Citation Nr: 1301680 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-12 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to October 1987 with additional service in the United States Army National Guard from May 1, to May 9, 1992. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran testified at a December 2010 travel Board hearing; the hearing transcript has been associated with the claims file. Board remanded the case to the RO for further development in February 2011 and April 2012. All requested development has been completed and the case is once again before the Board. FINDINGS OF FACT 1. The Veteran reported treatment for a lumbar spine injury in service. 2. Lumbar spine symptoms have been continuous since service separation. 3. Degenerative joint disease of the lumbar spine is etiologically related service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claim for service connection. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946 develops certain chronic diseases, such arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal the Board must also 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). Competency of evidence differs from weight and credibility. Competency 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but 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 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran contends that he injured his back in service requiring treatment, that back pain was chronic in service, and that his current low back disability is related to the in-service injury. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that currently diagnosed lumbar spine degenerative joint disease was incurred in service. The Veteran reported, during a December 2010 Board hearing, that he injured his back in 1981 when a box of ammunition fell on him. He reported that he was hospitalized for three days in Germany, and that he was treated with pain pills. He reported that he continued to seek treatment for his back in service and described having a pinched nerve. The Veteran also reported receiving treatment for his back at the Antelope Valley Hospital after service separation in 1987 In this case, with the exception of an August 1988 Army National Guard enlistment examination and some dental records, service treatment records are unavailable. The Board notes that the RO and the Appeals Management Center have made several attempts to obtain service treatment records and National Guard service treatment records; however, based on negative responses from the National Personnel Records Center (NPRC) in June 2007 and January 2008, and the California Army National Guard in July 2011 and October 2011, the Board finds that such records either do not exist or further efforts to obtain those records would be futile. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). In cases where the Veteran's service treatment records are unavailable through no fault of her own, there is a "heightened duty" to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). The Board, accordingly, remanded the appeal in April 2012 for a VA examination to assist in determining, based on the available evidence of record, if the Veteran's currently diagnosed low back disability is etiologically related to his reported in-service back injury. A June 2012 VA examination and opinion are of record, and the Board finds that the evidence of record is adequate for the adjudication of the Veteran's claim. An August 1988 Army National Guard enlistment examination, report of medical history, shows that the Veteran reported a history of recurrent back pain. Additionally, the examiner's handwritten note on the enlistment examination report indicated that the Veteran was being treated with codeine for minor back strain associated with heavy lifting on the job at the time of the examination (the handwriting is not clearly legible). This examination report was dated less than one year after the Veteran's October 1987 separation from service. February 1998 VA treatment records show that the Veteran was seen for chronic low back pain, reportedly present since discharge from the military in 1987. In conjunction with his treatment, the Veteran reported having an injury to the back while on active duty, but not recently. February 1998 VA x-rays of the lumbar spine revealed no acute abnormality, with L5-S1 disc space narrowing, probably chronic. VA and SSA medical records reflect some continuing complaints related to back pain in 2001, 2007, and 2009. VA x-rays dated in May 2007 reveal current degenerative disc disease of the fifth lumbar intervetebral space, noted to be severe in degree, with osteoarthritc changes. The Board finds that the Veteran's lay testimony is only partially credible in this case. While the Veteran identified back treatment at the Antelope Valley Hospital in 1987 during the December 2010 Board hearing, in an authorization and consent form for the release of those records, which was received pursuant to the Board's December 2011 remand for those records, the Veteran only identified treatment for chest and back pain at the Antelope Valley Hospital from 1995 to 1996. The Board finds it unlikely that the Veteran would have received treatment for his back at the Antelope Valley Hospital shortly after service in 1987, and not identify such treatment in his authorization and consent form. Additionally, medical records received from Antelope Valley Hospital were dated in 1992, appear to include all records for the Veteran held by the hospital, and do not reflect any treatment for the back. The Board finds that due to discrepancies in the identified treatment dates and the lack of back treatment shown in the treatment records obtained, that the Veteran has not provided a credible or accurate treatment history. The Board finds, however, that the Veteran's report of treatment for a back disability in service is credible because tends to be supported by August 1988 Army National Guard enlistment examination which notes treatment for a history of back pain within one year of the Veteran's separation from service. The February 1998 report of back pain due to a back injury in service, which was made as a part of VA treatment received prior to the Veteran's present claim for compensation, also tends to support the credibility of the Veteran's report as to injuring his back in service. Resolving the benefit of the doubt in favor of the Veteran on that issue, the Board finds that the Veteran has provided credible lay evidence of a low back injury in service and a history back pain since service. The Veteran was afforded a VA examination in June 2012 to assist in determining whether a diagnosed lumbar spine disability is etiologically related to the identified in-service injury, with a history of back pain noted shortly after service. A June 2012 report of contact shows that during a telephone conversation, the Veteran asserted that the June 2012 VA examination was inadequate because of the short duration of the examination. Upon reviewing the examination report, the Board finds that it is adequate for identifying a current diagnosis of lumbar spine degenerative joint disease based on clinical examination and x-ray evidence, and the opinion provided, which was based on a review of relevant evidence of record, is adequate and notably weighs in favor of the Veteran's claim. The June 2012 VA examiner opined that degenerative joint disease of the lumbar spine was at least as likely as not caused by or a result of a low back injury in service. In providing this opinion, the VA examiner considered the Veteran's lay statement with respect to injuring his back in service, and reasoned that even though service treatment records were not available, the National Guard entrance examination showed the Veteran had chronic low back pain and a chronic low back condition was also documented in 1998 notes from the Tampa VA hospital. The examiner reasoned that injury to the low back can cause changes later on in life. The Board finds that the VA opinion provides competent, credible, and probative evidence of a nexus between current lumbar spine degenerative joint disease and an in-service back injury. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has provided competent, credible, and probative lay evidence showing a back injury in service. Additionally, the weight of the evidence, lay and medical, shows that the Veteran had lumbar spine symptoms noted shortly after service separation, and establishes a nexus between currently diagnosed lumbar spine degenerative joint disease and the in-service back injury. Resolving reasonable doubt in the Veteran's favor, the Board finds that degenerative joint disease of the lumbar spine is related to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for lumbar spine degenerative joint disease is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs