Citation Nr: 1119081 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 99-17 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from January 1956 to November 1959. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1999 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied the above claim. A hearing was conducted at the RO in October 1999. This matter was previously before the Board in December 2000, when it was remanded for additional development. Thereafter, the Board denied the claim in July 2004. However, that decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in January 2008, and matters were remanded to the Board at that time. Subsequently, in May 2008 and April 2009, the Board remanded the case to the RO for further procedural development. In an April 2010 decision, the Board determined that new and material evidence had been submitted since a final July 1997 RO rating decision which had denied service connection, and the claim for service connection for a low back disorder was reopened. However, the Board remanded the matter of service connection for a low back disorder on the merits for further development. The case is now ready for appellate review. FINDING OF FACT A low back disability, including degenerative joint disease and degenerative disc disease, is not attributable to service. CONCLUSION OF LAW The criteria for service connection for a low back disability, including degenerative joint disease and degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 38 C.F.R. § 3.159(b). 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 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 Veteran 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. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated February 2004, May 2008, May 2009, August 2009, and May 2010 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. Several of the letters also notified the Veteran that that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, in compliance with Dingess. The claim was most recently readjudicated in a February 2011 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, Social Security Administration (SSA) records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO also scheduled the Veteran for a VA examination in June 2010 in order to obtain a medical opinion concerning his low back disorder; however, he failed to report. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Per the Board's April 2010 remand, in May 2010 the Veteran was requested to provide a release allowing VA to obtain his records from Dr. Torreos in Abilene, Texas, and/or to submit the records himself. In addition, the Veteran was scheduled for a VA examination to be conducted in June 2010. The Veteran failed to respond to the letter and report for the examination. All efforts to furnish mail and telephone calls to the Veteran have been futile. His mail has been returned as having no forwarding address and his telephone number has been disconnected. This information was available to his representative, but no new address or telephone number was provided by the Veteran or his representative. All necessary and reasonable efforts to contact the Veteran have been made. It is the burden of the Veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board also notes that "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO has complied with the Board's prior remand instructions. However, the Veteran did not respond to the request for information or report for the scheduled VA examination, as he has apparently moved and not provided VA with a current address. Thus, no futher assistance is required. The Board must proceed on the record as it stands, per below. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may 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 C.F.R. § 3.303(d). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during the service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). There must be competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The United States Court of Appeals for Veterans Claims ("the Court") has consistently held that, under the law cited above, "[a] determination of 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). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service treatment records reflect that the Veteran was diagnosed as having back strain in October 1956. He was told to apply heat for relief. X-rays were negative. In December 1956, acute lumbar myositis was noted. He was again treated for back strain in January 1957. In July 1957, it was indicated that the Veteran strained his back while lifting. He was provided medication. On a May 1969 Report of Medical History at discharge, the Veteran reported that his back bothered him and that he had hurt his back in 1957. However, in August 1959, when his separation physical examination was performed, the findings with regard to his spine and musculoskeletal system were normal. Further, various medical complaints were documented at that time, but no back complaints were noted. Post-service, private and VA records have been received, to include those furnished to and by the SSA. These records show the Veteran injured his low back in November 1983 when he fell off a bar stool. He underwent a laminectomy surgery. Thereafter, in June 1988, he suffered a second back injury while at work when he twisted his low back which required additional surgeries, conducted in 1988, 1990, and 1992. He was diagnosed as having both low back degenerative disc disease and degenerative joint disease. See private medical reports of St. Anthony's Hospital, Inc.; Edward White Hospital; Angelo Community Hospital; Doctors Hospital of Sarasota; R. Huston Babcock, M.D.; and Sarasota Orthopedic. These records provide consistent history, furnished both by the Veteran and through the private medical reports, that the Veteran injured his back in 1983 and in 1988. In addition, Mark B. Lonstein, M.D., provided an attending physician's statement n which he indicated that the Veteran had undergone back surgery in the early 1980s and then reinjured his back in June 1988. The current diagnosis was recurrent lumbar radicular syndrome. The Veteran was awarded disability benefits by SSA, in part, based on the residual back disability from these injuries. There are extensive treatment records pertaining to the Veteran's low back dated between 1985 and 1996, prior to the time that he filed his claim for service connection. These records show that the Veteran gave a history pertaining to his back on numerous occasions. He consistently described his post-service injuries in 1983 and 1988, but made no reference to his in-service back injury or problems. During hospitalization in April 1985, the Veteran stated that he had severe low back pain which began when he was injured in 1983. He stated that he had not been free of low back pain since that time and denied any previous history of similar problems. Subsequent VA records, dated from 2003 onward, document another injury in June 2003 when the Veteran suffered a slip and fall. The following month, he reported that he had low back pain of an 8 on a scale of 1-10 with 10 being worse, and that this was related to his injury from the month before. More recent VA records dated through 2009 continue to show that the Veteran has low back degenerative disc disease and degenerative joint disease which cause limitation of motion, muscle spasm, and pain. On review of all the records, no medical professional has indicated that the Veteran's current low back disability had its onset during active service or is related to any in-service disease, event, or injury. Nevertheless, in October 1999 the Veteran testified that he had back symptoms since he was in service but that he self treated himself until he saw a doctor in the 1980s. He is competent to make such a report; however, the Board finds that he is not credible in this regard. Again, there are extensive treatment records related to his back dated from 1985 to 1996, prior to the time that he filed his claim for service connection. Nowhere in these records does the Veteran give a history of back symptoms prior to his post-service injury in November 1983. To the contrary, in April 1985 he stated that his back pain began in November 1983 and had continued since that time; he denied any previous history of similar problems. These statement made in 1985 during the course of treatment for his back disability are found to be credible. It is noted that not only may the Veteran's memory have dimmed with time, but self interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999). The Board finds the Veteran's more recent statements and testimony regarding the purported continuity of back symptomatology are outweighed by his prior inconsistent statements indicating that back symptomatology began many years after service in 1983. The Board finds that it is unlikely that the Veteran would not have provided a history of continuous back pain since service when reporting his current back injuries and problems as documented in these many private medical records since he was seeking treatment and relief for his back problems. The history in these records was consistent from both the Veteran and the physicians who treated him. As such, his current statements that he had continuous back symptoms since service are not credible in light of this contradictory evidence which the Board finds to be more probative. Moreover, in order to determine if any current back disability was etiologically related to the in-service complaint and findings pertaining to the Veteran's back, the Board remanded this case to have the Veteran examined. However, as noted above, he did not report for this examination and has not provided VA with a current address or telephone number for correspondence. Efforts to locate him have been unsuccessful. There is no competent medical evidence of record indicating that the Veteran's current low back disability had its onset during active service or is related to any in-service disease, event, or injury. Arthritis was not shown to be present within one year of the Veteran's separation form service. The only evidence of a nexus between his current back disabilities and service is the Veteran's own generalized lay statements. The Federal Circuit has recognized that in some cases, lay testimony falls short in proving an issue that requires medical knowledge. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Further, the Board has determined that the Veteran's statements regarding a continuity of back symptomatology since service are not credible. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for a low back disorder is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs