Citation Nr: 1300865 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-05 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from November 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board previously remanded this matter in August 2011. The Board finds that there has been substantial compliance with the August 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) FINDING OF FACT A chronic low back strain was not manifested in service; arthritis of the back was not manifested in the first postservice year; and a preponderance of the evidence is against a finding that the Veteran's current low back disability is related to his military service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2006. That letter fully addressed the requisite notice elements. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter was submitted to the Veteran prior to the August 2006 rating decision on appeal. To the extent there exists any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. Based on a review of the entire file, it is clear that the appellant and his representative have a full understanding and actual knowledge of the elements required to prevail on the claim. Moreover, neither the appellant nor his representative has raised allegations of prejudice resulting from any error on the part of VA. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and post-service VA and private treatment records have been associated with the claims folder. A VA examination was requested in the Board's August 2011 remand. The Board finds that the subsequent September 2011 examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). As such, the Board finds that there has been substantial compliance with the August 2011 Board remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). While the Veteran's representative argues that the September 2011 examination is inadequate because the examiner fails to provide a rationale for the conclusion that the back injury in service was acute and transitory, (see October 2012 informal hearing presentation), as described in further detail below, a thorough review of the examiner's medical opinion reveals that he fully supports his conclusion with a detailed explanation, using evidence in the record to support his opinion that the back injury in service was acute and transitory. In this regard, it is noted that the examiner reviewed the Veteran's medical history, including his lay testimony (as acknowledged in the October 2012 informal hearing presentation) concerning his back injury while on active duty, and performed an extensive medical examination. The Veteran's representative argues that "unless the examiner can, with certainty, state that slowed development of a back injury cannot occur when there has been clear indication of a lumbar injury in service-the Veteran's claim should be granted." The Veteran's representative has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. Such as, for example, an opinion that the Veteran's back injury in service was in a slowed development phase which then led to his current back disability. Nothing in the record demonstrates that the Veteran or his representative received any special training or acquired any medical expertise in evaluating and determining causal connections for spine conditions. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). The Board notes that in the recent case of Monzingo v. Shinseki, No.10-922, (Vet. App. Nov. 21, 2012) the Court held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file." Monzingo at 7 (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The Court instead has held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Id. The Board finds that the 2011 VA medical examination and opinion is adequate under this standard as the physician provided his judgment on the requested medical questions as well as the essential rationales for his opinions. 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). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection on the merits, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Competency of evidence differs from weight and credibility. The former 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"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran had active duty service from November 1968 to December 1970. Service treatment records show that the Veteran reported back pain. Service treatment records show that he reported gradual onset lumbosacral pain in February 1969. An impression of lumbosacral muscle spasm was noted. An x-ray report at that time noted four vertebrae present that had the configuration of the lumbar vertebrae and bony architecture otherwise within normal limits and joint spaces well preserved. In January 1970, the Veteran reported bilateral pain in the upper lumbar area since a mile run the previous day. Upon physical examination, there was mild paravertebral muscle spasm and no tenderness. Range of motion was decreased. Deep tendon reflexes were absent. An impression of lumbosacral strain was noted. A treatment record from Puerto Rico Medical Center, dated in July 1973, reflects that the Veteran had gross hemoturia, low back and flank pains. In September 1976, the Veteran filed a claim for service connection for a back condition. The Veteran had a VA examination for his back in December 1976. The examination report reflects that the Veteran reported recurring back pains since service. The diagnosis was "no disease found." A statement from a fellow servicemember, dated in May 1978, noted that he served with the Veteran in 1968 and 1969 and recalls the Veteran suffered an accident while running 175 yards carrying one of the recruits, was taken to the hospital, and thereafter convalesced for three weeks. Worker's compensation records dated in 1993 reflect that the Veteran was medically discharged with a disabilities of lumbosacral strain, left L5-S1 radiculopathy and herniated nucleus pulposus L5-S1. A July 1995 employment record noted that the Veteran worked as a bricklayer and was medically recommended to limit bending, lifting, kneeling, squatting and prolonged standing, sitting, or walking. VA outpatient treatment records dated in November 2004 reflect that the Veteran complained of chronic low back pain and limitation of movement with left leg numbness for many years. He reported that it had been worse for the last few years. A February 2005 worker's compensation record noted that the Veteran had worked as a bricklayer for 17 years and reported that he hurt his back. A physician certified that "the diagnosis of [] lumbar sprain [and] bilateral radiculopathy L4L5 . . . are related to the functions of his employment." It was further determined by the physician that mild disc bulge below L3 with narrowing spondylosis was unrelated and was of degenerative origin. A Social Security evaluation dated in April 2005 shows that the Veteran reported that he developed low back pain in 1990 while lifting a steel frame at work. He was told that he had a herniated disc, but the surgeon could not guarantee success so he refused operation. He returned to work later as a mason. He continued to have low back pain. He had not worked since May 2004. The Veteran reported that he had difficulty bending. His back pain was worse with effort, and it could be a 9/10. His left thigh was numb. An impression of chronic lumbar strain was noted. In May 2007, the Veteran testified at a hearing before a VA Decision Review Officer. The Veteran testified that he had back pain during training when he had to carry someone. He testified that he was treated in sick call. The Veteran had a VA examination in September 2011. The VA examiner indicated that the claims file was reviewed. The Veteran complained of lower back pain with a date of onset in 1969. He reported that he had back pain since a training exercise when he had to run 175 yards and carry a soldier on his back. He reported that he fell forward with the soldier on his back and had a loss of consciousness. He was taken to sick call and treated with pain medicines and taken to barracks. He reported that he had had lower back pain since then. Upon questioning, the Veteran also reported a work-related lower back injury in 1990, when he was lifting a metal frame. The examiner noted that the Veteran was seen on two different occasions during service with complaints of low back pain and was diagnosed with lumbar strain and lumbosacral muscle spasms. He had a lumbar x-ray in February 1969 which showed bony architecture and joint spaces well preserved. The Veteran had a VA compensation and pension examination in December 1976 and complained of recurring back pain, but physical examination was found to be normal and lumbar x-ray was normal. The Veteran was treated in Puerto Rico Medical Center emergency room in July 1973 for gross hematuria and accompanying low back pain and flank pain, and on physical examination, he was found with bilateral CVA tenderness. Impression was chronic glomerulonephritis. The examiner noted that there was also evidence of a neurological examination in April 2005 in which the Veteran reported that he injured his back in a work-related accident when he lifted a steel frame at work and developed low back pain. He was told he had a herniated disc. He later returned to work as a mason and continued to have low back pain. In May 2004, his low back pain worsened, and he had to go back to worker's compensation. His diagnosis for his lower back was lumbar sprain, chronic, radiculopathy, L5, left and bilateral S1 radiculopathy. He had a lumbar MRI in January 2005, which showed mild diffuse disc bulges and mild foraminal narrowing at L 3-4 and L 4-5 and L5-S1 narrowing of interspace with disk dessication and small marginal osteophytes. The examiner noted that the service treatment records show that the Veteran had a lower back injury in service, and it was most likely lumbar strain. The examiner opined that there is no evidence of a chronic strain in service since there are not multiple progress notes with lower back complaints while he was in the military. The physician also supported his conclusion that a chronic strain was not incurred in service when he noted that X-rays at the time showed normal intervertebral spaces and, further, that VA examination of the lumbar spine several years later, in 1976, was normal and X-rays taken in 1976 were also normal. The examiner opined that, "[w]ith the information seen in the claims folder and the service medical record, I believe this patient most likely had a lumbar strain when he was in the military, but the lumbar strain most likely was acute and transitory and left no residual." He later injured his lower back again and again had a lumbar strain and lumbar bulging discs by MRI. The examiner opined that "[t]he lumbar strain, bulging discs and clinical left L3 radiculopathy reported on today's diagnosis are less likely than not due to his military service and are most likely due to his lifting injury at his job in 1990." The examiner opined that the back pain noted on the July 1973 emergency room note was "most likely not due to a lower back problem but most likely associated to his kidneys since he was found with CV tenderness with a history of dark urine preceding that ER visit, and he was taken to the ER with hematuria." The examiner stated that "the diagnosis that day is not very clear, but I understand it to be chronic glomerulonephritis, which is not a condition of the back but can cause pain referred to the back." The Board has considered the Veteran's lay statements and testimony. In statements and in the VA examination in conjunction with his claim, the Veteran asserts that he has had symptoms of low back pain since service. The Veteran is competent to report back pain symptoms, as such symptoms require only his personal knowledge of what comes through his senses. Layno, 6 Vet. App. at 470; Barr, supra. (2007). However, to the extent that by his statements the Veteran seeks to establish service connection for his back based on continuity of symptoms from an injury in service (see 38 C.F.R. § 3.303(c)), his account lacks credibility. 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"); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). First, any account reporting continuous manifestation of back symptoms since service is self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). Second, such statements conflict with his April 2005 reports to a physician in connection with evaluation for entitlement to SSA benefits that he developed low back pain in 1990 after a work injury. Given this inconsistency, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility. Finally, his statements asserting continuity conflict with the medical evidence, including the 1976 VA examination, which indicated that objectively his low back was normal several years after service. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In addition, there is no evidence that arthritis of the low back was manifested within a year following the Veteran's discharge from active duty, so service connection for lumbar degenerative arthritis on a presumptive basis is not warranted. Regarding the issue of a medical nexus, the Board notes that the preponderance of the evidence is against the claim. Both the February 2005 physician who assessed the Veteran in connection with a worker's compensation claim and the 2011 VA examiner concluded that his current low back disability is most likely related to his post-service employment. The 2011 VA examiner also specifically stated that his current back disability was less likely than not due to service. The 2011 VA medical opinion in particular has substantial probative value as it is based on review of the evidentiary record; reflects familiarity with the factual evidence and the Veteran's assertions; and is accompanied by a clear explanation of rationale. Further, there is no medical evidence to the contrary. The only other evidence of record supporting the Veteran's claim is his own opinion, as indicated in his hearing testimony, relating his current back disability disorder to his back complaints in service. However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). For the reasons set forth above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs