Citation Nr: 1237264 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 01-06 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to April 1954. This matter comes to the Board of Veterans' Appeals (Board) from a February 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied the benefit sought on appeal. The Veteran perfected an appeal of that decision. In an April 2003 decision, the Board of Veterans' Appeals (Board) found that the evidence submitted by the Veteran was new and material sufficient to reopen a previously denied claim, and remanded the claim for additional development of the record. By decision dated August 2005, the Board denied service connection for a low back disability. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court), which, by Order dated January 2007, granted a Joint Motion for Remand (JMR). In June 2007, the Board again remanded the claim to ensure due process and to obtain additional evidence, after which it again denied the claim in October 2009. The Court then set aside the October 2009 Board decision by way of its June 2011 Memorandum Decision. In November 2011, the Board again remanded the claim for action in accordance with the Court's decision. As discussed further below, the remand directives have been substantially complied with. The matter is now again before the Board for adjudication. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). FINDING OF FACT A chronic back disability was not shown in service or for many years thereafter, and the most probative evidence fails to link the current disability to service. CONCLUSION OF LAW The requirements for establishing service connection for a chronic low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development 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, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in letters dated in September 2003 and June 2007, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2007 letter also advised the Veteran of how disability and effective dates are assigned, and the type of evidence which impacts those determinations. The Veteran's claim was last readjudicated in August 2012, by way of a supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the available service treatment records, Social Security Administration records, post-service private and VA medical records, and the report of a VA examination. The Board notes that the Veteran's complete service treatment records and his service personnel records were sought, but were not located. The National Personnel Records Center (NPRC) stated that it has no service treatment records for the Veteran, and that those records are presumed to have been destroyed in a fire at NPRC that occurred in July 1973. The Court has noted that when "VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources. Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The Board observes that in the June 2007 letter, the Veteran was advised that his service treatment records were not available, and he was informed that he could submit alternative sources of evidence, include statements from service medical personnel; letters written during service; "buddy" certificates; and medical evidence following service. Also, in July 2012, he was again informed that his service treatment records could not be obtained and also informed of the absence of morning reports from his unit showing any issues related to his health. He was again notified that he should send any information he had to VA. He did not reply. The Board notes that the VA also attempted to obtain morning and sick reports. The Appeals Management Center contacted the National Archives and Records Administration (NARA), but was advised by a March 2009 letter that such materials were not among the operations unit records in its custody. The letter from NARA indicated that pertinent information might be in the "Surgeon General Tapes" which were in the custody of the National Personnel Records Center (NPRC). The Board notes that the NPRC, responding to a request for information from VA, reported in February 1992 that the Veteran's records were fire-related. The SGO records, if extant, would have been included in the response. See VA Adjudication Manual M21-MR, Part III, subpart iii, 2.E.29.1 (responses to requests for service treatment records dated after May 1990 from the NPRC includes any available SGO records). Following the Court's June 2011 memorandum decision, the Board again sought additional information from the NPRC in an attempt to more fully develop the record. In particular, morning reports showing that the Veteran was sent to sick call related to back complaints in service, as he alleges, were requested. In an April 2012 response, the NPRC indicated that the allegation had been investigated and that the Veteran's personnel jacket was destroyed in the fire, that his complete service treatment records were destroyed, and that there is no reference to health in any morning reports of the relevant time period in the Veteran's unit. Thus, the Board finds that no additional records exist and that a remand for additional attempts to obtain records is unnecessary. The Appeals Management Center (AMC) notified the Veteran, by way of a July 2012 letter, that they were unable to locate the morning reports or any other records from the NPRC, and also asked the Veteran to send VA any records he had in his possession. Also, a memorandum related to the formal finding on the unavailability of the morning reports was added to the claims folder in July 2012. This memorandum outlined the steps taken to attempt to obtain the records requested. The record shows that the Veteran did not respond the July 2012 letter. Thus, the Board will adjudicate the claim based upon the evidence of record at this time. The Board finds that the AMC did substantially comply with its remand directives in this regard. In fact, the Board finds that the actions requested in each of the prior remands with respect to the claim being decided have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted above, the record reflects that the Veteran's complete service treatment records are unavailable. In cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an initial matter the Board finds that the evidence fails to reflect arthritis of the spine manifest to a degree of 10 percent or more within a year of the Veteran's April 1954 separation from service. In fact, as discussed in further detail below, the first instance of treatment related to the Veteran's back complaints is dated many years following his separation from active service. Consideration of the presumptive provisions applicable to chronic diseases does not, therefore, support a grant of service connection on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309 (2011). The Veteran, however, asserts that service connection is warranted for a low back disability on a direct basis. He argues that he injured his back during service and that he sought treatment for it while in service. The evidence relating to the Veteran's claim includes the Veteran's statements, the limited available service treatment record and post-service private and VA medical records, as well as a VA examination report. With his October 2000 claim, the Veteran submitted a photocopy of a January 1954 document from the Headquarters, U.S. Army Hospital, Fort Campbell, Kentucky, which reflects that a physical profile was issued for low back pain. The Veteran was limited to no P.T., running, jumping, or heavy lifting. It was indicated that the Veteran was to report to a medical facility the next month for re-evaluation. Thus, the Board indeed recognizes that there exists evidence of in-service symptoms related to the low back. There is not, however, any diagnosis related to the back noted on this report. The question remains whether any current back disability is at least as likely as not causally connected to the January 1954 complaint of low back pain. The first post-service record is a report from a private physical therapist dated in April 1972. It shows that the Veteran was being treated for right lumbosacral strain, which appeared to be chronic in nature. It was stated that the Veteran had had the problem for many years. There was no mention of the Veteran's active service or any injury. And, the Board notes that this 1972 report reflects treatment eighteen years after discharge, and does not relate the disorder to service. The Veteran was seen in a VA outpatient treatment clinic in January 1986. He reported that he had back pain since service. The diagnosis was chronic recurrent low back pain. An X-ray study of the lumbosacral spine in March 1986 revealed scoliosis with moderate spurring. In a June 1988 statement, a private physician summarized the Veteran's medical history. He noted that the Veteran had a history of arthritis of the back, secondary to a no-fault accident in February 1982. Also of record is a September 1989 letter written by the attorney who was representing the Veteran in a claim for Social Security Administration benefits. This letter was addressed to a private physician. It was indicated that there were medical reports dating to 1982 documenting the Veteran's degenerative arthritis of the lumbar region. A January 1991 physical therapy initial evaluation shows that the Veteran reported low back pain, with a long history of working heavy construction. He reported to the physical therapist that he was given a diagnosis of arthritis of the spine in 1972 and that his back has been hurting on and off ever since. There was no indication at this time that the back pain dated back to the time of service. It suggests that the onset was in 1972, which is consistent with the first showing of post-service back treatment in the record. Also, in January 1991, a private office visit summary includes review of x-rays of 1987 and 1982 x-rays, which were reported to show mild spurring, lumbar spine, minimal disc degeneration. An October 1991 x-ray report in the record shows moderate osteoarthritis changes in the lower vertebral bodies. The radiologist reported that this was no significant change when compared with an April 1987 x-ray report. In December 1991, the Veteran submitted a claim for service connection for a back disorder, at which time he reported having the same back problems since service in 1953. In a handwritten statement in February 1992, and at the time of a February 1992 VA examination, the Veteran again reported that he had low back pain since being in military service. He reported going to sick call several times during service and that, ever since, he has had persistent low back pain. X-ray examination at that time showed degenerative disease of the lumbar spine. In a May 1995 medical report within the records of the Social Security Administration, the Veteran reports low back pain restricted to the lumbar area. It is interesting to note that he reported in his history at that time a 1987 work-related injury and a 1989 car accident, but made no mention of his back pain existing since his period of service more than thirty years prior. In a report of initial evaluation for physical therapy dated in December 1999, the Veteran reported that over the prior week he developed right low back pain radiating into the right hip. The physical therapist noted that, according to the Veteran's reported history, there is no apparent cause of injury. There is no indication in this private report that this was ongoing back pain since service. In June 2000, the Veteran reported to a VA physician that he experienced back pain after jumping out of a trench in Korea. He reported that he received physical therapy in Korea and for the remainder of his time in service. He claims he went on sick call and that he has had pain ever since. The impression was that "chronic back pain may be related to an original injury, however, he has osteoarthritis evident on x-ray." In an April 2001 statement, as well as in his June 2001 substantive appeal, the Veteran reported that during service he jumped from a truck onto the ground and also from the ground onto a truck to take cover while enemy artillery shells were coming in. He stated that his back was never right after that, and again reported that he went to sick call in Korea and underwent physical therapy when he returned to the United States. He continued to report a long history of back pain according to VA outpatient treatment notes. A June 2003 physical therapy note shows that the Veteran again reported pain since service. The Veteran was afforded a VA examination of the spine in March 2005. The examiner noted that he reviewed the claims folder. The Veteran described his in-service injury and asserted that he had experienced recurrent back pain since then. He maintained he had been treated with exercise therapy during service, but acknowledged that his main treatment for the low back following service had occurred during the previous 10 to 15 years. Following an examination, the diagnosis was degenerative intervertebral disc disease of the lumbar spine without evidence of radiculopathy. The examiner's opinion reflects that the Veteran's current back condition was likely age-related rather than secondary to the injury in service. The examiner pointed out that the Veteran spent several years operating heavy equipment, which would not have been possible had there been any degree of significant injury to the lumbar spine during service. The remaining evidence of record includes ongoing VA outpatient records reflecting the existence of a current lumbar spine disability, but without any opinion as to its cause. While the Board recognizes the existence of currently diagnosed degenerative disc disease of the spine, and also recognizes that there is one record at the time of service showing that the Veteran was put on a profile related to low back pain, the preponderance of the medical evidence in this matter weighs against the Veteran's claim. In this case there is a private treatment report dated in June 1988 relating the Veteran's arthritis of the back to a 1982 motor vehicle accident. In addition, there is a VA treatment report from June 2000 providing an impression stating "chronic back pain may be related to an original injury, however, he has osteoarthritis evident on x-ray." To the extent such statement can be construed as suggesting the Veteran has chronic back pain related to an injury in service, the Board finds such statement is speculative in nature and is afforded no probative weight. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). Conversely, the Board finds the opinion of the March 2005 VA examiner to be highly probative. This opinion was based upon review of the claims file, including the Veteran's lay statements relating his medical history and complaints of pain since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The VA examiner concludes that the Veteran's current back disability is not related to service, but rather, is related to the aging process. Again, this VA examiner explained that the Veteran's work in heavy construction following service is an indicator that he did not have a disabling back condition immediately following service. The Board acknowledges the Veteran's assertion throughout the course of this appeal that he currently suffers from a back disability due to his in-service activities, including jumping on and off of a truck during a tour in Korea. He has also, albeit inconsistently, reported several times that he experienced back pain ever since service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board recognizes that the Veteran first suggested that he experienced back pain since service to a VA physician in 1986. Although the Veteran is competent to describe when he first subjectively noticed back pain or other symptoms, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Likewise, the Veteran in this case does not have the medical expertise required to determine whether the current back disability is causally connected to any event of service versus due to the post-service work in heavy construction, or work related injury, or age. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, joint pain can have many causes, and medical testing and medical expertise are needed to determine etiology. Thus, the Board finds that the Veteran is not competent to render a medical opinion on the onset and etiology of his current back disability. The opinion of the VA medical examiner, which was based upon a review of the claims file, examination of the Veteran, and consideration of the Veteran's reported lay history, is of greater probative value than the Veteran's lay contention as to the onset and etiology of his disability. Id. Moreover, while the Veteran may recall experiences of back pain at the time of his active service, the first evidence in the claims file showing post-service treatment of the back is in 1972, almost twenty years following his discharge from active service. While the passage of time is not a definitive basis for denying a service connection claim, the Board finds that the passage of more than twenty years between the Veteran's service and any documented treatment for back symptoms, weighs against the notion that the current disability is related to any pain experienced during his period of active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that lengthy periods of time without symptoms or treatment can weigh against a claim). Finally, the Board observes that while he reported several times that he had back pain since his active service, the Veteran also was treated several time related to his back pain and made no mention of this fact, and in fact reported pain in relation to other life events. In particular, in the Social Security records, the Veteran is noted to report back pain and reference a work related injury and a car accident in the 1980's, rather than reference any incident of service. Also, with his 1991 physical therapy, the Veteran reported a history of back pain and a history of working in heavy construction, but not a history of back pain since service. The Board finds the statements provided at various times over the years since the initial treatment in 1972 are inconsistent, and as such, the contentions of having back pain continually since service lack credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Therefore, based upon the foregoing, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's current low back disability is not related to service. While the Board has considered the Veteran's lay contentions as to the onset and etiology of his current disability, the Board has accorded greater weight to the balance of the probative medical evidence of record, which weighs against his claim. Accordingly, service connection for a low back disability is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable concerning this issue. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs