Citation Nr: 1300534 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-11 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right leg disability to include as secondary to a back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1977 to June 1979 and from December 1980 to October 1987. The period of active duty service from December 1977 to June 1979 was honorable. However, according to an administrative decision dated in September 2006 regarding the issue of character of discharge, the Veteran's active duty service from December 1980 to October 1987 was determined to be a discharge or release under other than honorable due to dishonorable conditions. Therefore, the Veteran is barred from receipt of VA benefits for that period of service. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2006 and June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board denied the Veteran's claims of entitlement to service connection for a back disability and right leg disability in an October 2008 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Partial Remand. The Court granted the motion in December 2009 and vacated the portion of the Board's October 2008 decision that denied entitlement to service connection for a back disability and right knee disability to the Board for action consistent with the Joint Motion. The Board remanded these matters in May 2010 and February 2012 for further development. After completing the requested actions to the extent possible, the RO continued the denial of each claim as reflected in the October 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. Degenerative disc disease and degenerative joint disease of the lumbar spine was not diagnosed within one year after discharge from military service and the preponderance of the evidence shows that the Veteran's current low back disability is not etiologically related to military service. 2. The preponderance of the evidence shows that the Veteran's right leg disability is not caused by or aggravated by a service-connected disability or that it is etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right leg disability to include as secondary to a back disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through letters dated in September 2006 and April 2007 which preceded the rating actions on appeal. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service personnel records, some of the Veteran's service treatment records, private treatment records, VA treatment records, lay statements from the Veteran and his wife, Social Security disability records and a VA examination dated in August 2010 with an addendum dated in November 2011. The Board recognizes that the record does not contain all of the Veteran's service treatment records. The RO attempted to obtain the Veteran's service treatment records through the Personnel Information Exchange System (PIES) in July 2005. The RO received a negative response in August 2005. Thereafter, the RO sent a search request to the Records Management Center in August 2005 and the RO received a negative response in September 2005. The RO sent a letter to the Veteran in September 2005 informing him of alternative sources of evidence other than service treatment records to support his claims. In addition, the RO notified the Veteran in an October 2006 letter that the RO had been unable to obtain his service medical records from the service department and the letter asked that the Veteran submit any service treatment records in his possession to the RO. In response to the letter, the Veteran submitted copies of some of his service treatment records in October 2006. A November 2006 memorandum reveals a formal finding of unavailability of the Veteran's service treatment records with a list of the efforts to obtain these records. Accordingly, the Board finds that VA has fulfilled its heightened duty to assist the Veteran when service treatment records are unavailable, through no fault of his own. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to her claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). The August 2010 VA examination report with a November 2011 addendum reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran with respect to his back and right leg. The examiner discussed the relevant evidence of record and documented the results of the physical evaluation. Following the above, the examiner provided a diagnosis and a nexus opinion with supporting rationale, which appears to be based on the evidence of record. The Board observes that the Veteran's representative argues that the VA examination and addendum are inadequate because the examiner did not discuss the lay statements from the Veteran's wife submitted in October 2006. The Veteran's wife stated that she and the Veteran had been married for twelve and a half years and that "[h]e has had back pain from time to time" and "it has continually gotten worse." The examiner noted that he reviewed the Veteran's claims file, which included this lay statement. Thus, it appears that the examiner considered this lay statement prior to forming his opinion. Furthermore, the statement from the Veteran's wife is vague with respect to the onset of the Veteran's back pain and her statements do not indicate a continuity of symptomatology of back pain since discharge from his honorable active duty service in June 1979. Accordingly, the Board finds that the VA examiner's opinion is adequate without specifically discussing such lay statement. Based on the foregoing, the Board finds the VA examination and addendum are adequate for adjudication purposes. These issues were previously remanded in May 2010 in order to provide the Veteran with a VA examination and opinion. The record contains an August 2010 VA examination report with November 2011 addendum that addresses the questions raised by the Board and it was supported by an explanation. The issues were remanded again in February 2012 to obtain any outstanding Social Security disability records and any outstanding VA treatment records from April 2007 to the present. The claims file also contains a copy of the Veteran's Social Security disability records to include SSA administrative decisions and the medical records relied upon in such decisions. VA treatment records from April 2007 to February 2012 were associated with the record via Virtual VA. Accordingly, the Board finds that there has been substantial compliance with the May 2010 and February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claims for Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247, 252 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Low Back Disability The Veteran claims that his low back disability is related to military service. Specifically, the Veteran contends that he first injured his back when he fell off of a truck in 1978 during military service and his current back disability is related to that in-service injury. In assessing whether the Veteran is entitled to service connection for a low back disability, the evidence of record must show that the Veteran currently has the claimed disability. Post service medical records show that the Veteran has a diagnosis of herniated nucleus pulposes of the lumbar spine and lumbar degenerative joint disease/degenerative disc disease with radiculopathy, status post laminectomy. The August 2010 VA examination reveals a diagnosis of failed back syndrome secondary to a herniated disc at L3-4 level requiring surgical intervention. Thus, there is medical evidence of a current diagnosis of a back disability. The Veteran's service treatment records support his assertion that he had an injury to his low back during military service. The service treatment records show that in January 1978 the Veteran fell off of a vehicle and landed on his coccyx. Physical examination revealed a tender coccyx, with no changes in sensation or motor in the legs. X-rays were negative for fracture. There was tenderness "only" and distal nerves were intact. The diagnosis was "coccyxal contusion." Accordingly, the Board finds that there is evidence of an injury to the Veteran's coccyx during military service. Nevertheless, the competent and credible evidence does not show that the Veteran's current low back disability is related to his active military service, his arthritis of the lumbar spine manifested to a compensable degree within one year of discharge, or manifested a continuity of symptomatology indicative of low back disability in the first several years after discharge from honorable military service. The first medical evidence that the Veteran sought treatment for a low back problem after discharge from military service was in May 2004, approximately 17 years after discharge from military service and approximately 25 years after discharge from honorable active duty service. Furthermore, when the Veteran sought treatment for his back in June 2004 he reported that he sought treatment for back pain in 1999, which was 12 years after discharge from military service. The Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With respect to whether there is evidence of continuity of symptomatology since service, the record includes an October 2006 statement from the Veteran's wife in which she stated she and the Veteran had been married for over 12 years and he had back pain from "time to time and it has continually gotten worse." The Veteran's wife is competent to report her observations of the Veteran and his complaints of pain. In a March 2010 VA treatment record that his back pain began in 1970's when he fell off an icy tank. The Veteran, as a lay person, is competent to report pain in service and back pain since military service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (Veteran is competent to testify regarding continuous pain since service). Lay statements are subject to a Board analysis of credibility. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992). The Board observes that the Veteran has provided conflicting statements with respect to the onset of his back pain. On his July 2005 service connection claim form, he reported that the onset of his back pain was in May 2004, but also said he'd had problems with his back "ever since [service]." A June 2004 private treatment record reveals that the Veteran reported having pain in his low back for the last three to four weeks, but denied a history of back trauma. Furthermore, the Veteran reported in a June 2004 private treatment record that he had a history of back pain in 1999 and it was treated with chiropractic manipulation with improvement. A February 2007 VA treatment record shows that the Veteran reported a history of chronic low back pain since 1999. In light of foregoing, the Board finds that the Veteran's statements are not credible and it is unable to afford his statements regarding a continuity of low back problems since the injury in service any probative value with respect to the question of whether there has had a continuity of symptomatology since service. The statement from the Veteran's wife supports his assertion of back pain, but does not indicate a date of onset of back pain or continuity of symptomatology since discharge from honorable active duty service in 1979. As the record does not contain evidence of degenerative disc disease or degenerative joint disease of the lumbar spine within one year after discharge of service and there is no credible or probative evidence of continuity of symptomatology of low back pain since service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current low back disability and his active service. In this case, the medical evidence of record contains a negative medical opinion dated in November 2011. After obtaining an oral history of the disability from the Veteran, reviewing the claims file, and conducting a physical examination of the Veteran in August 2010, the VA examiner determined that the Veteran's current low back condition was less likely as not incurred in or caused by the claimed in-service injury. The examiner observed that the Veteran sustained a contusion to his coccyx while he was on active duty as evidenced in the service treatment records. He explained that this is completely unrelated anatomically and physiologically to his surgical intervention for a lumbar spine radiculopathy, which resulted in a postoperative scar entrapment syndrome as evidenced by continued pain in his lower extremity. He went on to note that the Veteran's coccyx bruise would not have resulted in any type of lumbar disc condition as he had no complaints referred to that area found in review of the service treatment records. The Board notes that the VA examiner mainly focused on the medical evidence of record and did not discuss the Veteran's prior lay statement regarding continuity of symptomatology in his opinion. In this case, the lack of a discussion regarding the Veteran's lay statements does not affect the probative value of the opinion, because the Board has determined that the Veteran's statements with respect to continuity of symptomatology are not credible. In addition, the history provided by the Veteran to the examiner did not support a continuity of symptomatology of a back disability since the injury or active military service. Therefore, the Board finds that the VA opinion in November 2011 is persuasive and probative as the examiner reviewed the record and provided a clear rationale for his opinion based on the credible evidence of record and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board recognizes that the Veteran provided his lay opinion that his low back disability is related his active military service. As noted above, lay persons can provide an account of observable symptoms, such as back pain. See Clyburn, 12 Vet. App. at 301; Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion on the etiology of herniated nucleus pulposus of the lumbar spine, lumbar degenerative joint disease/degenerative disc disease with radiculopathy, and/or failed back syndrome has no probative value because lay persons are not competent to offer such medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current low back disabilities and his military service. In conclusion, the evidence of record shows that there is no credible lay evidence of continuity of symptomatology since military service and the probative medical opinion provides evidence against the claim that his current back disability is related to his honorable period of active military service. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a low back disability. Accordingly, the Board concludes that service connection for a low back disability is not warranted. Right Leg Disability The Veteran contends that his right leg disability is related to an in-service injury to the right leg when he fell off a truck. He also indicates that his right leg disability is related to his low back disability. In assessing the Veteran's claim, the Board must determine whether the Veteran has a current diagnosis of the claimed disorder. The medical evidence of record shows that the Veteran has a current diagnosis of right leg neuropathy and failed back syndrome. Accordingly, the Board finds that the Veteran has a current diagnosis of a right leg disability. A review of the Veteran's available service treatment records shows that the Veteran did not complain of or receive treatment for a right leg condition after he fell from a truck in 1978. A January 1978 service treatment record shows that the Veteran denied any other injuries besides contusion on coccyx. Distal nerves were intact and there were no sensation or motor changes noted in the legs. Another January 1978 treatment record reveals that the Veteran did not have any neurological difficulties. There is no indication in the Veteran's available service treatment records that he had symptoms of a right leg disability in service to include as due to the injury to his coccyx. The first evidence of the Veteran reporting or seeking treatment for right leg pain is in June 2004, approximately 25 years after discharge from his honorable active duty service. The passage of many years between discharge from active service and the medical documentation of a claimed disability (i.e., approximately 25 years in this case) is a factor that weighs against a claim for service connection. See Maxson, 230 F.3d at 1333. Furthermore, a VA examiner in May 2010 provided the opinion that the Veteran's right lower extremity condition is more likely than not secondary to his spine disability. The examiner explained that it is fairly common condition that can develop in people who have had back surgery. They can develop scar tissue which will contract around a nerve root and mimic the same condition that they were having prior to the surgery as is the case with the Veteran. Thus, the medical examiner determined that the Veteran's right leg disability was not related to active military service. The Board observes that the Veteran reported that his current low back pain that radiates into the right lower extremity was the same problem that he had during military service and that he contends that his current right leg disability is related to his active military service, specifically the fall from a truck in 1978. As a lay person, the Veteran is competent to provide an account of observable symptoms, such as in this case that he experienced pain radiating from his low back to his right leg and that he currently experiences similar symptoms. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion whether a disability is related to an injury or disease in service has no probative value because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 792, 494-95 (1992). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current diagnosis right leg neuropathy and failed back syndrome and an injury to his coccyx during military service. As discussed above, the only competent medical evidence indicates that the Veteran's current right leg disability is related to his back and not military service. The evidence of record shows that the Veteran's current right leg disability is secondary to his spine condition. With respect to a service connection claim on a secondary basis, it is dependent upon a favorable outcome of the Veteran's low back claim, discussed above. One of the requirements of a secondary service connection claim is evidence of a service-connected disability. 38 C.F.R. § 3.310 (2012). As the underlying claim of entitlement to service connection for a low back disability is denied, the secondary service connection claim is rendered moot. There is no legal basis upon which to grant his claim of service connection for a right leg disability because his back disability has not been established as a service-connected disability. Accordingly, the issue of entitlement to service connection for a right leg disability as secondary to a back disability must be denied as a matter of law. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's current right leg disability is not related to active military service or a service-connected disability. Therefore, the Veteran's claim for entitlement to service connection for a right leg disability is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right leg disability to include secondary to a back disability is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs