Citation Nr: 1219002 Decision Date: 05/30/12 Archive Date: 06/07/12 DOCKET NO. 11-24 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Sioux Falls, South Dakota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to April 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which, in pertinent part, found that new and material evidence had not been submitted to reopen the claim for service connection for a back disability. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The claim for service connection for a back disability was initially denied in an unappealed November 1947 rating decision. 2. The evidence received since the November 1947 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. A back disability, currently diagnosed as degenerative disease of the lumbar spine and compression fractures of the T8, T12, and L1, was not incurred during service or until many years after discharge and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for a back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 2. A back disability, currently diagnosed as degenerative disease of the lumbar spine and compression fractures of the T8, T12, and L1, was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran's claim for entitlement to service connection for a back disability was initially denied in a November 1947 rating decision. The RO found that a current back disability was not present based on the results of the Veteran's March 1947 examination for separation from active duty service. The Veteran did not appeal the November 1947 denial of the claim and the rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2011). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received since the November 1947 rating decision includes numerous records of VA and private treatment dating from August 1975. These records document treatment for various spinal injuries and disabilities such as herniated discs, degenerative changes, and compression fractures. The Veteran has also reported the onset of back pain since service that has continued to the present day. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The clinical records and statements from the Veteran are new as they were not previously considered and also material as they relate to a previously unestablished fact-the presence of a current back disability. New and material evidence has therefore been received and reopening of the claim for entitlement to service connection for a back disability is warranted. Reopened Claim for Service Connection for a Back Disability Initially, the Board notes that because the RO adjudicated the Veteran's claim on the merits in the August 2011 statement of the case (SOC), he is not prejudiced by the Board's consideration of his claim on a de novo basis. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran contends that service connection is warranted for a back disability as it was incurred as a result of injuries during active duty service. 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran's service treatment records contain some evidence that a back disability may have pre-existed active duty. Thus, the Board must determine whether the presumption of soundness has been rebutted in this case. A Veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. The April 1946 enlistment examination is negative for any defects. During an October 1946 hospitalization for back pain, the Veteran reported a three year history of back pain with worsening over the past several weeks especially when riding in vehicles. A similar history was reported during a second hospitalization in December 1946, when the Veteran stated that he had experienced back pain for three years since an injury incurred before service while riding a tractor. He also reported injuring his back when he was six years old after falling down some stairs. He had experienced intermittent back pain during the past three years and had further injured his back in October 1946 while riding in a jeep. The Board notes that the Veteran's own account of a pre-existing disability does not, in and of itself, rebut the presumption of sound condition. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238 (1995). Although the Veteran was hospitalized and treated for back complaints during service and diagnosed with a herniated nucleus pulposis of the dorsal spine, there is no objective evidence that this condition pre-existed service. He also reported the incurrence of in-service injuries to his back to account for the findings of a herniated disc and spinal neuralgia. In addition, while hospitalized in December 1946, his complaints of back pain were characterized as vague, shifting, and inconsistent. In January 1947, a neuropsychiatrist diagnosed mixed hysterical psychoneurosis that was manifested by multiple aches and pains in the back. The previous finding of a herniated disc was set aside in favor of the psychiatric diagnosis. The March 1947 separation examination notes that the Veteran incurred a back sprain in October 1946, but there is again no objective evidence that this acute condition pre-existed service. Thus, the Veteran's in-service back problems were not present prior to his enlistment into active duty service. Although the conditions diagnosed during service were not present prior to the Veteran's enlistment, the Board notes that October 1946 X-rays demonstrated some congenital asymmetry of the lumbosacral and thoracic vertebrae. However, service records contain no other findings related to these abnormalities and additional X-rays conducted in December 1946 were negative for any bone or joint pathology. Additionally, none of the Veteran's post-service physicians, who have treated him from 1975 to the present, have identified any congenital abnormalities of the spinal vertebrae. The Board therefore finds that the Veteran did not have a back disability that pre-existed service. The presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for direct service connection, rather than one based on aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The record clearly establishes the presence of the first element of service connection-a current back disability. The Veteran has undergone post-service treatment for complaints related to his back since August 1975, and upon VA examination in June 2011 was diagnosed with degenerative disease of the lumbar spine and a history of compression fractures of the T8, T12, and L1 portions of the spine. Service treatment records also contain several medical findings related to the Veteran's back. As noted above, the Veteran was hospitalized for back complaints in October 1946 when he was diagnosed with a mild herniation of an intervertebral disc and multiple spinal neuralgia. He was transferred to a second hospital in December 1946 when the earlier diagnosis of a herniated disc was set aside in favor of a psychiatric etiology for his back pain. Although the Veteran's complaints of back pain were attributed to mixed hysterical psychoneurosis, the Board notes that the Veteran reported injuring his back in October 1946 while riding in a jeep, and he is considered competent to relate incidents that occurred during service. A in-service injury is therefore demonstrated. Although the evidence establishes the presence of an in-service injury, the Board finds that service treatment records do not support a link between the Veteran's current back disability and service. As discussed above, the diagnoses of a herniated disc and spinal neuralgia were set aside in favor of a psychiatric etiology of the in-service back complaints, and no chronic back disabilities were diagnosed during service. The March 1947 separation examination noted a history of a back sprain in October 1946, but contemporaneous examination of the spine was normal with no physical abnormality, full range of motion, and no deformity. There is also no evidence of arthritis of the spine within a year from the Veteran's separation from active duty service to allow for service connection on a presumptive basis. See 38 C.F.R. § 3.307, 3.309. In fact, the earliest post-service evidence of complaints related to the back dates from August 1975, almost 30 years after the Veteran's separation from service, and X-rays at that time were normal without evidence of arthritis. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's back disability was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Several of the Veteran's statements submitted in support of his claim appear to allege a continuity of back symptoms since active duty service. For example, in the December 2010 notice of disagreement, the Veteran reported that his back condition had "plagued" him his entire life. Similarly, the Veteran stated in January 2010 that injuries to the spinal discs can result in problems throughout a person's life. The Board interprets these statements as reporting a continuity of back pain since active duty service. Lay statements, such as those made by the Veteran reporting a continuity of symptomatology, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In this case, the Board finds that the Veteran's reported history of continuous back pain since service is not credible. While service records document some complaints of back pain, the initial diagnosis of a herniated disc was later set aside in favor of a psychiatric cause of the Veteran's complaints of back pain. The Veteran's in-service doctors explicitly found that his reports of back pain were vague, shifting, and inconsistent. The Veteran also did not report any back pain during the March 1947 separation examination, and his back was found to have full motion and no abnormalities. In addition, the Veteran's statements to his post-service health care providers are at odds with the history he has provided for compensation purposes. He never reported incurring a back injury during service to any of his treating physicians. As noted above, the earliest post-service evidence of back complaints dates from August 1975 when the Veteran was treated for a herniated disc in his lumbar spine. At that time, he reported being knocked down by a bull on his farm and specifically denied a history of similar pain in his back. The only time the Veteran has linked his current back pain to service is in statements issued in connection with his claim for compensation received many decades after his separation from active duty. The Board finds that the Veteran's statements and history made for compensation purposes decades after service are not credible in light of the complete absence of complaints or treatment for decades after service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that lay statements were not rendered insufficient by the absence of confirming medical evidence, but that the evidence could serve to support a finding that lay statements were not credible). The documented inconsistency in the Veteran's self-reported history of back pain, first noted by his physicians during active duty, also renders his more recent reports of a continuity of symptomatology not credible. There is also no competent evidence of a nexus between the Veteran's current back disability and active duty service. The only medical opinion of record, that of the June 2011 VA examiner, weighs against the claim for service connection. After reviewing the claims file and physically examining the Veteran, the June 2011 VA examiner found that the Veteran's degenerative disease of the lumbar spine and compression fractures of the spine were not related to active duty service, to include the in-service complaints and treatment for back pain. The examiner noted that the Veteran's current degenerative disease was in a different location than his back complaints during military service and service records did not document a significant back injury. The examiner also found that the Veteran's compression fractures were all caused by osteoporosis and acute injuries. The opinion of the June 2011 VA examiner was based on an accurate review of the Veteran's medical history and included a thorough and well-reasoned rationale. It is therefore entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Veteran's post-service treatment records are also negative for evidence of a link between his current back disability and service. As noted above, the Veteran never reported incurring an in-service back injury to his treating physicians, and he first sought post-service treatment for back problems after he was knocked down by a bull on his farm. His treating physicians have also consistently linked his compression fractures of the spine to his history of osteoporosis. For example, in April 2008, the Veteran's private doctor found that the Veteran's compression fractures were due to osteoporosis and minimal trauma. Thus, there is no competent medical evidence linking the Veteran's back problems to active duty service. The Board has also considered the Veteran's statements linking his back disability to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of back pain, but as discussed above finds that the Veteran's history of continuous symptoms since service is not credible. The Board also finds that his opinion as to the cause of his back pain simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was many years after his separation from active duty service. In addition, there is no competent evidence that the Veteran's degenerative diseases of the lumbar spine and compression fractures of the thoracic and lumbar spine are related to his active service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA has substantially satisfied the duties to notify and assist with respect to the claim to reopen service connection for a back disability. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen the claim. Regarding the reopened claim for service connection, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an August 2010 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the August 2010 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA examination in June 2011 in response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs