Citation Nr: 1127635 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-13 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from August 1966 to March 1969. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a May 2008 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the appellant testified before the undersigned Veteran's Law Judge (VLJ). A copy of the transcript is associated with the claims folder. An oral waiver of additional evidentiary submissions was accepted at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT A low back disability is not attributable to service, including the helicopter crash of December 1968. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 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 decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as rating and effective date. In this case, in September 2007, the RO sent to the appellant a VCAA letter that essentially complied with statutory notice requirements. Therein, VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. VA further notified him of how VA determines disability ratings and effective dates. VA provided this notice prior to the initial adverse determination from which this appeal arises. The Board observes that the RO supplemented the September 2007 notice with a letter dated August 2008. The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. Therefore, the Board finds that VA has met its duty to notify. VA further has a duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, VA obtained service treatment records along with VA and private medical records. All these records have been associated with the claims file. It is noted that the appellant reported treatment in 2005 from Dr. Timothy Harrington. The RO requested Dr. Harrington's medical record in September 2007. The medical group responded that there were no patient records for the dates requested. Also, the RO requested medical records from Dr. Robert Chow. The letter was returned as undeliverable. The RO notified the appellant of this in a letter dated January 2008. The appellant responded that he had seen Dr. Chow on one occasion, and that he has tried to obtain the medical records without success as this doctor is retired or deceased. The Board finds that VA has made reasonable efforts to obtain the outstanding medical evidence. As such, the duty to assist has been discharged in this regard. Notably, the appellant's representative has not averred any harm or prejudice in VA's consideration of the matter without these records. Furthermore, in accordance with VA's duty to assist obligations, VA afforded the appellant a medical examination in March 2008. The Board notes that there has been no allegation that the VA examination was inadequate. The Board observes the 2008 VA examination report described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board finds that the examination report is sufficiently detailed with recorded history and clinical findings. Specifically, the examination was conducted by a medical professional, and the associated report reflects review of the prior medical record and the history of the present illness. The examination included a description of the symptoms and demonstrated objective evaluation. Also, the examiner provided a medical opinion supported by a rationale. Therefore, the Board concludes that he was afforded an adequate examination in this matter. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA provided the appellant the opportunity to have a hearing. The appellant testified before the undersigned VLJ in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge noted the basis of the prior determination, asked clarify questions, and inquired about outstanding medical evidence and dates of treatment. Neither the appellant nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the information necessary to substantiate his claim for the benefit sought. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). Therefore, VA satisfied its duty to assist and the Board finds no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance 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). All relevant facts with respect to the claim addressed in the decision have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Service Connection 38 U.S.C.A. § 1154(b) provides, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease a combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the provisions of section 1154(b) apply only to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. Generally, compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 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. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 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) lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that 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 latter 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background The appellant has testified and argued that he has a current low back disability related to service. Specifically, he reports that he sustained a low back injury during a helicopter crash in service. He reports back pain since that incident and has submitted medical evidence in support of his claim. Service treatment records show that the appellant was seen on December 31, 1968, for possible right thumb fracture sustained in a helicopter crash. The appellant had four follow-up appointments in January 1969 for the thumb. The appellant presented in February and March 1969 for other complaints. There were no complaints related to the back. Service personnel records show that the appellant was awarded a Purple Heart for wounds sustained on December 31, 1968, during military operations against hostile forces while serving in the Republic of Vietnam. It was noted that the appellant was assigned to the 176th Assault Helicopter Company, 14th Combat Aviation Battalion. Report of separation examination dated March 1969 reflects normal clinical evaluation of the spine, other musculoskeletal. The appellant denied recurrent back pain on the medical history portion of that examination. In March 1969, the appellant filed an original claim for VA compensation. The disease or injuries claimed did not include the low back or spine. VA orthopedic examination dated June 1969 is silent for back complaints. The appellant reported that he injured his thumb in a helicopter crash in December 1968. He further reported a superficial fragment wound of the right bicep in February 1969. There are no clinical findings relative to the spine. Private treatment notes of T. Bodnar, MD, dated 1984, reflect complaints of recurrent chronic low back pain. The physician indicated that the appellant had "degenerative disc disease which has had repeated exacerbations." These notes further reflect lumbosacral strain with nerve root irritation. A private CT of the lumbar spine in April 1985 showed "No significant abnormality." Spinal canal was widely patent and intervertebral spaces were normally maintained without evidence of obvious protrusion. Myelogram dated April 1985 reflects "Minor findings ventrally and on left at L5-S1 of extradural impression. No other significant abnormality." In June 1999, the appellant filed a claim for VA compensation. He did not claim to have a back disability due to service. In an August 1999 statement, the appellant reported that he was involved in a helicopter accident and that he was the only crew member of 6 to have been hurt-receiving a broken thumb and punctured ear drum. Private medical records dated 2004 show a diagnosis for degenerative disc disease of the lumbar spine with lumbar radiculopathy. An MRI study was conducted. Private treatment records dated October 2005 (J. Badalamenti, MD) reflects abnormal lumbar spine findings on MRI examination. Private treatment records dated 2006 include correspondence between J. Sellers, DO, and Dr. Harrington, and shows abnormal lumbar spine findings. Private treatment records dated October 2005 (P. Kalyanam, MD) reflect a history of low back pain and left lower extremity pain that "started approximately two years ago." The assessment was arthritis with lumbar radiculopathy. Private diagnostic studies dated 2006, CT and MRI, show degenerative disc disease of the lumbar spine. Private medical records dated 2007 (G. Johns, MD) reflect, by history, chronic low back pain for many years. The assessment was backache. The appellant requested in August 2007 service connection for back disability sustained from a helicopter crash in service. Report of VA examination dated March 2008 reflects, by history, that the appellant had been involved in a helicopter crash in service. He "states that he does not recall any back problems at the time of this event." He reported that he lost consciousness during the incident and was treated for a thumb injury. The appellant denied injury or trauma to the back following service discharge. The assessment was degenerative disc disease with spondylosis, lumbar spine. The examiner noted that there was documentation of back pain dating to the mid-1980s, and a report of a helicopter crash with no report of back pain in relation to that incident; therefore, the examiner concluded that it was "less likely than not that the veteran's back condition is due to helicopter crash." A private neurological consultation dated May 2008 (N. Theodore, MD) reflects, by history, a long standing low back pain, dating back over forty years to when the appellant was involved in a helicopter accident in Vietnam. By history, low back pain has been a constant feature in the appellant's life. The impression was chronic low back pain. In a letter dated July 2008, VA physician (C. Burke, MD) and a nurse practitioner wrote on behalf of the appellant that "His back pain is a direct result of a helicopter crash in Viet Nam in which the helicopter he was a crew member in, landed upside down." A March 2009 private consultation report (P. Lynch, MD) reflects complaint of low back pain and a long standing history of low back pain dating to the 1970s after he was discharged. The appellant reported that he was involved in a helicopter accident 3 months prior to service separation and that the next year he began to have significant problems with his low back which progressed. The examiner stated "Temporally speaking, it would certainly seem that the patient's low back pain originated from the helicopter crash, given the fact that the patient was only 19-20 years old when he began having low back pain." The appellant was assessed with lumbar intervertebral disc disorder, lumbar radiculopathy, and chronic pain syndrome. In a subsequent statement dated March 2009, Dr. Lynch reiterated that he believed, after examining the appellant, that his back problems stem from the helicopter crash in service. In correspondence dated April 2009 to a physician, Dr. Theodore, stated that "In reviewing [redacted name of Veteran] history, it appears that his symptoms began shortly after a severe helicopter crash on December 31, 1968 in Vietnam. It is not uncommon to sustain progressive degeneration of the spine following a major injury of accident, especially on as violent as a hard landing upside down in a helicopter." In September 2009, the appellant acknowledged that he did not report back symptoms at the time of treatment following the in-service helicopter accident and that he had no immediate injury, but he explained that his back condition "over the years slowly evolved..." In May 2011, the appellant testified before the undersigned VLJ that the medical evidence showed that his current back disability was related to service. He noted that he was denied workers compensation because of preexisting back disability. He submitted a copy of a letter dated August 1984 from an attorney showing that the appellant had temporary aggravation of preexisting degenerative disc disease. The appellant testified that he had no treatment records dated prior to 1984. He submitted a statement from his mother dated April 2011, which reflects that she observed that the appellant had back problems after he returned from Vietnam. She stated that he took Aspirin, hot showers, and slept on the floor to help with backache. Analysis Consistent with 38 U.S.C.A. § 1154(b), the Board accepts the appellant's report that he was involved in a helicopter crash in December 1968. Although section 1154(b) relaxes an evidentiary requirement, that section deals only with the occurrence of an event, i.e., whether a particular disease or injury was incurred or aggravated in service -- that is, what happened then -- not the questions of either current disability or nexus to service, as to both of which competent evidence is generally required. See, Beausoleil v. Brown, 8 Vet.App. 459 (1996). Weighing the evidence of record, the Board finds that the preponderance of the evidence is against service connection for low back disability. Excluding his report consistent with section 1154(b), a chronic low back disability is not otherwise shown in service and arthritis is not shown within the initial post separation year. Service treatment records show no back complaints or findings subsequent to the reported injury. The appellant denied recurrent back pain on separation examination, and clinical evaluation was normal. Such denial and the normal clinical finds tend to refute the sometimes assertion of continuity. There are no documented complaints or findings for abnormal back pathology for many years after service. The Board finds that the evidence, to include the denial at separation, the normal separation findings and the silence in proximity to service, is against a claim based on continuity of symptomatology, and that the more probative evidence of record shows that the appellant's current back disorder is not related to service. The Veteran's assertions of continuity are not credible. Report of VA examination dated March 2008 reflects that it was "less likely than not that the veteran's back condition is due to helicopter crash." The examiner's rationale was that there were no back complaints contemporaneous with the helicopter crash incident and no documented back complaints until the mid-1980s. The March 2008 VA examination is highly probative as it was prepared by a skilled and trained medical professional, based on review of the medical history and records along with examination of the appellant. In assessing medical evidence, whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-89 (2000). Here, the March 2008 VA examination report reflects that the examiner had access to the claims file and included a rationale based on an accurate history. The appellant also argues that his current back disability evolved slowly following the helicopter accident in service, and reports that his current disorder is related to the in-service event. In this regard, the Board accepts that the appellant is competent to report pain and when symptoms began. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the appellant has not reported back symptoms or pain in service and his statements reflect that he does not recall when the symptoms began. Notwithstanding, he reports that his current back disability is related to a helicopter crash in service. However, the appellant is not competent to offer his opinion in this regard. Matters of etiology involving complex processes of the spine, to include degenerative disc disease shown many years after service discharge, are not within the ken of a lay person. Essentially, the appellant lacks the requisite medical expertise to provide an opinion on the etiology of his current back disorder. See Jandreau, supra. Therefore, as to etiology, his opinion lacks probative value. The Board has considered the favorable medical opinions of record. It is noted that the weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). Here, both Drs. Theodore and Lynch relate the appellant's current back disorder to service, specifically the helicopter crash. However, the Board finds that these opinions have diminished probative value because they are predicated on an inaccurate medical history. The appellant provided these physicians with a history of low back pain dating over 40 years to when he was involved in helicopter accident. He suggests to these physicians that he had immediate symptoms following the accident. This history is inconsistent with the medical history reported by the appellant at service separation, wherein he denied back pain. This history is further inconsistent with the history provided by the appellant to VA in connection with his compensation claim. In both statements and sworn testimony, the appellant has acknowledged that he did not have back pain or symptoms in service, and that he could not recall the date of onset. Notably, the appellant reported during private medical treatment in October 2005 that low back pain had "started approximately two years ago." Because the appellant is an inconsistent historian, his statements concerning the date of onset of back pain and symptoms are not credible and have diminished probative value. Therefore, the medical opinions that clearly relied upon the inaccurate medical history reported by the appellant have diminished probative value. Also, the medical opinion dated July 2008 of Dr. Burke, a VA physician, relates the appellant's current back disability to service. However, this opinion does not include a basis for that opinion. Therefore, this opinion has no probative value. See Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from the rationale that the examiner provides in support of his/her conclusions). The Board assigns greater probative value to the March 2008 VA medical opinion, as discussed above. This opinion was predicated on review of the medical records, history of current illness, and examination of the appellant. This opinion included a complete rationale, based on accurate medical history. The Board has further considered the lay statement of the appellant's mother. She is competent and credible to report her observations of the appellant following service discharge. However, her statement is vague. She does not identify any timeframe with regard to her observations other than after Vietnam service. As such, her statements have diminished probative value. The Board has also considered the attorney letter dated August 1984. However, while it shows that the appellant had a back disorder, the attorney does not report that the appellant had a back disorder related to service, or an incident of service. It merely shows preexisting degenerative disc disease. As such, for the purpose of establishing a low back disorder related to service, this letter has little probative value. On balance, the weight of the evidence is against the claim for service connection for low back disability. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990) ORDER Service connection for low back disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs