Citation Nr: 1300575 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-31 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back condition. 2. Entitlement to service connection for a bilateral leg condition, to include as secondary to a low back condition (bilateral leg condition). 3. Entitlement to service connection for a bilateral hand condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969, in the Coast Guard. He thereafter served various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Coast Guard Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the relief sought. The issue of entitlement to a bilateral hand condition 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. FINDINGS OF FACT 1. Service treatment records are silent for any complaints of, treatment for, or diagnosis of any lower back, or bilateral leg condition. 2. The Veteran first complained of low back pain and radiculopathic symptoms in 2004, almost 37 years after he asserts he suffered his original back injury. 3. The probative service, VA, and private treatment records fail to relate the Veteran's current lower back condition to service. 4. The Veteran does not have a bilateral leg condition, beyond the radiculopathic symptoms arising from his current low back disability. 5. The probative service, VA, and private treatment records fail to relate a bilateral leg condition to service, or to a service-connected disability. CONCLUSION OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a bilateral leg condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a letter issued in April 2008, prior to the initial adjudication his claim. This letter advised the Veteran of the information VA would obtain, the information he was responsible for obtaining, the criteria for establishing service connection, and how VA determines both effective dates and disability ratings. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, as have the private treatment records identified as relevant. While no VA examinations were provided with respect to the issues decided herein, no credible evidence has been obtained to suggest that any of these conditions are in anyway associated with the Veteran's time in military service, and therefore, no duty to provide an examination has been triggered. As such, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Disability which is proximately due to, or aggravated by a service connected disability, also may be service connected. 38 C.F.R. § 3.310. The Veteran asserts that in 1967 he injured his back as the result of jumping from a wharf to a boat; he noted that he heard a "crack" in his back and "[t]hree days later for at least six months [he] could not ride in a car very long or finish a meal at the dining table." See Claim Petition and Request for Disability, dated, March 2008. He further asserts that since that time he has been prescribed multiple medications for the resulting symptoms Id. As an initial matter, the Board notes that the evidence of record sufficiently establishes the Veteran's current diagnosis of degenerative disk disease accompanied with low back pain with occasional pain and numbness in the distribution of both sciatic nerves, and L5-S1 disk bulge. The determinative issue is whether this diagnosis is related to military service. The Veteran's service treatment records fail to show any treatment for, or diagnosis of, any back or leg complaints. In addition, no abnormalities of the spine or lower extremities were found at his service separation examination from active duty in July 1969, or at his July 1971, February 1975, January 1985, or January 1986 reserve duty examinations. Additionally, ACDUTRA statements from 1971, 1972, 1975, 1976, and 1977 indicate that the Veteran certified that there were no changes in his physical condition since any of his prior physical examinations, and no remarks were made to the contrary. Records from Kaiser Permanente show that in September 2004, the Veteran had complained of chronic lower extremity radiculopathic symptoms; he reported the onset of his symptoms began around the January 2004 timeframe. An October 2004 MRI showed a mild decrease in T2 signal in the intervertebral disk L3-4-5, and especially in 5-S1. See October 2004 MRI Report. However, no diagnosis of bilateral lower extremity radiculopathy was provided, and no opinion regarding the etiology of the Veteran's symptomatology was included in the report. Id. The Veteran complained of chronic low back pain in November 2004. He reported that since his purported injury in service, he experienced intermittent back pain and associated "bilateral symptoms in his legs" that had progressively worsened. In September 2005, he was diagnosed with low back pain, and noted to have occasional pain and numbness of both sciatic nerves. In February 2005, he was diagnosed with L4/L5/S1 degenerative disk disease. Turning to first to the Veteran's claim seeking service connection for a low back condition, there is no record of the Veteran injuring himself in service. He completed multiple reports of medical histories in service, and each medical examination that followed was negative for any indication of spinal or lower extremity abnormalities. He did not complain of low back pain until 2004; although he was diagnosed with degenerative disk disease in February 2006, no etiological opinion has been provided. Moreover, he has not offered a description of his symptoms since the purported injury that would provide a basis for finding continuity of symptomatology since service. Significantly, there is a thirty-seven year gap in the record between his reported injury in-service, and complaints of low back pain. Thus, the Veteran's degenerative disk disease manifested many years after service. See Maxson v. Gober, 230 F.3d 1330 (2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The private treatment of record also does not include any medical opinions or notations suggesting a link between the Veteran's degenerative joint disease and service. The Board acknowledges its consideration of the lay evidence of record, including the Veteran's report that his current low back condition began in service when he sustained a back injury. The Board further notes that the Veteran is competent to report the onset of his low back condition. See Layno v. Brown, 6. Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, the Veteran's service treatment records contradict his report of sustaining a back injury during service and experiencing subsequent back pain. To the extent that the Veteran has reported experiencing on-going back pain since the professed in-service injury, the Board finds that the Veteran's assertions are not credible, as his multiple reservist physical examinations and medical history reports reflect that he neither demonstrated nor reported any back impairment in service. The Board also specifically acknowledges that the Veteran is competent to report his receiving treatment for his condition. Indeed, the Veteran indicates that since his in-service injury he has been prescribed medications to treat his back and radiculopathic symptoms. See March 2008 "Claim Petition and Request for Disability." He also notes that a record reflects he reported using a back brace and support in service. (In a January 1985 Report of Medical History, the Veteran indicated he wore a brace or back support, but he denied this in 1975 and in January 1986 records.) Significantly, in his January 1986 report of medical history, the Veteran specifically denied any history of recurrent back pain, and stated that "Im in good health, + no medications." This expressly contradicts his statement made in his March 2008 "Claim Petition and Request for Disability" where he stated he had been prescribed medications since his in-service injury. Thus, the Board finds the Veteran is not an accurate historian, and the medical history he has provided is not probative. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). Additionally, the Veteran has not presented any evidence which demonstrates he has any special education or training which makes him qualified to diagnose a medical disorder. 38 C.F.R. § 3.159 (2012). His statements linking his current low back condition to service cannot be considered competent medical evidence of a link between service and his currently diagnosed degenerative disc disease. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). What is more, the competent medical evidence of records does not link the current low back condition to any incident in service. The Board has concluded the length of time between his purported injury with no diagnosis of any chronic low back condition in service or subsequent complaints in service, combined with a period of nearly forty years between the purported in-service injury and the first post service symptoms documented in around 2004, does not provide evidence of continuity of symptomatology to support a finding that a chronic low back condition began in service. Accordingly, service connection for a low back disability is denied. Turning next to the Veteran's service connection claim for a bilateral leg condition, the Board notes that the service treatment records fail to reflect any treatment for suspected radiculopathy or any related diagnosis in service. Post-service treatment records do not support a finding of continuity of symptomatology. Indeed, the Veteran did not begin experiencing radiculopathic symptoms until January 2004, nearly forty years after his reported in-service injury, and no probative evidence links the symptoms to service. As it relates to the Veteran's contention that his bilateral lower extremity radiculopathy is secondary to his diagnosed degenerative disk disease, as his back condition is not service connected, this does not provide a basis to award benefits. The Board expressly acknowledges its consideration of the lay evidence of record, including the Veteran's report that his bilateral leg condition began in service when he sustained a back injury. The Board further notes that the Veteran is competent to report the onset of his bilateral leg condition. See Layno, supra. However, the Veteran's service treatment records do not support this history. Additionally, the record reflects the Veteran first began experiencing numbness and tingling symptoms in January 2004, many years after the reported in-service injury. To the extent that the Veteran has reported experiencing on-going bilateral symptoms in his legs, the Board finds that the Veteran's assertions are not credible, as his multiple reservist physical examinations and medical history reports reflect that the Veteran neither demonstrated nor reported any bilateral leg condition, and no competent medical evidence of records links his current bilateral leg condition to any incident in service. In sum, the preponderance of the evidence is against the claim for service connection for a low back or bilateral leg condition. ORDER Service connection for a back condition is denied. Service connection for a bilateral leg condition is denied. REMAND Regarding the hand disability claim, the Veteran's contentions only appear to relate to the right hand. However, as the RO addressed a disability effecting both hands, the Board will continue the matter as a bilateral hand disability. The Veteran contends that he developed a right hand disability as a result of his use of photo-chemicals during service. (His military occupational specialty was as a photographer's mate.) While this occupational specialty would seem to likely result in exposure to chemicals used in photography during service, the record also indicates that the Veteran's civilian career was in a photography shop. That career would seem to equally as likely result in his exposure to such chemicals. This raises the question of whether it was the Veteran's military exposure or non-military exposure that resulted in the claimed condition. A medical examination and opinion will be sought to address this question. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to describe the frequency of non-military exposure to photo-chemicals he would have had working in photography during his life, as well as the frequency of any exposure to photo-chemicals he would have had while serving in the Coast Guard, or on the periods of duty he had in the Coast Guard Reserves. 2. The RO should contact the Veteran and ask him to identify any additional sources of treatment for the claimed hand condition. He is asked to provide, or authorize VA to obtain, any and all non-duplicative treatment records pertaining to this disability. All efforts to obtain any and all identified records should be fully documented in the claims file. 3. Then, notify the Veteran that he may submit lay statements from himself as well as from individuals who have first-hand knowledge of the onset and continuity of the symptoms of his claimed disability. He should be provided an appropriate amount of time to submit this lay evidence. 4. After associating any additional evidence with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed disability. The examiner should opine as to: a. whether the Veteran has current disability of the right or left hand that is at least as likely as not the result of exposure to chemicals used in photography; and, b. if so, whether it is at least as likely as not the condition is due to such exposure as would have occurred during a period of service, (versus in any non-military employment). The claims folder should be reviewed, and such review should be reflected in the report provided. A complete rationale for any opinion expressed should also be provided. In offering this impressions, the Veteran's reports of his history should be discussed. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included, to include a recitation of the missing facts necessary to render a non-speculative opinion. 4. Next, the claim should be re-adjudicated. If it remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given appropriate time to respond before the case is returned to the Board. 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs