Citation Nr: 1237508 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 05-21 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from November 1998 to November 2002. These matters came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded the present matters for additional development and due process concerns. With regard to the claim of service connection for a lumbar spine disorder, the Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A lumbar spine disorder did not onset in service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran contends that his low back disorder is the result of service, to include injury therein. In support of this contention, he has submitted a statement from a former service colleague who reported his memory of the Veteran complaining of back pain after sustaining an injury to the hip during a hiking exercise in 2000. See March 2008 Johnson statement. 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. § 1110; 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. The Veteran's service personnel records indicate he is a Persian Gulf veteran. Service connection may be established for a Persian Gulf veteran who exhibits objective indications (e.g., objective evidence perceptible to an examining physician and other non-medical indicators capable of independent verification) of a qualifying chronic (i.e. existing six months or more, to include by exhibiting intermittent episodes of improvement and worsening over a six month period) disability which cannot be attributed to any known clinical diagnosis, but which instead resulted from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). There are three types of "qualifying chronic disabilities" for the purposes of 38 C.F.R. § 3.317: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome); or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). 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). The service treatment records reflect no histories, findings, or diagnoses suggestive of a chronic low back disorder. The service examination records also reveal no findings or diagnoses suggestive of a chronic low back disorder. The August 2002 separation "report of medical history" does reveal that the Veteran filled in the circle marked "yes" as to "recurrent back pain or any back problem". The Veteran also filled in the circle marked "no," however, and the record, notably the line slashed through the circle indicating "yes" and the initials beside it, clarifies that the positive history was an error. Thus, the Board finds the service medical records do not suggest the existence of low back symptoms. A June 2004 private treatment record reflects the Veteran's history of back pain. Magnetic resonance imaging (MRI) revealed a disc herniation with impingement. See Frisco records. Subsequent records reveal the Veteran's continued history of low back pain. A December 2007 VA examination record reflects the Veteran's history of low back pain which reportedly began after a training exercise in 1999. The Veteran explained that during the training exercise, he was thrown onto the ground landing on his back. After examination, the Veteran was diagnosed with a herniated disc of the lumbar spine with chronic low back pain and no radicular symptoms. The examiner noted that the history of injury was not confirmed by the service medical records; thus, the examiner could not confirm or deny the relationship of the back problem to service. A November 2008 VA examination record reflects a diagnosis of myofascial cervicolumbar syndrome. The examiner opined that the myofascial cervicolumbar syndrome was unrelated to and not caused by any condition while on active duty. The examiner explained that a review of the service medical records failed to show any treatment for a cervical or lumbar condition while the Veteran was on active duty. See March 2009 addendum opinion. A November 2009 private physician's statement reflects the physician's opinion that the Veteran's back disorder occurred during service. See November 2009 Frisco statement. A May 2010 VA examination record reflects a diagnosis of myofascial cervicolumbar syndrome. The examiner reported that he found no service treatment records relating to the cervical or lumbar spine. Thus, he believed the spine condition was unrelated to service. In an addendum opinion, the examiner reported that the self-report of recurrent lower back pain on the 2002 separation examination did not constitute a diagnosis of myofascial lumbar syndrome; rather, "it [was] just a complaint with no specific diagnosis given by an examin[er]." The examiner added that a review of the treatment records failed to show any treatment for a diagnosed lumbar condition while on active duty. Thus, the examiner believed the lumbar spine condition was more likely secondary to functional overlay, the Veteran's history of morbid obesity, and musculoskeletal deconditioning due to physical activity. Service connection is not warranted on a presumptive basis under 38 C.F.R. § 3.317 because the record indicates that the reported lumbar spine complaints have been attributed to a known diagnoses for which service connection is not presumed. Furthermore, service connection is not warranted on a direct basis because the probative evidence does not indicate that the lumbar spine disorder onset in service or is causally related to service. The preponderance of the probative evidence does not suggest that the lumbar spine onset in service. The service treatment and examination records reflect no findings or histories suggestive of a chronic lumbar spine disorder, and the first evidence suggestive of a chronic disorder dates in 2004, approximately two years after separation from service, during which time the Veteran worked in a "physically demanding" job. See January 2005 statement. See also Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim). The Board acknowledges that the Veteran now reports low back pain during and since service and that he has submitted evidence, including a lay statement, on his behalf. Even assuming the Veteran had low back pain in service, however, the current history of "chronic and continuous" back pain during and since service is not credible in light of the absence of any complaints related to the back during service (though the Veteran received frequent treatment for other orthopedic injuries and symptoms); the negative history of recurrent low back pain at separation; the absence of a history of long-standing low back pain at the time of initial treatment; and the evidence of a physically demanding job after service. Additionally, the competent and probative evidence does not suggest a link between the lumbar spine disorder and service. Although the record includes a positive nexus opinion from a private physician, it lacks probative value because the physician provided no rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board acknowledges that the Veteran believes his lumbar spine disorder is related to service. As a layperson, however, the Veteran is not competent to make such a determination, and in the absence of medical evidence of such a link or corroborative lay evidence suggestive of such a link (such as a credible evidence of continuity of symptomatology), the Board finds the Veteran's statements are not probative evidence of a nexus. The preponderance of the probative evidence is against the claim; there is no doubt to be resolved, and service connection is not warranted. 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). Substantially compliant notice was sent in March and May 2005, March 2006, and November 2007, and the claim was readjudicated in a January 2008 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology of the lumbar spine disorder, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran's representative contends that the VA examiner's opinion is not adequate because it does not discuss whether the Veteran's weight in service affected his lumbar spine condition. The record documents that the examiner considered the claims file, which includes the service medical records documenting the Veteran's weight in service and the in-service treatment for obesity, however, and based on that consideration, the examiner's separate determination that the lumbar spine disorder was unrelated to service, and the examiner's reliance of factors other than the history of obesity in forming his opinion, the Board finds the opinion adequate. Moreover, even if the opinion were not adequate, the Board finds an opinion is not needed due to the absence of credible evidence of injury during service or symptoms during and since service: although competent to report such a history, the Board finds it is not credible in light of the lack of corroboration in the service treatment records (though they document treatment for multiple other orthopedic complaints and injuries), separation examination history and report, and the absence of a history of injury at the time of the initial treatment in 2004. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for a lumbar spine disorder is denied. REMAND In light of the arguments presented in the September 2012 brief as to the inadequacy of the opinions of record, another opinion is needed to clarify the relationship between service and the right knee disorder. Accordingly, the case is REMANDED for the following action: 1. Ensure that the record includes up-to-date VA treatment records. 2. Obtain an opinion from an appropriate medical professional. The examiner is to state whether it is at least as likely as not that the right knee disorder onset in service, is causally related to service, or was caused or aggravated by the left knee disability. The examiner must provide a rationale for the opinion, with discussion of the histories of right knee pain in June 1999, the negative history of right knee symptoms at the time of the August 2002 VA examination, the Veteran's weight during and after service, and the VA examiners' opinions. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Thereafter, readjudicate the claim of service connection. If the benefit sought on appeal remains denied, the appellant is to be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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 of Veterans' Appeals or by 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. 2011). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs