Citation Nr: 1301436 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-22 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a back disability, characterized as old mild T-3 superior end plate fracture and degenerative disc disease of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1968 to June 1970. He was awarded the Purple Heart and the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied entitlement to the benefit sought on appeal. The appellant appealed the decision to the Board, and the case was referred to the Board for appellate review. In November 2011, the Board remanded this claim for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard VA outpatient treatment records were obtained and associated with the claims file. The case has been returned to the Board and is ready for further review. FINDING OF FACT 1. The Veteran engaged in combat with the enemy and his assertions of experiencing low back pain and associated symptoms during his combat duties are consistent with the circumstances of his service. 2. There is insufficient evidence of a chronic low back disorder or of arthritis of the back within one year of service. There is probative medical evidence against a link between service and the current low back disorder, including any back injury that occurred during the Veteran's combat service. 3. The Veteran's lay assertions regarding continuity of symptomatology are not credible or probative in light of the other evidence of record. CONCLUSION OF LAW A back disability, characterized as old mild T-3 superior end plate fracture and degenerative disc disease of the thoracolumbar spine was not incurred in or aggravated by active duty; nor may degenerative disease be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in January 2008 with regard to the claim for service connection for a back disability. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the AOJ in February 2008. The duty to assist was also met in this case. The service treatment records (STR's) are in the claims file. All pertinent VA treatment records have been obtained and associated with the file. The Veteran's Virtual VA file has been reviewed by the Board. A VA examination was obtained in February 2008. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Service Connection The Veteran seeks service connection for a back disorder that he contends began in service. He claims that he has a current back disorder due to multiple helicopter jumps while serving in Vietnam as an infantryman. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In the case of degenerative arthritis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498, 507-08 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996); Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007). In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage, 10 Vet. App. at 498. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). The Evidence The Veteran's July 1968 service entrance examination report shows that he denied having a history of any back trouble, and on clinical evaluation, his spine was noted to be normal. During service in November 1968, the Veteran had an elevated temperature reading of 104 and complained of a cold, sore throat and cough. Pain in the right shoulder blade was noted. The impression was upper respiratory track infection. At separation in May 1970, the Veteran reported that he was currently in good health, and clinical evaluation of the spine was normal. A private treatment record dated in December 1970 found the Veteran's back to be normal on examination. When the Veteran was examined by VA in September 1982, there was no mention of any back complaints. VA outpatient records show that in November 2007, the Veteran complained of low back pain for at least three years. He noted no preceding trauma. The impression was, chronic low back pain. At a VA orthopedic consultation in December 2007, the Veteran reported having back pain for several years. He reported having pain in the upper back area in between the scapula as well as in the lower back bilaterally. The examiner noted chest x-rays from another physician and diagnosed degenerative joint disease of the thoracic and lumbosacral spine. The Veteran was examined by VA in February 2008. The claims file was reviewed. The Veteran reported that he has had no treatment until 2007. The diagnosis was, mild T3, age of this is undetermined. The examiner noted that the service treatment records were silent for any treatment of a back and that at separation the Veteran reported to be in good health. The examiner documented the VA treatment records noted above and stated that there is a period of discharge from service in 1970 to 2007 of 37 years with no chronological evidence of a back condition of any type. It was noted that there are no records to substantiate an ongoing back condition from the time of service. It was reported that the Veteran has mild osteoarthritis of the LS spine more likely due to simple age and body habitus related to osteoarthritis. The examiner noted that the mild T3 compression is age underterminate. The examiner indicated that acute compression fractures are associated with a severe degree of pain and there is no record in the service record that indicates an evaluation for any type of back condition. The examiner reported that it is impossible to determine when the mild T3 compression fracture occurred and that therefore it was the opinion of the examiner that the present mild degenerative changes of the LS spine and mild T3 compression fracture are less likely as not related to his military service. VA records show continuing treatment for back complaints into 2011. Discussion The Board finds the evidence is against a finding that service connection should be granted. First as noted above, a current disability is one of the requirements for service connection. In the present case, a current disorder has clearly been found. Degenerative joint diseased of the lumbar and thoracic spines was found in December 2007 and mild degenerative changes of the LS spine and mild T3 compression fracture was diagnosed in February 2008. The Veteran has alleged that he experienced low back pain during combat service in Vietnam, when he had multiple helicopter jumps. The Veteran is competent to indicate that he experienced low back pain during his military service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). Furthermore, the Veteran's DD Form 214 confirms his military occupational specialty (MOS) as light weapons infantryman. The Veteran's DD Form 214 also shows that the Veteran received the Purple Heart Medal and the Combat Infantryman Badge which is conclusive evidence of combat experience. As such, the Board concludes that the Veteran's lay contentions regarding experiencing back strain due to his duties during his service in Vietnam are to be afforded the combat presumption. See 38 U.S.C.A. § 1154(b). The Veteran's statements regarding in-service back pain associated with helicopter jumps are consistent with the nature of his combat service and he has presented satisfactory lay evidence that he experienced symptoms of low back strain during his combat service. Id. Given the evidence of combat related medals and a military occupational specialty (MOS) which is consistent with the nature of the incidents low back pain alleged, the Board concludes that the Veteran's has shown that he experienced low back pain during his duties during combat operations in Vietnam. However, section 1154(b) does not establish service connection for a combat Veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302, 304-05 (1998). "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." See Watson v. Brown, 4 Vet. App. 309, 314 (1993). As noted above, the Board has concluded that the Veteran has provided competent evidence of experiencing low back pain due to his combat service in Vietnam. The Veteran has also indicated a history of back pain from that time. However, the Veteran's credibility affects the weight to be given to his contentions, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, his complaint of pain in the right shoulder blade during service was attributed to an upper respiratory infection and his STRs are negative for any further complaint, treatment, or diagnosis of a back disorder. In fact, when he had his separation examination in May 1970, the Veteran denied any recurrent back pain or associated symptoms, and his spine was found to be normal upon objective clinical examination. In effect, the Veteran is arguing that the Board should ignore the statement he provided at the time of his May 1970 medical history, but that his current statements are a true representation of his medical history. However, since he was being discharged from service, he would have had no plausible reason not to report any low back symptoms at that time, especially given that he has alleged that his back has bothered him since the time of his combat duties in Vietnam. The Veteran's military service treatment records were generated with a view towards ascertaining the appellant's state of physical fitness at that time; they are akin to statements of diagnosis and treatment and are of increased probative value. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence, such as the medical treatment records, has greater probative value than reported history). Thus, his STRs, as a whole, provide evidence against a finding of a chronic residual low back disorder in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494 -97. Furthermore, post service, the evidence as a whole does not establish continuity of symptomatology of a low back disorder since service. 38 C.F.R. § 3.303(b). In making this determination, the Board acknowledges the Veteran's assertions regarding continuous low back pain since his discharge from service. The Board again acknowledges the Veteran is competent to report low back pain from the time of his in-service combat duties. Layno, 6 Vet. App. at 469; see also 38 C.F.R. §3.159(a)(2). Nevertheless, once evidence is determined to be competent, the Board must determine whether the evidence also is also credible. The former, the Court has held, is a legal concept, which is useful in 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, 10 Vet. App. at 74; see also Layno, supra. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony." Caluza v. Brown, 7 Vet. App. at 510-511. The Board emphasizes that personal interest may affect the credibility, but not the competency, of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Veteran's lay assertions regarding the in-service continuity of his low back pain are inconsistent with the objective findings of the military examiner and the Veteran's own reported history. He reported in November 2007 that his symptoms began three years prior. And in December 2007, he said he had back pain for several years. In this regard, as noted above, lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value. In fact, the first medical evidence of treatment for a low back disorder in the claims folder is from a VA medical treatment record dated in 2007, approximately 37 years after the Veteran's discharge from active duty service. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. The Board may, however, in the present case consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Id. at 1337. Furthermore, the Veteran's current statements, taken with his statements at the time of his separation from service provide a history of inconsistent statements regarding the history of his low back pain symptoms, also reducing his credibility. Finally, the Board notes the self-interested nature of the Veteran's current statements that his back problems began during service and continued to the present further reduces his credibility. See Cartright v. Derwinski, 2 Vet. App. at 25. In summary, the Veteran's lay assertions are less credible in light of these factors. Therefore, overall, in-service and post-service medical and lay evidence of record does not provide credible evidence of continuity of any in-service symptomatology. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 496-97. Likewise, since there is no objective indication of arthritis of the back within one year after service, the Veteran is not entitled to application of the relevant presumptive provisions. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A diagnosis of arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Finally, a competent and credible medical opinion of record provides probative evidence against a finding of any connection between the Veteran's current back disability and his period of active service. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Specifically, the February 2008 VA orthopedic examiner reviewed the Veteran's current disorder, his statements regarding his in-service injuries, and his post-service symptoms. However, the examiner concluded that his back disability is due to age related degeneration. Although the VA examination report reveals that the VA examiner discussed the Veteran's history of injury and treatment with the Veteran, the VA examiner did not corroborate the Veteran's lay assertions regarding earlier treatment or continuity of symptoms. In this vein, the Board has also determined, as discussed above, that the Veteran's lay assertions regarding continuity of symptoms are not credible. In short, this opinion was thorough, supported by an explanation based on a review of the claims folder, and supported by the credible objective evidence of record. The Board finds this opinion is entitled to great probative weight. There is no contrary medical opinion of record. The Board is cognizant of the Veteran's exemplary service to our country. Nonetheless, the Board emphasizes that although the Veteran is competent to report any symptoms relevant to his back disorder, he is not competent to render an opinion as to the medical etiology of his currently diagnosed lumbar spine osteoarthritis, degenerative joint disease, and degenerative disc disease, because diagnosing these particular disorders require medical training or expertise. See 38 C.F.R. § 3.159(a)(1), (2); Jandreau, 492 F.3d at 1377. The Board further emphasizes that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr, 21 Vet. App. at 308. Given the medical complexity of the Veteran's diagnoses, his statements with respect to a causal nexus are of little or no probative value. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disability, characterized as old mild T-3 superior end plate fracture and degenerative disc disease of the thoracolumbar spine is denied. ____________________________________________ KATHLEEN GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs