Citation Nr: 1039661 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 03-32 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1957. This matter was last before the Board of Veterans' Appeals (Board) in April 2010, on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran requested a hearing at the VA Central Office in connection with his claim, but submitted an October 2003 written statement withdrawing his hearing request. 38 C.F.R. § 20.704(d) (2009). The Board observes that, in April 2010, the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a back disability was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. As the claims file does not reflect any development of this issue, it remains REFERRED to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has been diagnosed with degenerative back disease, but he is not shown to have a back disability due to any event or incident of his service. CONCLUSION OF LAW The criteria for the establishment of service connection for degenerative back disease are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete his claims. The Veteran was notified in an October 2009 letter regarding what information and evidence was needed to substantiate his claim for a low back disability. A letter dated September 2007 advised the Veteran of how VA assigns disability ratings and effective dates in compliance with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). As such, the Board finds that the duty to notify has been met. This case was remanded in April 2010 for the AMC to attempt to collect early (prior to 1993) VA treatment records and to provide the Veteran with a VA examination. The claims file reflects that the AMC made multiple attempts to collect the records sought, but the records were not available. In accordance with the remand, the Veteran was notified in a July 2010 letter that the prior VA treatment records could not be located. An examination was conducted in August 2010. Thus, the Board finds that all actions and development directed in the April 2010 remand have been substantially completed. Dyment v. West, 13 Vet. App. 141, 146- 47 (1999), see Hood v. Shinseki, 23 Vet. App. 295 (2009) (Reaffirming that the mere fact that the Board did not obtain the specific report previously requested in Board remand is not necessarily a violation of Stegall, if expert opinion otherwise obtained was sufficient to address the relevant inquiry); D'Aries v. Peake, 22 Vet.App. 97 (2008) (substantial compliance, not strict compliance, is required under Stegall). The Board observes that a portion of the Veteran's service treatment records are not associated with the claims file. However, the RO has made multiple efforts - seeking alternate sources of records by making requests through the Personnel Information Exchange System (PIES) and asking the Veteran for additional information and any records in his possession, per Washington v. Nicholson, 19 Vet. App. 362 (2005)- to obtain these records, but received confirmation in May 2008 that no records existed as a result of a fire at the National Personnel Records Center (NPRC). As the response indicated that the records could not be reconstructed, it is reasonably certain that further efforts to obtain service treatment records would be futile. 38 U.S.C.A. § 5103A (2009). When, as here, the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). After having carefully reviewed the record on appeal, the Board has determined that the notice and assistance requirements of VCAA have been satisfied with respect to the issue decided herein. However, the Veteran, through his authorized representative, contended in an October 2010 brief that VA had not satisfied the duty to assist, or the terms of the April 2010 remand, because the August 2010 examination was conducted by a nurse practitioner rather than a specialist. The Board notes that the April 2010 remand did not direct that the examination be conducted by an examiner with any specific credentials. While the VA Adjudication Procedure Manual M21-1 (M21-1) (now M21-1MR) states, in pertinent part, that examination reports should be signed by a physician, the M21-1MR also states that examinations may be conducted by nurse practitioners. M21-1MR III, iv, 3, D, 18, a. Although the M21-1MR states that when an examination is conducted by a nurse practitioner a physician must review and sign the report, that section of the M21-1MR has not been held to be substantive (although certain provisions of the M21-1 have been found to contain binding substantive rules (see Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992)), 38 C.F.R. § 19.5 (2009) provides that, generally, "[t]he Board is not bound by Department manuals, circulars, or similar administrative issues"). The Veteran, through his authorized representative, also contended in the October 2010 brief that VA had "neglected its duty to assist in the development of the claim" because the examiner did not provide the requested medical opinion. The August 2010 examination report reflects that the examiner stated that an opinion could not be made without resort to speculation and provided a rationale for that statement. The Board notes that a medical opinion which concludes that an etiological explanation cannot be furnished without resort to speculation may fulfill the duty to assist when supported by clinical data or other rationale. See Bloom v. West, 13 Vet. App. 185, 187 (1999). As the August 2010 examiner provided a rationale for stating that an opinion could not be rendered without resort to speculation, the Board finds that the duty to assist has been met. Hood v. Shinkseki, 23 Vet. App. 295 (2009) (In claim alleging VA negligence in medical care, holding that where physician's opinion that it was "impossible, in retrospect" to reach medical conclusion of cause of claimant's illness in VA medical facility was "at best, equivocal" and insufficient to support such nexus); see Polovick v. Shinseki, 23 Vet.App. 48 (2009)(Holding doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet.App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (noting that the use of the phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). The Board further finds that all available evidence pertinent to the claim has been obtained and there is sufficient medical evidence on file in order to make a decision. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. There is no indication that there exists additional evidence to obtain or any additional notice that should be provided since there is a sufficient basis upon which to find that a reasonable person could be expected to understand what was needed to substantiate the claim. Thus any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Additionally, all the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but only such evidence as is relevant must be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Veteran seeks service connection for a low back disability. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, a veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and, as such, it must be denied. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden, 381 F.3d at 1167; Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza elements of 38 C.F.R. § 3.303(b). Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); 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, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran alleged on his initial claim for service connection that he experienced a back injury during service in "1955 or 1956" for which he received in-service treatment. His service separation examination does not reflect any back disability. The Veteran stated that he received medical treatment for his back beginning in March 1967. A March 1980 letter from a private physician states that the Veteran was seen seven (7) times in 1970, once in 1978, twice in 1979, and twice in 1980 for a "spinal-health problem." The letter does not provide a diagnosis or, more critically, discuss the etiology of the problem. A September 1993 treatment note reflects that the Veteran was seen for complaints of back problem. A December 2000 letter from the Veteran's wife (to Senator Byrd) states that he injured his back during service -initially during a basic training exercise and then re-injury while on duty in Alaska- and thereafter experienced "constant" problems with the discs in his back, requiring spinal surgery in 1980. A December 2000 letter by the Veteran (to Senator Byrd) again states that he experienced back injuries during service that later required surgical correction, but caused him continued pain. A March 2001 letter from a former coworker states that he observed the Veteran experiencing problems with his back when they began working together in 1957 (the year of his discharge from service). Another March 2001 letter from another former coworker stated that the Veteran experienced back pain at work (1962 to 1973) and did not lift heavy objects. A 1963-to-1964 former coworker submitted a March 2001 letter that he frequently heard the Veteran complain of back pain. Yet another March 2001 letter from another former coworker observed that the Veteran both seemed to experience back problems on the job from 1971 to 1977 and had frequently explained that he injured his back during service and the injury was easily aggravated. In July 2002, the Veteran authored a letter stating that he injured his back during service and had experienced problems since that time; a January 2003 note from his wife states that he first injured his back in basic training in Georgia (received no treatment) and re-injured it in Alaska (was prescribed pain medication and three days of bed rest). In July 2008, another former coworker submitted another statement that he worked with the Veteran in 1963, 1964, and from 1966 to 1969, and heard him complain about his back. However, the first VA treatment note of record for "back problems" is dated September 1993. An October 1993 treatment record observes that he underwent disc removal surgery in 1980 at a VA facility in West Virginia. A July 1999 private medical record states that his past medical history included a laminectomy and having a "cyst removed from the spine in 1970." The Veteran was observed to have a medical history of surgery of the lower lumbar spine in an August 1999 VA treatment note. An August 1999 private treatment note reflects that the Veteran had received prior back surgeries and experienced a ruptured disc. A July 2000 private medical treatment note states that MRI revealed lumbar degenerative disc disease. In August 2000, the Veteran received a VA bone scan showing increased uptake in the lumbosacral region. September 2000 scans revealed degenerative changes in the cervical spine and in the lumbosacral spine. VA treatment records show that he reported an increase in back pain in October 2000 and chronic low back pain in February 2001. A separate treatment record indicates that the Veteran was informed in February 2001 that he had a "bony infarct" in the sacrum as the result of radiation that was resulting in back pain. In April 2001, the Veteran was examined for eligibility for aid and attendance benefits. The examination report reflects that his prostate cancer had metastized to his back resulting in degenerative changes. An April 2001 private treatment note states that the Veteran was experiencing bone pain as a result of fractures caused by radiation therapy for cancer. A February 2002 private treatment note observes the Veteran's prior medical history of metastic bone disease. A February 2002 VA treatment note states that the Veteran's chronic back pain may be related to his radiation therapy. An April 2002 MRI revealed mild degenerative disc disease of the lumbar spine and a June 2002 VA treatment note reflects that the Veteran reported back pain. An April 2002 VA treatment note lists the Veteran's diagnosis as chronic low back pain secondary to degenerative disc disease; he was seen again in June 2002 for complaints of back pain. In July 2002, the Veteran wrote to VA reporting that he had experienced back problems since service. A September 2002 VA examiner opined that the Veteran's current back problems were the result of stress fractures due to radiation therapy. The 2002 examination report observes that the Veteran also had spinal lesions, due to metastasis of his cancer, prior to radiation therapy. A February 2003 VA treatment note again shows a diagnosis of degenerative disc disease; chronic sacral and pelvic pain are noted as complications of external beam radiation. A July 2005 physical therapy note observes that the Veteran reported "many years" of back pain; upon physical examination the Veteran was noted to have sporadic pain occurring in patterns that are not normally seen with lumbosacral spine pathology. His degenerative disc disease is described as severe in a January 2006 VA note; evidence of metastatic disease was also noted. The note states that bone scans show osteoarthritic changes, but no areas of malignancy. A June 2006 note states that his low back pain is secondary to disc disease. As noted above, the Veteran was afforded a VA examination in August 2010. The examination report reflects review of the claims file and the Veteran's contention that he injured his back while moving heavy platforms in service, experiencing pain ever since. The examiner diagnosed degenerative disease of the back, noting that prior radiologic studies showed severe degeneration at L4-S1. On the basis that the service separation examination report did not show any back problem and there was no evidence of a diagnosed back condition until many decades after service, the examiner stated that a medical opinion (as to whether the Veteran's current back disability was related to his reported in- service injury) could not be rendered without resort to speculation. The record does not reflect any competent medical evidence of a nexus between the Veteran's current degenerative disc disease and his active duty service. Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. Such evidence 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). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Although the Veteran is competent to report the circumstances of his service, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Here, the Veteran has reported experiencing back injuries during service and he has provided multiple lay statements attesting that he experienced back pain following service. However, pain alone does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Although there are treatment records pertaining to a back disability (as shown by the March 1980 letter from a private physician), treatment did not begin until approximately 13 years after discharge from service and there was no diagnosis of record of degenerative joint disease until July 2000. Treatment records also indicate that the Veteran received treatment for a spinal cyst in 1970 and for a ruptured spinal disc in 1980, but there is no medical evidence relating either condition to service. As noted above, some medical evidence relates the degenerative spinal changes to metastasis of cancer and the results of radiation therapy. The 2010 examiner noted that, due to the lack of documentation of an in-service injury, no opinion could be rendered as to the possible existence of an etiological relationship between the current degenerative joint disease and service without resort to speculation. Under VA regulations and Court decisions, service connection may not be based on pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2007); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman v. Brown, 5 Vet. App. 237, 241 (1993). When making evidentiary determinations, it is the Board's responsibility to weigh the credibility and probative value of all of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing to Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). Here, the record is devoid of any evidence that the Veteran's current degenerative joint disease is the result of an in-service injury. The Veteran has reported experiencing back pain since service resulting in degenerative disc disease and, although he is competent to report the circumstances of his service and his symptoms, laypersons are generally not capable of opining on matters of medical causation. Routen, 10 Vet. App. 186. There is no evidence that the Veteran's reported in-service injury resulted in more than chronic pain and, as noted, service connection cannot be granted for pain alone. Sanchez-Benitez, 13 Vet. App. at 285. As there is no medical evidence relating the Veteran's current degenerative back diagnosis to any incident of his military service, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claims denied above, the doctrine is not for application. Gilbert, 1 Vet. App. 49. ORDER Service connection for a low back disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs