Citation Nr: 1302364 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 05-21 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to January 1979 and from October 1979 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's request to reopen a previously denied claim for service connection for a low back disability. In a December 2007 decision, the Board reopened the Veteran's claim and remanded it for further development. In a subsequent August 2008 decision, the Board denied the Veteran's claim on the merits. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2011 decision, the Court vacated the Board's August 2008 decision and remanded the appeal for further action. In January 2012, the Board remanded the Veteran's claim for further development consistent with the Court's decision. That development has now been completed, and the case returns to the Board for additional review. The Veteran's Virtual VA file was also reviewed as part of his appeal. FINDING OF FACT The Veteran's current low back disability is not etiologically related to service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in August 2004 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The Veteran's service treatment records, private treatment records, VA treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the claims file. The Veteran was also afforded VA examinations with respect to his claim. 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). In particular, the Court's January 2011 decision concluded that a February 2008 VA examination obtained in this case was inadequate. The Board has corrected this error by remanding the claim for a new examination, which was conducted in March 2012. This examination is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion as to the etiology of the Veteran's claimed low back disability. Notably, the examiner did not specify a particular standard she applied in reaching her conclusion. However, this does not render the opinion inadequate. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that the benefit of the doubt doctrine is a legal construct to be applied by VA adjudicators when the evidence is approximately balanced, not by a medical professional in the rendering of medical opinions). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. It 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). 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 evidence, the Board must then determine its credibility and 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 at 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"). Evidence The Veteran underwent an enlistment examination in September 1978. No relevant abnormalities were noted. In June 1980, the Veteran complained of low back pain. However, no physical findings were present. In November 1980, the Veteran complained of low back pain. He denied any recent trauma. He was diagnosed with a sacroiliac strain. In February 1981, the Veteran sought treatment for low back pain following 3 falls in icy conditions. He was diagnosed with a mild sprain. In March 1981, the Veteran injured his back while playing football. A separate entry noted the Veteran had been "thrown down." X-rays were negative. He was diagnosed with a contusion to the lumbar area. A March 1981 separation examination was normal, and the Veteran denied a history of recurrent back pain in an accompanying medical history report. The Veteran was involved in a motor vehicle accident in March 1986, though no specific low back injury or complaints were noted. Private treatment records dated May 1987 show the Veteran reported injuring his back during a fall at work. A myelogram showed normal findings. The Veteran was diagnosed with nonspecific acute lumbar pain. Additional records dated August 1987 show the Veteran reinjured his back while playing tennis. He was diagnosed with recurrent lumbar strain. The Veteran was involved in motor vehicle accidents in October 1992 and September 1993, though no specific low back complaints were noted. However, records dated May 1994 show the Veteran was involved in a motor vehicle accident in March 1994 and complained of low back pain. He was diagnosed with lumbosacral sprain and strain with myofasciitis and neuralgia. He was also diagnosed with lumbosacral segmental dysfunction. The Veteran again complained of severe low back pain in July 1995. The Veteran underwent a VA examination in October 1995. He reported initially developing low back pain during service. He described an incident in which he jumped over a ditch while carrying a heavy ruck sack. He fell on his feet with his back hyperextended. He had experienced progressive low back pain since that time. The examiner diagnosed mechanical low back pain. An opinion on etiology was not provided. The Veteran testified at an RO hearing in April 1996. Between the time of his separation examination in March 1981 and his discharge from service in August 1981, he was put on light duty due to his back. He stated that he did not seek treatment for his back after service because he was not working at the time and did not have money for treatment. He treated his condition with over-the-counter medication, heat, and a back brace. After service, he also injured his back while working at a glass company, but this was in a different area than the injuries that occurred in service. In July 1996 and August 2002 written statements, the Veteran reported having back pain since 1979 or 1980. He also made similar reports to his VA and private physicians beginning in April 1999. Private treatment records dated July 2001 show the Veteran fell down some stairs and injured his back. He was diagnosed with a strain and spasms. VA treatment records dated December 2003 show the Veteran again fell down some stairs and injured his back. The Veteran submitted his own written statement, and statements from family and acquaintances, in July 2006. Collectively, these statements noted that the Veteran did not have a back disability prior to his entry into service. However, shortly after his discharge, he had problems with back pain, which led to a restriction of his activities and difficulty maintaining employment. VA treatment records dated August 2006 show the Veteran reported experiencing back pain since 1981, when he injured himself while swinging across a ravine. The Veteran underwent a VA examination in February 2008. The claims file was reviewed by the examiner, who noted several entries of back pain or injury in the Veteran's service treatment records. The examiner diagnosed degenerative disc disease of the lumbar spine, but was not able to implicate or connect this current condition to the Veteran's incidents in service without resorting to unfounded speculation. The Veteran submitted a statement in October 2011 from a former supervisor, who stated that the Veteran was employed as an armed guard at a security company for 2 months in 1982. He had difficulties with his back during this period and had to be released from employment. The Veteran was afforded another VA examination in March 2012. The examiner reviewed the claims file, obtained a history from the Veteran, and conducted a physical examination. Based on these findings, she diagnosed the Veteran with degenerative disc disease of the lumbar spine, right sacroiliac joint sclerosis, and chronic thoracic spine arthralgia. However, she concluded that this condition was not caused by or a result of diagnosed lumbar strain in service. She noted that while the Veteran was treated in service, x-rays as late as 1987 were normal. However, he started having increased back pain following several motor vehicle accidents, and subsequent x-rays in 2002 showed degenerative disease at L5-S1. He had a fusion of L5-S1 in 2004. She stated that if the Veteran's current back condition was caused by service, x-rays and other diagnostic tests would have shown degenerative changes of the lumbar spine. Analysis The Board finds that service connection for a low back disability is not warranted. The evidence reflects a current low back condition, and the Veteran was treated in service for low back injuries and symptoms. However, the overall weight of the evidence is against a finding that the current condition is etiologically related to service. The March 2012 VA examiner concluded that the Veteran's current conditions were not related to service. This opinion was based on a review of the claims file, a history from the Veteran, and a physical examination. The conclusion reached by the examiner was supported by a clear rationale. Namely, if the Veteran's current back condition was caused by service, x-rays and other diagnostic tests would have shown degenerative changes of the lumbar spine earlier than is indicated by the record. There is no competent medical opinion to refute this conclusion or to otherwise suggest that the Veteran's current low back disability is related to service. Notably, the February 2008 VA examiner could not opine on the etiology of the Veteran's low back condition without resorting to speculation. Inconclusive statements from doctors and examiners cannot be used to rule out a correlation between a current disorder and the Veteran's military service or service-connected disability. Bloom v. West, 12 Vet. App. 185 (1999) (holding that speculative medical opinions are inadequate for rating purposes). However, where the medical professional cannot provide an opinion without resort to speculation, the statement provides neither positive nor negative support for service connection. Fagan v. Shinseki, 573 F.3d 1282, 1289-90 (Fed. Cir. 2009). The Board has also considered the Veteran's own statements, as well as those of other lay witnesses, in evaluating his claim. The Board acknowledges that the Veteran and other lay witnesses are competent to provide evidence of their own experiences and observations, including reports of the Veteran's low back pain and injuries. However, these witnesses have not been shown to have the necessary expertise or knowledge to offer competent opinions regarding the etiology of complex conditions such as degenerative disc disease, sclerosis, and arthralgia. Therefore, to the extent that the Veteran and others have asserted an etiological link between his current condition and service, those statements are not competent. As noted above, however, establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d at 1167; see Caluza v. Brown, 7 Vet. App. at 506, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In this case, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, supra; see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). As noted above, back pain is the type of symptom that the Veteran and other lay witnesses are competent to describe. However, even where a veteran has asserted continuity of symptomatology since service, the Court has held that he or she is not necessarily competent to establish a link between the continuous symptomatology and a current underlying condition. See McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). This principle is particularly relevant in this present case. Since his discharge from service, the Veteran has been involved in four documented motor vehicle accidents, including one which specifically resulted in low back pain. He also injured his back three times in falls, and sustained another injury while playing tennis. When this evidence is viewed collectively with the March 2012 VA examiner's opinion regarding normal x-rays through 1987 and subsequent findings of degenerative changes, the lay statements regarding continuity of symptomatology, alone, do not establish that current symptoms are attributable to the symptoms documented during service. Moreover, the Veteran reported experiencing back pain since 1979 or 1980 but did not seek treatment after service due to financial concerns. However, the Veteran's separation examination was normal, and he denied a history of recurrent back pain. He also did not report a history of low back pain when he was treated in May 1987 following a work injury. In fact, despite being treated for back pain several times since his discharge, the Veteran did not report a history of continuous back pain since service until his 1995 VA examination, after his initial claim for compensation was filed. These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds the assertions of continuous symptomatology to be less credible than the records generated during and after separation from service. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of any reports of continuous back symptoms prior to the filing of a claim for compensation has a direct bearing on the credibility of the evidence of continuity. The preponderance of the evidence is against finding that the Veteran has a low back disability etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a low back disability is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs