Dr. Bash documented in writing his opinion, only 2 of the 5 incidents actually involved any treatment of back pain. Dr. Bash cites to the Veteran falling off a bicycle, but the service treatment record describing that incident references the Veteran's back only with respect to scars from a previous burn injury, and the only apparent injury from the bike accident was minor facial abrasions. Similarly, he references the Veteran falling on his lower rib cage, but the service treatment record describing this injury is completely silent as to any impact on the back, and appears to be little more than a minor injury given the fact that it was the third complaint the Veteran raised at the clinic that day (after asking for Sudafed and referencing calluses); furthermore, there was not even any edema or discoloration noted as a result of the "fall". Dr. Bash also references the Veteran falling off a truck, and the Veteran did report injuring his back in this incident; however, the service treatment records themselves do not show any back injury as a result of this fall. Rather, the Veteran was treated for an ankle injury. Many years removed from this incident, the Veteran asserted that he injured his back in the fall, but his revisionist statements are completely incompatible with the service treatment records, such that they cannot be given any probative weight. For example, at his hearing before the RO, the Veteran was asked how he landed when he fell off the truck and he stated that he landed on his back. He also stated that he then was taken to the hospital, although he could not remember what hospital to which he was taken. Conversely, at a July 1999 psychiatric examination the Veteran reported that he fell from a truck in April 1982 and had low back trauma with confusion, but was nevertheless ordered to complete the drill. As such, the Veteran has offered several differing accounts of his fall, yet neither of his versions can be logically reconciled with the service treatment records as the Veteran was not even examined for his back and it seems implausible that he could have twisted his ankle (the one injury that is shown to have actually resulted from the fall) while landing on his back (as he testified he fell). As such, while Dr. Bash offers an opinion that is favorable to the Veteran, the medical evidence that is contemporaneous with the incidents cited by Dr. Bash does not support a finding that the Veteran "injured his lumbar spine" as characterized by Dr. Bash. The inaccuracy of the foundation upon which Dr. Bash based his opinion undermines the probative value of his opinion. The Veteran has also submitted a 2004 opinion from a Dr. Flores Vilar. Dr. Flores Vilar reviewed the Veteran's medical records noting degenerative disc disease in the spine, and he stated that the Veteran had a "violent accident" after falling from a truck in 1982, fell from a bicycle in October 1981, and fell in a foxhole in March 1982. Dr. Flores Vilar indicated that the Veteran had long disabling back pain with clear radiculopathy after falling on his back from a 2.5 ton truck. Dr. Flores Vilar concluded that the Veteran's pain and traumas have caused him to have very advanced degenerative arthritis with a clear radiculopathy level which has resulted in his current disability. He added somewhat confusingly that the Veteran's present disabilities are "100% of general physiological functions and related with active service in the USA Army; [the Veteran's] medical military activity active duty clinical record clearly shows that present back disability is from the falls during military service. . ." There is no specific indication that Dr. Flores Vilar actually had access to the Veteran's service treatment records. Regardless, he describes the Veteran as having a "violent accident" after falling from truck, and such a graphic depiction of the incident is simply not supported by the service treatment records which show that the Veteran was treated for a twisted ankle and did not even voice any back complaints. Dr. Flores Vilar's depiction of the Veteran's in-service injuries mirrors the Veteran's own version of the incidents. However, given that the Veteran's testimony is not found to be credible, the foundation upon which Dr. Flores Vilar has premised his opinion is not credible. Therefore, his opinion cannot be accorded much probative value as it is based on a faulty premise. Conversely, in May 2000, the Veteran underwent a VA examination. The examiner carefully reviewed the Veteran's claims folder, noting the various in service complaints of back pain, and he does not appear to have mischaracterized the service treatment records contents. Based on his review of the medical evidence and his examination of the Veteran, the examiner found that the Veteran's back injuries in service were acute and transitory and resolved with treatment. This conclusion is supported by the Veteran's separation physical which found the Veteran's back to be normal and by the physical examination of the Veteran five years after service in 1988 that also found the Veteran's spine to be normal. Noting that the Veteran did not seek treatment for his back for 15 years following service, the examiner opined that the Veteran's current back disability is not the result of falls during military service. The same VA examiner reexamined the Veteran's in October 2004, but reached the same conclusion that the Veteran's back disability was not the result of his falls during military service. The Veteran's representative has argued that the VA medical opinion should be attributed less weight as the Veteran's testimony refutes the examiner's conclusion that the Veteran's in-service back injuries were acute and transitory. However, as noted above the credibility of the Veteran's testimony has been undermined by the fact that his memory has been questioned (note that at a July 1999 private psychiatric examination the Veteran's memory was found to be mildly impaired for the past and markedly impaired for recent and immediate events); by the fact that he has been found to be manipulative (VA examination in August 2004); and by the fact that the actual service treatment records themselves created contemporaneously with the in-service incidents contradict the Veteran's recollections of the events more than 15 years after they occurred. Given that the Board has found the Veteran's testimony not to be credible, it is accorded no weight, nor are the medical opinions that are based upon it. While the Board may not ignore a medical opinion, it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases; rather, it is the Board's duty to assess the credibility and probative value of evidence, and, provided that it supplies an adequate statement of its reasons or bases, it may assign greater probative weight to one medical opinion than to another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the factual evidence best supports the VA examiner's opinion, as it did not rely on the Veteran's discredited accounts for its conclusion. Rather, he observed the medical evidence that was contemporaneous with the in- service accidents themselves and reviewed the medical examinations both at separation and five years removed from separation which found that the Veteran's back was normal. Conversely, the medical opinions submitted by the Veteran were confusing, did not accurately portray relevant history, and relied heavily upon testimony of the Veteran which has been found to be incredible. As such, the VA examiner's opinion is afforded greater weight than are the opinions submitted by the Veteran. Given this conclusion, the medical evidence against service connection clearly outweighs the evidence in its favor. As such, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. VA and private treatment records and opinions have been obtained as have service treatment records. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the Veteran testified at a hearing before the RO and was offered the opportunity to testify at a hearing before the Board, but he declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs