Citation Nr: 1139733 Decision Date: 10/26/11 Archive Date: 11/07/11 DOCKET NO. 08-15 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active duty service from October 1985 to January 1989 and from October 1990 to July 1991 to include service in Southwest Asia during the Persian Gulf War. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In May 2010, the Board remanded for further development, which has been completed. The case has been returned to the Board for adjudication. FINDING OF FACT The preponderance of the evidence does not support a finding that a relationship exists between the Veteran's currently diagnosed lumbar spine disability and military service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by the Veteran's military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded for further development in May 2010. The Board instructed the RO to provide the Veteran an examination to determine the etiology of any current lumbar spine disability and to readjudicate the claim. Subsequently, the Veteran was afforded an examination in June 2010, and his claim was readjudicated in a May 2011 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in June 2007, prior to the December 2007 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The June 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with an examination in June 2010. Review of that examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He declined the opportunity to present evidence in his case. Therefore, the duties to notify and assist have been met. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). ***Arthritis may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). However, this presumption does not apply as the first indication of arthritis in the claims folder was not until a July 2007 VA spine X-ray. ** Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2010). A veteran who served during a period of war, as the Veteran here, is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C. § 1111 (West 2002). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service and was not aggravated during service, the presumption of soundness does not attach. Id. The law further provides that the burden to rebut the presumption and show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See, e.g., Cotant v. Principi, 17 Vet. App. 117, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, VA's Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel . 38 U.S.C.A. § 7104(c) (West 2002). As noted by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004): When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153 . If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under § 1111, the veteran's claim is one for service connection. Under Wagner and VAOPGCPREC 3-03, VA has the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service and was not aggravated by service. Under 38 C.F.R. § 3.304 , the standard for clear and unmistakable evidence is that the determination of inception "should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular...disease...." The Veteran's September 1985 service entrance examination is silent for any notation of a back disability. The Veteran denied any recurrent back pain and physical examination of his spine was within normal limits. Consequently, the presumption of soundness attaches and clear and unmistakable evidence must exist to rebut it. While the June 2010 VA examiner observed that the Veteran had a hereditary type of arthritis, review of the evidence does not establish that the Veteran had any back problems or complaints prior to his entry into active duty. Furthermore, the Veteran has not alleged that he had back problems before service that were aggravated during service. Accordingly, the Board must conclude that the presumption of soundness upon service entry has not been rebutted by clear and unmistakable evidnece. The Veteran asserts that his current lumbar spine disability was incurred as a result of a locker falling on him in service during his first period of active service. As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) evidence of a nexus between (1) and (2). See Hickson, supra. The record shows that the Veteran currently a lumbar spine disability. The June 2010 VA examination report noted diagnoses of bilateral L3 spondylolysis associated with mild grade 1 retrolisthesis, and bilateral lower lumbar facet arthritis. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, service treatment records show that the Veteran was seen on multiple occasions for complaints related to his lumbar spine. In September 1987, the Veteran was seen for a lumbar strain which was incurred while wrestling in his barracks. A treatment record dated a few days later reflects that the Veteran was treated in the hospital for complaints of back pain and had been released four days before. In October 1987, he was seen for complaints of back pain at T1-5 which was not associated with a history of direct back trauma in the past 72 hours. About a week later, the Veteran was seen again for his complaints of back pain at T1-3, and a diagnosis of chronic back pain was noted. A radiology request report noted chronic mid-back pain for two months, and an accompanying report showed negative findings for the thoracic spine. In November 1987, the records showed the Veteran's continued report of lower back pain and an assessment of back pain was noted. A few days later, the Veteran complained of pain in the lower legs and intermittent mild lower extremity paresthesias on running; a normal examination was noted. A January 1988 record noted the Veteran's complaints of middle back pain for 10 days and the practitioner suggested muscle tension pain. Then in February 1988, the Veteran complained of backache in the T1-3 area, which did not radiate, for two weeks. The Veteran again complained of lower back pain in July 1988 in the T1-3 region after lifting wall lockers. The practitioner noted a likely strain. Subsequently, in January 1991, the Veteran complained of lower back pain for two days. Therefore, Hickson element (2) is met. With respect to crucial Hickson element (3), medical nexus, the question presented, i.e., the relationship, if any, between the Veteran's current spine disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran was afforded an examination in June 2010. Upon review of the claims folder and evaluation of the Veteran, the examiner opined that it was less likely as not that the Veteran's spine disability was caused by or a result of service. The examiner noted that the Veteran's examination demonstrated a hereditary type of arthritis which likely accounted for his joint pain to include his low back pain which was likely due to facet joint pain. In so finding, the examiner cited to an online medical journal. She further noted that the Veteran did not meet any of the criteria for spinal traumatic injuries according to an online reference. The VA opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, evaluation of the Veteran, and consideration of the Veteran's report of his medical history. Additionally, the examiner provided a detailed rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the opinion is found to carry significant weight. Among the 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, 448-9 (2000). Notably, there is no competent evidence contrary to this opinion of record. The Veteran has submitted no competent medical nexus evidence contrary to the VA opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2010) (noting it is a claimant's responsibility to support a claim for VA benefits). Therefore, Hickson element (3), medical nexus, has not been satisfied, and the claim fails on this basis. In making this decision, the Board must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376- -77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. 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 that addresses 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) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran 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). As to the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. The Veteran is competent to report what he observed and he experienced during service because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In this case, as to the Veteran's assert of a continuity of symptomatology since service discharge, the Board finds that any such suggestion is not credible. As noted above, the Board is within its province to weigh that testimony and to make a credibility determination. Any assertion of a continuity of symptoms since service is countered by a lack of contemporaneous records showing treatment or complaints related to his spine. Despite complaints of spine problem during service, there were no post-service evidence of complaints related to the spine until January 1996. This is six years after service discharge. In any case, supporting medical evidence is required to establish service connection based on a continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (finding that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). The Board further notes that the Veteran applied for service connection for various conditions, including posttraumatic stress disorder and a joint disability in May 1995 but did not apply for service connection for the lower spine until December 1998. Had the Veteran been experiencing problems with his spine since service discharge, it would have been expected that he would have applied for service connection for such when he initially filed a claim in May 1995. In light of the foregoing, the Board concludes that the Veteran is not credible with regard to any assertion that he has had a continuity of spine symptoms since service. Additionally, to the extent that the Veteran contends that a medical relationship exists between his current spine disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See supra Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, an assertion as to the etiology of the Veteran's current spine disability is a question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his spine disability. See 38 C.F.R. § 3.159 (a)(1) (2010) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his spine disability, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more credence and weight to the June 2010 VA examiner's opinion as it was rendered after an evaluation and extensive review of the Veteran's medical history by a licensed nurse practitioner. In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's disability and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Additionally, in a single-judge Memorandum Decision issued by the United States Court of Appeals for Veterans Claims, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs