Citation Nr: 1220008 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 08-26 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1984 to December 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDING OF FACT A low back disorder did not have its onset in service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection of a low back disorder have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2007. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant an examination, obtained a probative medical opinion (i.e. an opinion supported by rationale) as to the likely etiology of the low back disorder, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. The Board acknowledges that there appear to be outstanding treatment records, notably those pertaining to the initial diagnosis of a low back disorder. The Veteran is responsible for providing pertinent evidence in his possession. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Thus, the Board finds VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision at this time. Service Connection The Veteran seeks service connection for a low back disorder. He contends that he has had "chronic and continuous" low back pain since injuring the back during service. See, e.g., August 2007 and August 2008 statements. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Service connection may also be granted for chronic disorders, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). A March 1986 service treatment record reflects the Veteran's history of lower back pain secondary to playing softball and lifting objects. The Veteran denied numbness, tingling, or weakness in the lower extremities. After examination, he was assessed with back strain. The record is then silent as to the lower back until September 1987, when the Veteran presented at the emergency room with a complaint of acute lower back pain while bending over. He also reported some tingling in the left leg but denied weakness. After examination, the Veteran was assessed with lower back strain, prescribed bedrest, local heat, and medications, and advised to follow up in 48 hours if the condition did not resolve. The record does not show that the Veteran sought follow-up treatment, and the October 1987 separation examination (conducted approximately 13 days after the September 1987 treatment) reflects normal clinical findings for the spine, a negative history as to recurrent back pain, and a history of "excellent health." A September 2006 private treatment record reflects the Veteran's history of intermittent back problems for "many years" which had bothered him "only two to three times per year," until several months earlier, when the symptoms worsened and increased in frequency to a nearly daily occurrence. The Veteran reported that he had been previously evaluated for a small lumbar or lumbosacral herniated nucleus pulposus. Magnetic resonance imaging (MRI) was done which revealed disc bulges and facet arthritic changes and small annular tears at L2-L3 and L3-4. See Cumberland Neurology Group treatment records. A January 2008 VA examination record reveals a diagnosis of degenerative disc disease. The examiner opined that it was less likely than not that the Veteran's low back disorder was caused by or a result of the back injuries sustained in service. The examiner noted that although the Veteran was treated for strain during service, he denied recurrent back pain at separation, spine examination was normal at separation, the Veteran worked for 20+ years in a job with heavy lifting, and there was no record of complaint or treatment for the back until 2006. The examiner added that there was nothing available in the literature to support arthritic changes as secondary to soft tissue injury. The evidence does not suggest that a low back disorder had its onset in service or is causally related to service. The Board acknowledges that the service treatment records reflect treatment for low back strain; however, the competent and probative evidence does not suggest that a chronic residual or disorder onset in service or existed continuously since service. The service treatment records do not suggest persistent back symptoms after either injury; the Veteran denied recurrent back pain and indicated that he was in "excellent" health at separation; and the first diagnosis of record indicative of a chronic disorder dates approximately 19 years after separation. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). See also 38 C.F.R. § 3.159(a)(2); Layno, at 471. The Board acknowledges that the Veteran has now reported constant low back pain since service and that he reported a history of back pain for "many years" in 2006. The current history of "chronic and continuous" back pain since service is not credible, however, in light of the Veteran's denial of symptoms (or impairment of health) at separation and his initial history of intermittent episodes of back symptoms and, although the Board finds his initial history of "many years" of symptoms is credible, the Board finds this history, standing alone, is not probative evidence of an in-service onset of back pain. Furthermore, the record does not contain any competent evidence linking the low back disorder to service, though it does include a VA examiner's probative opinion that the Veteran's low back disorder is not causally related to the in-service sprains. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran asserts that his low back disorder is secondary to service. As a layperson, however, the Veteran is not competent to make such a determination. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 471. The preponderance of the probative evidence is against the claim; there is no doubt to be resolved, and service connection is not warranted. ORDER Service connection for a low back disorder is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs