Citation Nr: 1302102 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-00 374A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for an upper back disorder. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to service connection for a skin disorder. 5. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1971 to December 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The Veteran testified at a personal hearing before the undersigned sitting at the RO in June 2012, and a transcript of the hearing is of record. Although there are VA treatment reports dated through June 2012 in Virtual VA without a subsequent Supplemental Statement of the Case, these reports are cumulative of evidence previously on file. Consequently, remand of the case to the RO for review of these records is not required. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran does not have a low back disorder that is causally related to his active military service. 2. The Veteran does not have an upper back disorder that is causally related to his active military service. 3. The Veteran does not have a neck disorder that is causally related to his active military service. 4. The Veteran does not have a skin disorder that is causally related to his active military service. 5. The Veteran does not have headaches that are causally related to his active military service. CONCLUSIONS OF LAW 1. A low back disorder was not incurred during active service, nor may degenerative disease be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. An upper back disorder was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A neck disorder was not incurred during active military service, nor may degenerative disease be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. A skin disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. Headaches were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in July 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the July 2009 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. a VA evaluation with nexus opinion was obtained from the same VA evaluator in September 2009 and November 2011. 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). As noted below, the Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims file and physical examination findings. The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and statements, and provided a rationale for the opinion stated. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). It was contended at the June 2012 hearing that VA should obtain records prior to 1985 from Apple Valley and VA treatment records since November 2011, and the Board notes that a request for Apple Valley records beginning in January 1974 was made in July 2009 and VA treatment reports through June 2012 are of record. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his June 2012 personal hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the June 2012 travel board hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the undersigned, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). Each disability at issue was addressed, and the Veteran was asked to provide testimony on how each disorder was incurred. Analysis of the Claims The Veteran seeks service connection for disorders of the lower back, upper back, neck, and skin, as well as for headaches. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of degenerative disease, 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); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing 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"). The Veteran's service treatment reports reveal that he complained of sinus headaches in July 1972. He complained of headaches in January 1976; mild bronchitis and sinusitis were diagnosed. The Veteran complained in April 1976 of a back muscle spasm and of coughing up blood; the impression was of no disease process. The Veteran complained in March 1980 of a viral syndrome with vomiting, diarrhea, nausea, aching, dry cough, and stuffy nose. It was noted that there was no neurologic problem or neck aching more than anywhere else. The impression was generalized viremia. The Veteran complained on his October 1980 separation medical history report of swollen or painful joints and of sinusitis; it was noted that he had had a sprained left ankle one year earlier. Medical evaluation of the head, spine, and skin in October 1980 were noted to be normal. Private treatment reports on file, including from Apple Valley Medical Center, are dated from December 1984 to August 2008. The Veteran gave a one year history of back pain in April 1997. He noted constant headaches in May 1995. Cervical strain and headaches were reported in March 2001. An MRI of the cervical spine in March 2001 showed multilevel degenerative disc disease of C3-C7. Neck pain and headaches were reported in October 2001. The Veteran had headaches and sinus drainage in January 2005. He complained of a lower back problem in August 2008, where it was noted that he had done some recent heavy lifting. VA treatment reports dated from July 2009 to June 2012 are also on file. A July 2009 MRI of the lumbar spine showed chronic diskitis at L4-L5 and degenerative disc bulges at several levels. X-rays of the cervical spine in February 2011 showed moderate degenerative disc disease and osteophytosis involving C4-C7. The Veteran underwent several VA evaluations in September 2009, which included review of the claims files. He said that he was knocked over by heavy waves several times in service while on his assault boat. The examiner noted that the Veteran's current low back pain was due to L4-L5 discitis. According to the examiner, there was only one notation of the low back pain in service, no disorder on discharge evaluation, no post-service medical records until September 2008, and no nexus opinion to connect the Veteran's current low back disorder to service. The Veteran complained of chronic neck pain since service. Because the Veteran was unable to appear for X-rays of the cervical spine, no diagnosis was provided. The examiner concluded that it was not at least as likely as not that the Veteran's cervical spine condition was related to service because there was no in-service or post-service documentation of a neck condition and no nexus opinion in favor of the claim. The Veteran complained on VA evaluation in September 2009 that he had headaches due to his neck disorder. He said that his headaches began shortly after service discharge and that he now had constant headaches, which sometimes required him to miss work or come home early. The examiner concluded that it was not at least as likely as not that the Veteran's headaches were due to his military service because there was no evidence in service of a chronic headache disorder, including on discharge evaluation. The Veteran complained on VA skin evaluation in September 2009 of several boils/abscesses in service on his head and neck, which were drained. The examiner noted that there was medical evidence of a boil on the neck in May 1975, which was treated with antibiotics, opened, and drained; but that there was no post-service evidence of treatment for a skin infection. Skin examination did not show any boils or abscesses. The assessment was boil/abscess on the neck in service with no current infection. Added to the file in September 2011 is information on Assault Craft Unit One, which was the only assault craft unit in the Pacific Fleet. A VA Disability Benefits Questionnaire (DBQ) of the back and neck was obtained in November 2011 from the same examiner who saw the Veteran in September 2009. It was noted that the Veteran described having had little or no medical attention for low back pain after service discharge; he was hospitalized in September 2008 for L4-L5 discitis caused by strep viridans. According to the examiner, discitis is a serious acute infection of a spinal disc, usually the result of bacteria that is spread throughout the blood. The examiner concluded that discitis in 2008 would not be related to operating a landing craft in high surf and being knocked to the desk by waves in the 1970s or by the treatment noted in service for the low back in April 1976. The examiner noted in November 2011 that the only reference in service to the neck was in May 1980, which was related to viral problems and not a neck disorder, and that he denied neck pain at the time of discharge. The initial post-service report of neck pain was approximately 15 years after discharge. Consequently, the examiner concluded that it was not at least as likely as not that the Veteran's current degenerative disc disease of the cervical spine is the result of being knocked to the deck of a landing craft several times in service. The Veteran testified at his travel board hearing in June 2012 that he injured his low back, upper back, and neck, with resultant headaches, as a result of multiple assault landings in service; and that he had a skin disorder due to exposure to chemicals and paints in service. The above medical evidence does not show that any of the disabilities at issue is causally related to service. Although there is one reference to a low back problem in service, in April 1976, there were no low back complaints or findings on discharge evaluation in October 1980. The initial post-service notation of low back complaints was not until April 1997, when the Veteran reported a one year history. After review of the record and examination of the Veteran in September 2009, a VA physician concluded that it is less likely as not that the Veteran's current low back disorder of discitis is due to service since this condition, initially shown many years after service discharge, involves an infection of the spinal disc and is unrelated to musculoskeletal injury. With respect to the claim for an upper back disorder, there is no diagnosis of a thoracic spine disability order either in service or after service discharge. According to the November 2011 VA opinion, the notation in March 1980 of no neck aching indicated that the Veteran's illness was not related to a neck disorder, as it was actually related to a viral infection. The examiner noted that the initial post-service medical evidence of a neck problem was not until a number of years after service discharge. Based on the medical evidence, the examiner concluded that the Veteran's current neck disability is not at least as likely as not causally related to service. Although there are two reports of headaches in service, these are noted as the consequence of either sinusitis or respiratory disability. It was concluded by the VA examiner in September 2009, after review of the claims files and examination of the Veteran, that it is not at least as likely as not that any current headache disorder is due to service because there is no evidence of a chronic headache disorder in service, including on discharge evaluation in October 1980. Finally, the Board notes that service connection is also not warranted for a skin disorder because the neck boil in May 1975 was treated without recurrence. There was no other skin problem in service and the Veteran's skin was reported to be normal on discharge examination in October 1980. Moreover, it was noted on VA evaluation in September 2009 that the Veteran's skin was clear and that there were no post-service medical records showing treatment for a skin infection. The hearing testimony and lay statements from the Veteran have been taken into consideration in this decision. Although the Veteran is competent to report his subjective problems, he is not competent to report that he has low back, upper back, neck, or skin disability due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving etiology of these disorders. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the Veteran testified in June 2012 that he has had low back, upper back, and neck disability, as well as headaches, since he participated in multiple assault landings in service, the medical evidence does not support his contentions. He did not complain in service of any disability related to his service duties, and the only musculoskeletal problem noted on his October 1980 discharge medical history report involved the left ankle. The initial post-service evidence of a musculoskeletal problem was not until several years after service discharge. In fact, the Veteran indicated in April 1997 that he had a one year history of back pain. Even if the Veteran was exposed to chemicals and paints in service, the only skin problem in service, a boil, was treated in service and was not noted on discharge evaluation in October 1980. There is no post-service diagnosis of a chronic skin disorder. At the Veteran's June 2012 hearing, the Veteran's representative appears to be contending on page 4 of the transcript that the VA opinion in November 2011 against the claims is phrased as a double negative, which makes it a positive opinion. The Board does not agree. Although a finding that a disorder "is at least as likely as not due to service" is a finding in favor of a claim for service connection, a finding that a disorder "is not at least as likely as not due to service" is clearly an opinion against the claim. Because the Veteran is not service-connected for a back or neck disorder, service connection for headaches would not be warranted even if the Veteran's headaches are due to his back and neck problems, as he contends. Consequently, the Board does not find the Veteran's contention that he has had the disabilities at issue since service to be credible. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claims denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for an upper back disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for headaches is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs