Citation Nr: 1101838 Decision Date: 01/14/11 Archive Date: 01/20/11 DOCKET NO. 06-24 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to November 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran provided testimony at a March 2009 Travel Board hearing before the undersigned Acting Veterans Law Judge. This case was the subject of Board remands dated in July 2009 and in June 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the competent evidence is against a finding that a low back disorder is related to service, or that arthritis manifested to a compensable degree within a year following separation from active duty. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated during military service; and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove these claims. In any event, the Federal Circuit recently vacated the previous decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters provided between June 2003 and June 2010. These documents in combination provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claim of for service connection. The RO has provided adequate notice of how effective dates are assigned. The claim was subsequently readjudicated most recently in an October 2010 supplemental statement of the case. To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims on appeal decided below. The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment and personnel records, and records of medical treatment received privately and from VA, and reports of two VA examinations. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA appropriately examined the medical history of the Veteran's claimed low back disability for compensation purposes addressing the claimed disorder. Findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was also provided with an opportunity to present testimony at a hearing on appeal before a Veteran Law Judge, which he did in March 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2010) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the 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, at the March 2009 Travel Board hearing, the Acting Veterans Law Judge noted the basis of the prior determinations and indicated the elements of the claims that were lacking and necessary to substantiate the claim for benefits. These elements were discussed during the hearing. In addition, the Acting Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service 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 service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. 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) (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). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Service treatment records do not show that the Veteran was seen for any treatment associated with any low back or lumbar spine problems. There are no service treatment records showing any relevant complaints or treatment regarding the low back. The report of a November 1955 examination at the time of release from active duty shows that on examination, the evaluation was normal for the spine and other musculoskeletal system. The claims file contains private and VA treatment records, including statements and private evaluation reports, dated from 2000 to November 2010. Private treatment records showing treatment for another condition includes an August 2000 report of review of systems, which shows no findings pertinent to the claimed low back disorder. The first evidence of any low back problems is shown in October 2001 in private treatment records showing the Veteran was seen for complaints of low back pain for years, which was presently worse. Subsequent private treatment notes in show continued treatment for low back pain complaints. Of note, in a January 2003 consultation report, W. G. Stanley, D.O., remarked that the Veteran had had problems with his back for many years but it was getting worse over the previous three to four months. The Veteran had worked as a heavy iron worker and had to give that up three or four years before due to his back. Most recently he had to give up his job as an estimator because it involved a lot of walking. After examination, Dr. Stanley diagnosed mechanical low back pain, degenerative arthritis, no significant neurologic deficits. X-ray examination later in January 2003 showed interspace heights well maintained, no fractures, no dislocations or destructive lesions, and that there was some degenerative sclerosis at the lower lumbar facets. A February 2005 private treatment note shows that the Veteran reported falling on the floor in January 2005, with resulting neck and low back pain. Subsequent VA and private treatment records show continued treatment for low back problems. The report of a November 2009 VA examination shows that the Veteran reported a history of chronic low back pain starting after a fall in service in 1952 during basic training. He reported that while working in an area where greasy posts and pans were cleaned he slipped and fell injuring his low back. He reported receiving treatment at that time including use of a back brace for several days with gradual improvement, and he reported that he did well until 1956 when he began to experience pain in the lower back due to standing on concrete all day. He reported that he continued to have low back pain thereafter that worsened over time. After examination the diagnosis was degenerative disk disease of the lumbosacral spine and remote strain/compression injury of the lumbosacral spine. The examiner remarked that the Veteran had a history of chronic, progressive lower back pain, with no evidence of previous evaluation or treatment in the service treatment records. The examiner noted that the only evidence supporting the Veteran's claim was a statement from a friend who was cognizant of the Veteran's requirement to wear a brace and assistance during service. The examiner noted that X-rays revealed evidence of compression involving the superior endplate of L3, and remarked that this could represent a previous injury. The examiner opined, however, that there was no way to determine the time or place this occurred, noting that additional treatment notes in February 2008 referred to an injury in January 2005. Based on the foregoing evidence discussed in the examination report, the examiner opined that the question of nexus could not be resolved without resorting to speculation. The report of a September 2010 VA examination shows that the Veteran reported a history of injury in service and subsequent low back treatment and residual low back problems, a history which was essentially the same as discussed in the November 2009 VA examination discussed above. After examination, the examiner diagnosed degenerative joint disease, low back. The examiner remarked that the Veteran's degenerative joint disease of his spine was to be expected at his age level and occupation (construction worker). The examiner noted the Veteran's report that he fell in 1955 in service and was treated for one week, and then returned to usual military activities when his back pain subsided. The examiner explained that these reported symptoms meant that the present minimal compression involving the superior L3 was not due to that fall in service; and that if he had had a compression fracture of L3 with the inservice fall, that the low back pain of that would have rendered him non functional for several months at the time of the injury. The examiner also remarked in this regard that the Veteran had previously stated he was treated for low back pain in 1956, and that at the present examination, he reported that his back pain returned in the 1970s. The examiner also noted that the Veteran had multiple falls after service due to unrelated cited conditions. Based on the foregoing, the examiner opined that the current low back condition did not begin in service and was not related to service. In sum, the examiner found that the current low back condition was to be expected at the Veteran's age, and that the L3 compression was not caused by the reported injury in service. In this regard, the examiner noted that the Veteran had been a construction worker after service and later after service had had multiple falls due to underlying morbid medical conditions that were more likely the cause of L3 compression. In an October 2010 statement, Peno Carter, PT, noted generally that back injuries may be the starting point for symptomatic degenerative joint disease to occur, and that injuries are most frequently involved in the development of osteoarthritis, which may occur secondary to an injury to a joint. He further noted that although associated with old age, that osteoarthritis and degenerative joint disease are not simply a result of the aging process, but almost always begin as a ligament weakness resulting from injury. Based on the above, and the Veteran's report of injury in service, he opined that it would seem reasonable to conclude that the Veteran's injury in service was a precursor to his degenerative joint disease. The Veteran has provided lay evidence supporting his claim of low back injury and resultant low back problems in service. As reflected in a September 2004 statement in which he claimed service connection for a low back disorder, and in the transcript of a March 2009 Travel Board hearing, the Veteran has asserted that he hurt his back in boot camp when he slipped on the floor of a room where greasy pans were washed. He reported that he received treatment during boot camp for the injury including a back brace. He reported that after service he started receiving treatment in 1956 or 1957 from chiropractors. In two lay statements received in August 2003 and November 2009, EDH, a former service member, indicated he was aware at the time in service of the Veteran's low back injury and reported that he wore a back brace and was excused from some physical activities. EDH also stated that he was aware of the resultant condition in service. In light of the above, the Board finds that the evidence shows that the Veteran sustained a back injury during service. In addition, the medical evidence shows that he is current diagnosed as having a back disability. The question thus turns to whether the Veteran has a chronic back disability that had its onset in service or is related to his in-service back injury. Based on review of the foregoing, the Board finds that the preponderance of the competent evidence is against a finding that a low back disorder is related to service. First, though the Veteran is competent to provide lay evidence on this matter, his assertions of back injury and resultant condition in service have been inconsistent. In addition, the clinical evidence that shows no indication of any back complaints in service or prior to October 2001, approximately 46 years after service ended in 1955, and that when seeking treatment, the Veteran did not reference his period of service or any in-service back injury. Further, although the early records of low back treatment show complaints of low back pain for years, none of the early treatment records shows that the Veteran attributed the current low back disorder to the later claimed injury in service. Finally, the Board notes that the Veteran worked in construction following his discharge, which is a type of job that would difficult to perform with chronic back pain. Notably, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006). If the Board concludes that the lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. Id. In light of the above, the Board does not find credible his report of a continuity of back problems since service. As stated above, the Veteran's assertions that he injured his back during service and has had back problems since that time conflicts with his initial statements made when first receiving treatment and are inconsistent with the remainder of the clinical records showing no injury or low back problems in service or such problems until about 46 years after service. Thus, although the Board finds that the Veteran's report of sustaining a back injury in service as credible, the Board does not find his report of a continuity of back symptoms credible. Further, the nexus opinion contained in the statement from Peno Carter, PT, appears to be made solely on the basis of the Veteran's reported history, which as discussed, is not consistent with the remainder of the medical evidence on file, including the opinions given by the two VA examiners at the and November 2009 and September 2010 VA examinations. Moreover, the private examiner does not acknowledge or discuss the Veteran's post- service vocational history. As such, the Board finds that the statement by Peno Carter to be of little probative value. By contrast, the opinion given by the VA examiner at the September 2010 (physician) VA examination is more probative on the matter as it is consistent with the rest of the record. Moreover, the VA physician offered a cogent rationale in support of the assessment, which is consistent with the remainder of the treatment record evidence. The examiner at the November 2009 (physician's assistant) did not actually provide an opinion as to nexus, finding that to make such an opinion-given the Veteran's report and the remainder of the evidence-would be the result of mere speculation. Other than the statement of Peno Carter, no post-service treatment records contain an opinion or otherwise link any current back condition to service. Even the Veteran's statements during initial treatment are essentially counter to his claim, as he did not at that time associate his low back pain to specific injury in service many years before. Further, there is no evidence of any arthritis to a compensable degree within one year of separation. This precludes granting service connection for arthritis on the basis of pertinent presumptive regulations. 38 C.F.R. §§ 3.307, 3.309. As such, the Board finds that the preponderance of the evidence is against the claim, and thus service connection for low back disability must be denied. ORDER Service connection for low back disability is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs