Citation Nr: 1118731 Decision Date: 05/16/11 Archive Date: 05/26/11 DOCKET NO. 09-35 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from December 1980 to December 1983 and from September 1991 to March 1992. He also had service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the RO in St. Paul, Minnesota. The Board notes that a substantive appeal was also filed regarding the issue of service connection for a skin disorder; however, service connection was subsequently granted by the RO in June 2010. The issue is no longer on appeal. Further, the Board observes that the Veteran's representative presented the issue of service connection for bilateral hearing loss in an April 2011 Informal Hearing Presentation. That issue is not on appeal. On the contrary, the Veteran clearly indicated in a September 2009 statement that he was not pursuing an appeal on the claim for service connection for bilateral hearing loss. FINDING OF FACT A chronic disability of the low back, to include arthritis, was not shown in service or within several years after service discharge; and, the competent medical evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed low back disorder and his military service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2007, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also fulfilled the Dingess requirements. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In compliance with its duty to assist, the RO associated the Veteran's service treatment records, private treatment records, and VA outpatient treatment records. The service treatment records from his second period of service were not associated prior to the initial rating decision. Those records were later obtained and reviewed by the RO. See Supplemental Statement of the Case dated June 2010. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Board notes that the Veteran underwent VA examinations for other claims but did not undergo a VA examination for his claimed low back disorder. The Board finds that a VA examination is not warranted. As will be discussed below, there is an absence of in-service evidence of chronic low back disorder, an absence of identified symptomatology for several years after separation, and no competent evidence of a nexus between service and the Veteran's claim. Moreover, the Veteran's statements as to continuity of symptomatology are found to lack credibility given his statements of no back pain at the time of separation and no reports of symptomatology for several years following service separation. Put another way, the Board finds that the medical evidence of record is sufficient to make a decision on the claim., and that a remand for a VA examination is not warranted. The available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2010). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran claims that his current low back disorder is due to a fall he incurred in service, in February 1992. Service treatment records are silent as to low back symptomatology or treatment for an injury, however. Additionally, the Veteran's report of medical history denied low back pain upon separation in March 1992 and his separation examination revealed a normal spine. Thus, the Board finds that the service records do not show chronic residuals associated with low back complaints during active service or at the time of discharge. Post-service treatment records reflect objective evidence of treatment for low back pain in September 1995. Private X-ray records dated in March 1996 revealed mild degenerative disease at L5-S1. As the first evidence of degenerative disease appeared approximately four years post service, presumption of service connection for arthritis as per 38 C.F.R. §§ 3.307 and 3.309 is not for application. Despite the absence of documented post-service symptomatology related to the low back for several years, the evidence includes the Veteran's statements asserting continuity of symptoms since service. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran is competent to report symptoms of low back pain because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is equally competent to report having hurt his back following a fall. However, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. The Board emphasizes the VA outpatient treatment records dated in September 1995, in which the Veteran was treated for low back pain related to a work injury. The Veteran sought urgent care indicating that the work injury was recent. Similarly, private treatment records dated in 1996 reference a recent workplace injury involving a fall (March 1996) and then a twisting injury (June 1996). None of those records make reference to the Veteran's military service and/or a preexisting low back disorder. His recent assertion to VA that his back problems had existed since 1992 therefore carry less probative value. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (held that statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Moreover, as noted, the Veteran's assertion that he has been suffering from chronic low back pain since service is undermined his March 1992 exit examination wherein he specifically denied a history of low back pain. Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's low back disorder to active duty, despite his contentions to the contrary. The Board has considered the Veteran's VA outpatient treatment records as well as private treatment records. Private X-ray findings revealed a disk bulge at L4-5, an annular bulge at L5-S1, and minimal degenerative disease of L5-S1. While the records confirmed current diagnoses of a low back disorder, they do not suggest a medical nexus between his current low back disorder and service. Similarly, VA outpatient X-rays dated in January 2008 revealed moderate left lateral osteophyte formation at L3-4 and mild wedging at T12 with anterior osteophyte formation. A review of all of the VA outpatient treatment records revealed a current diagnosis of a low back disorder but did not suggest a medical nexus between his current low back disorder and service. Additionally, the Board has considered the Veteran's statements asserting a nexus between his current low back disorder and active service. The Federal Circuit held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his low back disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes 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."). Because degenerative disease and disk budges are not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his low back disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a low back disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs