Citation Nr: 1237000 Decision Date: 10/25/12 Archive Date: 11/08/12 DOCKET NO. 10-30 350 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1969 to November 1973. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim requires further development before being decided on appeal, so the Board is remanding it to the RO via the Appeals Management Center (AMC). REMAND Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. The Veteran asserts that he has a low back disability that is the result of his active military service. Specifically, he states that he fell approximately 20 feet from a telephone pole in December 1971, injuring his low back. He also claims to have had low back problems ever since that injury, so he believes it is logical to deduce that these ongoing problems are a result of that injury, hence, the reason he is entitled to service connection for this consequent disability. His service treatment records (STRs) document that he was treated for a complaint of a hurt back in December 1971. The impression was lumbosacral strain. Pain medication was prescribed and he was told to avoid heavy lifting. Although his subsequent October 1973 military separation examination was normal, there is at least indication of an injury to his low back while in service, so relevant trauma. The question then becomes whether his current low back disability is a result or residual of that trauma in service, as he is alleging. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). His post-service treatment records show ongoing treatment for low back pain. In June 2011, he had a VA compensation examination of his spine. The diagnoses were degenerative joint disease and degenerative disc disease of the lumbar spine. Thus, there is no disputing he has current low back disability. The salient question is whether his current low back disability is the result of the injury in service or, instead, other unrelated factors. The June 2011 VA examiner provided a medical opinion on this determinative issue of causation, but the opinion is not altogether clear. Initially, the examiner indicated it is at least as likely as not the Veteran's claimed condition is the same as or a result of the lumbosacral strain shown during his active duty. So this opinion appears to support the claim. However, in an addendum later that month, the examiner indicated it is less likely than not the claimed condition is the same as or the result of the lumbosacral strain shown during active duty. So this second (supplemental) opinion is against the claim. Thus, this examiner has given two diametrically opposing opinions regarding the same claim. The Board also finds that the underlying explanation (i.e., rationale) for the second opinion is inadequate, and this is where most of the probative value of an opinion is derived, not instead from mere review of the claims file or statement of the ultimate conclusion. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner arrived at the opinion essentially because there is an absence of documented treatment for the low back condition for nearly 10 years after the Veteran separated from military service. This is true as the medical evidence shows he only began voicing complaints of low back pain and resultantly receiving treatment in 1980 or thereabouts. Nevertheless, he does not dispute that he did not receive treatment for several years after his service, but he maintains that he still had the low back pain during those intervening years of no treatment and that his claim should not be denied simply because he failed to seek treatment for the pain. His wife also submitted a statement indicating he has always had low back pain since his injury in service. The essence of 38 C.F.R. § 3.303(b) is continuity of symptoms, not treatment. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (i.e., permanency) of disease or injury in service to, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Thus, besides being contradictory, the VA examiner's second opinion appears to not take into account the Veteran's entire medical history because it mistakenly focused on continuous treatment rather than continuous symptoms. The Veteran and his wife are competent, even as lay persons, to say he has experienced continuous low back pain since his injury in service. When eventually deciding this claim, the Board will have to determine whether their lay testimony concerning this also is credible to ultimately have probative value. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas 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"). Two of the three requirements for service connection can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition at issue was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although the third requirement for service connection does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). The Board therefore finds that this claim must be remanded for still additional medical comment on this determinative issue of causation. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination or opinion for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or notify the claimant why one cannot or will not be provided). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. If available, have the June 2011 VA compensation examiner (who also submitted an addendum later that month) provide still additional comment on the nature and etiology of the claimed low back disability. If, for whatever reason, this examiner is no longer available to comment, then have someone else do it that is equally qualified. But in this eventuality, it may require having the Veteran reexamined, although this is left to the designee's discretionary as to whether another examination is needed. Whoever designated is first again asked to identify all current low back disabilities, e.g., lumbosacral strain, degenerative joint disease, degenerative disc disease, etc. All necessary diagnostic testing and evaluation needed to make this determination, including X-rays, should be performed. For each current low back disability identified, the examiner is asked to comment on the likelihood (very likely, as likely as not, or unlikely) the disability incepted during the Veteran's military service from November 1969 to November 1973 or is otherwise related or attributable to his service, including especially to a fall from a telephone pole in December 1971 resulting in a diagnosis of lumbosacral strain. Consideration should be given to the Veteran's complaints referable to this problem during service and after service, even if treatment is not documented. To reiterate, he is competent to proclaim having experienced relevant symptoms like continuous low back pain since that injury in service, even absent indication of treatment for these symptoms, such as would be documented in actual treatment records. When eventually deciding this claim, the Board, as fact finder, will have to assess the credibility of his lay statements concerning this to determine whether they are both competent and credible to ultimately have probative value. So, in the meantime, the examiner is asked to consider the likelihood that the type of injury the Veteran sustained in service, even if not again treated until some 7 or so years after service, could have resulted in the type of low back disability he now has when considering whatever diagnoses are deemed appropriate. It is imperative the examiner discuss the underlying rationale for all conclusions reached or opinions expressed, if necessary citing to specific evidence in the file. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).