Citation Nr: 1300968 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-38 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability, to include degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from October 1955 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for bilateral pes planus, low back pain, bilateral hearing loss disability, and tinnitus. In August 2011, the Veteran withdrew a request for a hearing before the Board which he had made in his September 2009 substantive appeal. In November 2011, the Board remanded the Veteran's case for further evidentiary development. A review of the record reveals that service connection for bilateral hearing loss disability and tinnitus was established in an October 2012 rating decision. Thus, as the benefits sought have been awarded in full, those issues are no longer before the Board. The case now returns to the Board following such development and is ready for disposition. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a current back disorder, which has been diagnosed as degenerative joint disease of the lumbar spine. 2. Even assuming the credibility of the Veteran's account of in-service back injury, the preponderance of the evidence weighs against finding that his current back disorder is causally or etiologically related to his period of active military service, to include any incident or event therein, or that it manifested to a compensable degree within one year of separation from active service. 3. The probative medical opinions of record do not attribute the Veteran's current back disorder to his period of active military service, to include any incident or event therein, or show that it manifested to a compensable degree within one year of discharge. Instead, the Veteran's back disorder has been attributed to the aging process. CONCLUSION OF LAW The Veteran's back disorder was not incurred in or aggravated by active military service nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in October 2008. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Because the Veteran was provided with proper notice with respect to his claim by way of the October 2008 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran and his representative were provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) are included in the record. In addition, post-service treatment records adequately identified as relevant to the claim have been submitted or otherwise obtained, to the extent possible, and are associated with the record. Pursuant to the Board's remand, additional VA treatment records were obtained and associated with the claims file. In addition, additional treatment records found in the Veteran's electronic folder through Virtual VA are essentially duplicative of evidence already contained in the physical claims file and considered by the RO. As regards private treatment records, pursuant to the Board's November 2011 remand, the RO requested and obtained records from Delran Chiropractic Physicians. After requesting records from Midland Memorial Hospital in March 2012, in June 2012 the provider informed the RO that other medical facilities within the hospital should have the Veteran's treatment records. Accordingly, in July 2012 the RO requested treatment records from Abell-Hanger Medical for treatment received in July 2004 and received a July 2004 report from the Muscular Dystrophy Association (MDA) Clinic. Furthermore, the Veteran was afforded with a VA spine examination in July 2010 and a VA DBQ (Disability Benefits Questionnaire) examination September 2012. Based on review of the claims folder and interview and evaluation of the Veteran, the examiners concluded that it was less likely as not that the Veteran's currently diagnosed back disorder was related to his active military service, as will be explained below. The opinions were supported by an adequate rationale and are deemed sufficient for the purpose of this adjudication. Neither the Veteran nor his representation throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). 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 the latter 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"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 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). In this case, the Veteran seeks entitlement to service connection for a back disorder. The Board initially notes that there is evidence of a current back disorder. A June 2007 private chiropractic treatment record reflects a diagnosis of lumbar spasms. When the Veteran underwent medical examination in connection with his claim in July 2010, the examiner diagnosed degenerative joint disease of the lumbar spine. Thus, as the evidentiary record clearly shows a current back disorder, the Board will now consider in-service incurrence, to include the Veteran's allegations of in-service back injury and continuity of back symptomatology since service. The Veteran's STRs include a December 1955 report which notes a complaint of a backache of one week's duration since being on Bivouac and sleeping on the cold ground. No previous backache or history of a back injury was noted. Examination of the Veteran's back was essentially negative. Full range of motion was present. X-ray examinations of the dorso-lumbar spine were negative and he was diagnosed with back complaints and returned to full duty. However, a March 1959 release from active duty examination reflects a normal clinical evaluation of the Veteran's spine. In his September 2008 claim, he contended that he had a back disorder since January 1956. A May 1988 United States Civil Service Commission Certificate of Medical Examination shows that on examination the Veteran's back was within normal limits. A June 2007 private chiropractic treatment record shows that the Veteran presented with a complaint of lower back pain with an onset of 4 days earlier after bending over to turn on water. He did not indicate any previous accidents or trauma and was diagnosed with lumbar spasms. The Veteran was afforded a VA spine examination in July 2010 at which time he presented with a history of low back pain since December 1955 when he injured his back on an obstacle course. He complained of persistent low back pain since that time. An X-ray examination indicated minimal degenerative changes with endplate spurring on all levels. MRI examination indicated mild degenerative joint disease (DJD) L1-S1 with endplate spurring and slight foraminal narrowing at L5-S1. The examiner diagnosed DJD of the lumbar spine which the examiner opined was less likely as not caused by or a result of one treatment for low back pain on active duty with no specific diagnosis. The rationale provided was that the Veteran demonstrated radiologic changes consistent with the aging process and had no evidence of prior trauma to the lumbar spine. The Veteran was afforded a VA DBQ back conditions examination in September 2012 at which time the examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness based on the rationale that he did have an episode of back pain in service, but an X-ray examination was negative and he was treated and returned to full duty in 1955. There was no additional documentation from 1959 until 2007. It was noted that a current MRI showed multilevel degenerative disc disease which is predominantly a disease of aging, although sometimes related to an injury. However, he had a normal X-ray examination post-trauma to the back. The examiner further opined that after 50 years it is impossible to differentiate an isolated incident as the cause of the Veteran's back condition versus the last 50 years of wear and tear. The examiner concluded that unless there are historical medical records over the years indentifying treatment for back pain since leaving service, there is less than a 50 percent probability that the Veteran's back disability is related to his service. On review of the evidence above, the Board finds the Veteran does not have a back disability that is etiologically related to service. The Veteran has been afforded two VA examinations in which the examiners, based on review of the evidence, stated a medical opinion against such an etiological relationship, and there is no contrary medical opinion of record. Further, there is no indication that degenerative changes became manifest to any degree during the first year after discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. Furthermore, the Veteran's lumbar spasms were not shown until more than 48 years after his discharge from active duty. Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F. 3d 133-(Fed. Cir. 2000). As it relates to the Veteran's competent account of having sustained injury to his back in service, there is no indication in the record that his account of back injury is not credible. However, the Board does note that the Veteran has provided inconsistent statements as it relates to his experience of symptomatology following the injury. In particular, the Board notes that the Veteran's current recollection of experiencing chronic back problems since his service is inconsistent with the STRs showing a complaint of back pain in December 1955 followed by the March 1959 release of active duty report showing that his spine was found to be normal. In the Board's opinion, the documents prepared contemporaneous to the Veteran's active service are more probative than the Veteran's current recollections concerning his back problems in service. The Board also observes that the Veteran's complaint of a recent onset of low back pain during private chiropractic care in June 2007 contradicts statements made on VA examination in June 2010 and VA DBQ examination in September 2012 during which he contended that he had experienced low back pain since his service. Moreover, the record includes July 2010 and September 2012 VA medical opinions which do not attribute the Veteran's current back disorder to his active service. Rather, the Veteran's current back disorder has been attributed to the aging process. The Board notes that each examiner provided a sound rationale in support of their conclusion and each has the requisite medical expertise to provide a competent medical opinion regarding the cause of the Veteran's current back disorder. Each examiner also had sufficient data on which to base their conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, as well as their own interview and examination of the Veteran. Thus, in summary, even assuming the credibility of the Veteran's account of having sustained injury to his back in service, the preponderance of the evidence weighs against the claim. The Veteran remained in service more than three years after the alleged injury and did not resume medical care until almost 48 years after service. He has also provided inconsistent accounts regarding the onset of his back pain when seeking treatment from medical providers. For these reasons, the Board does not find the Veteran's competent lay account regarding having suffered from back pain since the injury in service to be credible evidence and affords it no probative value. Furthermore, two VA medical examiners have opined that the Veteran's current back disorder is more likely than not related to the aging process, and their opinions are afforded far greater probative value than the Veteran's statement. Thus, the most probative evidence of record reveals the Veteran's current back disorder manifested many years after service and is attributable to the aging process. Therefore, the Board concludes that the Veteran is not entitled to service-connected compensation benefits for a back disorder, and the appeal is denied. ORDER Entitlement to service connection for a back disorder, to include degenerative disc disease of the lumbar spine, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs