Citation Nr: 1301810 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-10 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to January 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal, in part, from a May 2007 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board, in pertinent part, denied the Veteran's claim for service connection for a bilateral foot disability. Thereafter, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2012 Joint Motion for Partial Remand (Joint Motion), the Court vacated, in part, the Board's decision with respect to the denial of his claim for service connection for a bilateral foot disability. In the Joint Motion, the parties noted that the aspect of the January 2012 Board decision that denied service connection for a kidney condition and remanded service connection for a back disability were not disturbed. The matter of service connection for a bilateral foot disability 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. FINDING OF FACT A chronic back disability was not manifested in service; arthritis of the back was not manifested in the Veteran's first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current back disability is related to an event, injury, or disease in service. CONCLUSION OF LAW The Veteran does not have a back disability which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication. February and March 2006 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The March 2006 letter also informed him of degree of disability and effective date criteria. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The Veteran's available service treatment records (STRs) and pertinent postservice treatment records are associated with his claims file. Specifically, a June 1969 service induction examination report and a January 1971 statement of medical condition are the only STRs associated with his claims file. In December 2006, the RO made a Formal Finding as to the unavailability of the Veteran's STRs; any such records are presumed irretrievably lost. Therefore, VA has a heightened duty to assist the appellant in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In December 2006, the Veteran indicated that any relevant private treatment records were no longer available due to the death of the physician. He was afforded a VA examination in February 2012. The examination is adequate for rating purposes as the examiner expressed familiarity with the pertinent medical history, and conducted a thorough examination, noting all findings necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Accordingly, the Board will proceed to the merits of the Veteran's appeal. B. Legal Criteria, Factual Background, and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's available STRs are silent for complaints, findings, treatment, or diagnosis pertaining to a back disability. Postservice treatment records include an October 2002 VA ambulatory care report noting the Veteran's complaint of back pain. The instant claim for service connection for a back disability was filed in March 2005. He reported that he injured his back in-service during basic training, and received treatment for his back in the late 1990s. Postservice VA treatment records also include November 2005 x-rays of the lumbosacral spine which revealed degenerative changes at L4-L5, L5-S1 and S1-T12 disc spaces. Facet arthropathy was noted, and sclerotic changes at the sacroiliac joint were seen. Thereafter, VA treatment records list his active problems as including low back pain. An October 2007 ambulatory care report noted his complaint of back pain for two weeks. A November 2007 record noted his report that he fell and injured his back during basic training. A November 2008 primary care outpatient report noted his complaint of lower back pain after sneezing and pulling a muscle. In January 2012, the Board remanded this matter to provide the Veteran a VA examination to determine the nature and etiology of any current low back disability found to be present. He was afforded a VA examination in February 2012. On February 2012 VA examination, the Veteran reported that he fell off monkey bars in the service but that his back only hurt for a very short while and that he was back to full duty the following day. He denied any residuals from the fall for the rest of his active service or after service until the late 1980s or early 1990s, relating that his chronic back pain started at such time. Following service, he had many physical jobs including construction. Lumbar spine x-rays revealed multilevel degenerative discogenic disease of the lumbar spine, most prominently at the T12-L1 and L4-L5 levels, although appearing stable from November 2005 x-rays. The diagnosis was degenerative disc disease of the lumbar spine. After a review of the claims file and physical examination of the Veteran, the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted there was no objective evidence for any degenerative disc disease or arthritis during active service. At most, the minor injury caused a sprain or contusion. In addition, it was not until at least 10 years after service that the back pain started on a chronic basis, and it was not until the 1990s that arthritis and disc disease were found. The examiner further opined that the injury that he had during service was not significant enough to cause any bone or disc conditions, and the most likely causes of his current back condition are aging and his postservice occupations which were very physical in nature. In this case, there is no evidence that arthritis of the back was manifested in service or in the initial year following the Veteran's discharge from active duty. The available treatment records reflect that it was first diagnosed in November 2005, although, for the purposes of this appeal, the February 2012 VA examiner conceded that such was found as early as the 1990s. Nonetheless, service connection for arthritis of the low back, or the back in general, on the basis that it became manifest in service and persisted, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether or not in the absence of manifestation in service and/or postservice continuity of symptoms, the Veteran's back disability may nonetheless somehow otherwise be related to his service. He has not submitted any medical opinions relating his back disability to his service/events therein. The only competent (medical) evidence of record is the opinion of the February 2012 VA examiner. The VA examiner opined that it was less likely than not that his current back disability was incurred in or caused by the claimed in-service injury, event, or illness. The Board finds this opinion to be entitled to great probative weight as it took into account the complete factual record, and is by a medical professional who is competent to provide it, and is supported by rationale that cites to factual data. Because there is no competent evidence to the contrary, the Board finds the VA examiner's opinion persuasive. As to the Veteran's own opinion, any suggestion of continuity of symptomatology in this case is essentially rebutted by the Veteran's own statement during his February 2012 VA examination that there were no residuals following the in-service injury until the late 1980s, at least 15 years after service. To the extent the Veteran appears to be relating his current back disability to an injury in service, the Board finds such is not competent evidence. The matter of a nexus between a current back disability such as arthritis or degenerative disc disease and remote injury in service is (in the absence of continuity of symptomatology, which the Veteran does not appear to be alleging, and any allegations of such the Board finds not credible on the basis of his February 2012 VA examination statements refuting continuity of symptomatology) a question that is beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a back disability. Accordingly, the appeal in the matter must be denied. ORDER Service connection for a back disability is denied. REMAND As referenced above, the Court vacated the portion of the Board's January 2012 decision denying the Veteran's claim of service connection for a bilateral foot disability. The Court found that the Board provided an inadequate statement of reasons or bases as it did not address the Veteran's contentions of continuity of symptomatology of bilateral corns and calluses on his feet since active service, as opposed to continuity of treatment since active service. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). In addition, in light of the Veteran's contentions of continuity of symptomatology, the Court instructed the Board to re-consider whether the Veteran was entitled to a VA examination (as one had yet to be afforded to him). As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and meets the low threshold requirements that there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After further review of the claims file and re-consideration of the matter, the Board believes this low threshold requirement has been met in this case. This is particularly so where, as here, the Veteran's STRs have been lost or destroyed, and the VA has a heightened obligation to seek to secure alternate records or otherwise assist in developing the claim. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed bilateral foot disability. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current right and left foot disabilities. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion as to whether it is at least as likely as not that any diagnosed right and left foot disabilities are etiologically related to the Veteran's active service. The examiner should specifically acknowledge and discuss the Veteran's report that his disability first manifested during his active service, to include from wearing boots. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner's report should set forth all examination findings, and include a complete rationale for all opinions and conclusions reached, with specific references to the Veteran's claims file, including the (available) in-service and post-service medical records, and the Veteran's lay assertions. 2. The RO should then readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters 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