Citation Nr: 1225762 Decision Date: 07/25/12 Archive Date: 08/03/12 DOCKET NO. 08-32 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from October 1961 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. The Veteran appeared at hearing before a Veterans Law Judge at the RO in December 2010. A transcript of the hearing is of record. The Judge who conducted the hearing is no longer employed by the Board, having retired. Following the hearing, the Board remanded this matter for further development in February 2011. The requested development has been completed insofar as possible and the matter is now ready for appellate review. In a March 2012 letter, the Veteran was informed that the Judge who performed the hearing was no longer employed at the Board. It indicated that the Veteran had an opportunity for another hearing if so desired. The Board stated that if it did not hear from the Veteran in 30 days, it would presume that the Veteran did not want another hearing and would proceed with the appeal. To date, the Board has not received a response from the Veteran. Therefore, it will proceed to the merits of the claim. The undersigned has reviewed the transcript of the hearing. FINDINGS OF FACT 1. The Veteran was noted to have a low back disorder prior to his entry into service. 2. No increase in severity for the low back disorder was shown over the course of service. CONCLUSION OF LAW The criteria for service connection for a low back disorder, to include on the basis of aggravation, have not been met. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.306(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1131, 1132; 38 C.F.R. § 3.304(b). Service connection may also be granted for a disability on the basis of aggravation. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304, 3.306. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation if the pre service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Simply put, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but he may bring a claim for service-connected aggravation of that disorder. In that case 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). If increased disability is established, then the burden shifts to the government to show a lack of aggravation by establishing, by clear and unmistakable evidence, that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306(b); Jensen, 19 F.3d at 1417. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On a February 1961 pre-induction examination report, the Veteran indicated that he had injured his back in a car accident and that he had hurt his back on the job a year earlier. In a February 1961 record of induction report, the Veteran was noted to have a weak back. On his October 1961 induction report of medical history, the Veteran indicated that he had sprained his back in the past five years. At the time of the Veteran's October 1961 service induction examination, normal findings were reported for the spine and lower extremities. On a July 1963 report of medical history, the Veteran checked the "yes" box when asked if he had ever worn a brace or back support. In the summary section of the report, it was noted that the Veteran, prior to service in 1956, had sustained a back injury during a car accident. It was noted to be healed and normal function was present. On his October 1963 separation report of medical history, the Veteran again checked the "yes" box when asked if he had ever worn a brace or back support. In the physician's summary section it was indicated that the Veteran had worn a brace in 1956 after a car accident and that he had no back trouble now. At the time of his October 1963 service separation examination, normal findings were reported for the back and lower extremities, providing evidence against this claim. The record does not contain any treatment for low back problems during service nor are there any objective medical findings of low back problems in the years immediately following service. VA treatment records associated with the claims folder reveal that the Veteran did not report any problems with his back until the early 2000's. X-rays taken in April 2004 revealed severe degenerative disc disease at L4-5 and L5-S1. At his December 2010 hearing, the Veteran testified that he injured his back in an automobile accident in 1958. He indicated that he mentioned this at the time of his induction. He noted that he was still having back pain at the time he entered the service in 1961. The Veteran observed that his treatment records contained a notation of a weak back. He indicated that his back gave him quite a bit of trouble throughout service. The Veteran noted that the physician who treated him at the time of the automobile accident stated that he would have back trouble for life. He testified that he was a mortar man in service and that he had to go on fire missions. The Veteran stated that he currently had severe arthritis. He noted that he did not seek help or treatment for his back in service as every time anyone went for medical treatment they would receive extra duty, to include latrine duty. He testified that it was his opinion that his back condition worsened while he was in the military. The Veteran indicated that he had not had any surgery on his back. Per the Veteran's history and testimony and by way of service records, he had back problems prior to his entry into service. As such, the question then becomes whether such condition increased in severity during service. The Veteran bears the burden of showing such; the "at least as likely as not" standard applies. Treatment records prior to the Veteran's entrance into service contain findings of a back disorder dating back to 1956. The Veteran, by his own admission, has reported and testified as to having had back problems prior to service, resulting from an automobile accident in 1956/1958. Service treatment records associated with the claims folder, while noting a back injury in 1956, do not contain any findings of treatment or complaints of a back disorder while in service. The Veteran was noted to have normal function of his back on his July 1963 report of medical history and to have no current back problems when filling out his October 1963 service separation report of medical history. Moreover, normal findings for the spine and lower extremities were reported at the time of his October 1963 service separation examination. The Veteran, by his own testimony, indicated that he did not seek treatment for any back problems while in service. There were also no findings of back problems in close proximity to service and the Veteran did not testify as to having sought treatment for his back problems in the years immediately following service. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Board has considered the statements of the Veteran, noting that the Veteran is considered competent to report low back problems because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, 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"). 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). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of aggravation of preexisting back problems during service, while competent, is not sufficiently credible to establish that he aggravated his pre-existing back condition during service and that the symptoms had continued to the present day in light of the medical evidence of record, which indicates no such aggravation, clearly supported by the long period of time that the Veteran did not seek help for this pack problem following service. It is not disputed that the Veteran was noted to have a weak back prior to his entry into service and that he sustained a back injury in an automobile accident prior to service. However, on the July 1963 report of medical history, it was noted that the Veteran's back was healed and that normal function was present. Moreover, on his October 1963 service separation report of medical history, the Veteran reported that he had no back trouble, providing highly probative factual evidence against his current statements, outweighing them in that they were made prior to this claim and during the pertinent period in question. Furthermore, at the time of the October 1963 service separation examination, normal findings were reported for the back and lower extremities. As such, the Board finds that the Veteran's consistent denials of back trouble during service, including at separation, and reports of no back treatment in the years following service are more probative than are his assertions voiced years later in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). The Board must also emphasize the multi-year gap between the Veteran's period of service and his initial claim for a back disorder by way of aggravation, more than 43 years following service. If the Veteran were having continuous problems with his back since service caused by a "aggravation" of the problem during service, it is more likely that he would have filed a claim for service connection earlier. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value due to their inconsistency and the conflicting, contemporaneous records. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. There is no competent medical opinion of record demonstrating a relationship between the Veteran's current low back disorder and his period of service, to include by way of aggravation. The Veteran was asked to submit such information and has not done so to date. In this case, there is also no evidence that the Veteran is medically qualified to render an opinion as to whether any current back disorder is a result of a preexisting back disorder which was aggravated by his period of service. Consequently, his statements, without some form of objective medical corroboration, are not deemed to be of significant probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based upon the above, the preponderance of the evidence is against the claim. For all these reasons, the Veteran's claim for entitlement to service connection for a low back disorder, by way of aggravation of a pre-existing condition, is denied. In this case, the Board finds that the Veteran's consistent denials of back trouble during service, including at separation, and reports of no back treatment in the years following service are more probative than are his assertions voiced years later in connection with a claim for disability benefits. The Board must also emphasize the multi-year gap between the Veteran's period of service and his initial claim for a back disorder, more than 43 years after service. If the Veteran were having continuous problems with his back since service it is more likely that he would have filed a claim for service connection earlier. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value due to their inconsistency and the conflicting, contemporaneous records. Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. In this case, there is also no evidence that the Veteran is medically qualified to render an opinion as to whether any current back disorder is related to his period of service. Consequently, his statements, without some form of objective medical corroboration, are not deemed to be of significant probative value. Based upon the above, the preponderance of the evidence is against the claim. For all these reasons, the Veteran's claim for entitlement to service connection for a low back disorder, on a direct or presumptive basis, is denied. The Board finds that the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt is not for application, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. The Board observes that in a February 2007 letter, the RO provided the appellant with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter also told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice as to the disability rating and effective date elements of the claim in the February 2007 letter. VA has also complied with its duty to assist the Veteran in substantiating the claim. It appears that all pertinent post service treatment records have been requested and that all available records have been obtained insofar as possible. The Board also reviewed "Virtual VA" for any other pertinent records. As it relates to the necessity for an examination, the Board notes that in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). An examination is not warranted under 38 U.S.C.A. § 5103A(d) because there is no competent evidence that the Veteran's currently claimed low back disorder is related to service, to include by way of aggravation, and there is other sufficient medical evidence of record to make a decision (part 4). Not only does the evidence of record not support the Veteran's claim (or provide an indication of a problem associated with service), but it provides highly probative evidence against the factual contentions made. Moreover, the Veteran was previously informed in the VCAA letter noted above that he needed to provide medical evidence showing the disorder had existed since service. He has not done so. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, a VA medical examination is not necessary. Therefore, no further action is necessary to assist the claimant with the claim. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through his hearing testimony. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER Service connection for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs