Citation Nr: 1302998 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 09-18 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder, claimed as residuals of a lower back injury at L3, L5. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from March 1957 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge in February 2012. A transcript of the hearing has been reviewed and is of record. In May 2012, this case was remanded by the Board for further development and is now ready for disposition. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran experienced a single incident of low back complaints during service in 1959, with no chronic residuals noted in the treatment records. 2. The Veteran's low back symptoms have not been continuous since service and his low back disorder is not etiologically related to his in-service back complaint in service; rather, his low back disorder has been related to post-service on-the-job injuries. CONCLUSION OF LAW A low back disorder, claimed as residuals of a lower back injury at L3, L5, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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 disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that while in service in 1958, he injured his back and his groin unloading large boxes from pallets. He indicated that he underwent surgery on his groin as a result of the injury. He states that his current low back disorder is related to his in-service back injury. A review of the service treatment records reveal that the Veteran was hospitalized in January 1958 to undergo a hydrocelectomy after he noticed swelling in his scrotum. There was no report of back pain at that time and no indication that the scrotal complaints were related to trauma. In August 1959, he complained of right-sided, low back pain. The in-service examination did not reflect that it was related to an injury and the examiner noted full motion to the back, but pain in flexion. There was no diagnosis made. There is no further evidence of complaints or treatment for low back pain during the remainder of the Veteran's service. In fact, approximately two weeks after he sought treatment for the incident of low back pain, he returned to the clinic with complaints of dermatitis but made no comment at all about his low back. In the December 1959 Report of Medical History, he self-reported no swollen or painful joints, no arthritis or rheumatism, and no bone, joint, or other deformity. He further denied any other illness or injury. His service separation examination in December 1959 reflected a normal clinical evaluation of his spine. Therefore, service records do not show a chronic low back disorder at the time of discharge. Next, post-service evidence does not reflect low back symptomatology for more than a decade after service discharge. Specifically, in a September 2007 letter, the Veteran's retired private physician, Dr. L, indicated that he treated the Veteran in July 1970 for low back pain "from an injury [the Veteran] had sustained earlier in life." This is the first recorded symptomatology related to a low back disorder, coming some 10 years after discharge. There was no indication from the physician that the Veteran had previously sought treatment for back pain in the intervening 10+ years or reference to an in-service injury. Therefore, the medical evidence does not reflect continuity of symptomatology. In this decision, the Board has considered the lay evidence as it pertains to the issue of continuity. In rendering a decision on appeal, the Board must 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. See 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"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of a low back disorder have been continuous since service. He contends that he continued to experience symptoms relating to low back pain after he was discharged from the service. Specifically, during the February 2012 hearing, he maintained that he had the onset of back pain in service after a 1959 injury. He testified that he had chronic pain in service, but he did not continue to seek treatment because his Captain would not approve it. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a low back disorder after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of low back pain since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms related to his spine. Specifically, as noted above, the service separation examination report reflects that the Veteran was examined and his spine was found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Further, the Veteran's assertion that his superior officer would not approve treatment is not borne out by the in-service clinical records. Of note, he was hospitalized for a hydrocelectomy in January-February 1958 (no complaints of back pain at that time), and had visits to the clinic in April 1957 (twice), November 1957, December 1957 (twice), January 1958 (twice), February 1958 (multiple post-op visits), March 1958 (twice, plus additional post-op visits), April 1958 (twice), July 1958, September 1958 (twice) January 1959, February 1959, April 1959, September 1959 (twice) for a variety of non-low back-related complaints. This evidence weighs against his assertion that he was unable to seek treatment for low back complaints while on active duty. Next, while not dispositive, the post-service medical evidence does not reflect complaints or treatment related to low back complaints for more than a decade following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1960) and initial reported symptoms related to a low back disorder in 1970 (a 10-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); see Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. Also of significance, when the Veteran sought medical care for low back complaints in 1979 (he reported a 2-week history of back pain), 1982 (fell), 1984 (lumbar pain), 1987 (fell), and then fairly continuously since a September 1995 on-the-job injury, he did not report the onset of low back symptomatology during or soon after service or even indicate that the symptoms were of longstanding duration. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Next, the Veteran did not claim that symptoms of his disorder began in service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's low back disorder to active duty, despite his contentions to the contrary. The Veteran underwent a VA examination in October 2007. The Board finds that this examination provides little probative value as the examiner stated that he could not provide an answer as to whether the Veteran's residuals of a low back injury were the result of the in-service event without resorting to pure speculation. In a June 2012 VA examination, the Veteran reported that he injured his back in 1958 while loading heavy boxes. He stated that the box slipped and knocked him to the floor and he had had problems with his back ever since. He reflected that he was hospitalized but was not evaluated and only given aspirin. He indicated that he injured his back 6-months post-service and was treated by the company doctor, then not again until 1970 because he would self-treat. He acknowledged a 1997 on-the-job injury but did not report the 1995 fall. After a physical examination, the examiner concluded that the injury to the Veteran's back while in service did not produce any long term consequences that could be associated with the Veteran's present complaints. He opined that, based on the in-service medical records, the most probable diagnosis was lumbar strain that would have resolved without long term consequences or physical limitations. He reflected that the other diagnoses would be for post-service injuries not related to the injury in service. When asked, the examiner indicated that the Veteran's current low back disorder "was less likely than not" incurred in or caused by the claimed in-service injury. The rationale given was that the Veteran's explanation of the injury involving his scrotum and his back were not supported by the record as there was no history of direct trauma to the groin. The examiner reflected that the Veteran was hospitalized because of complication from a needle stick to the scrotum. The examiner also emphasized that the single incident of low back complaints were not related to trauma or injury and no further follow-up was given. The examiner noted that the Veteran's post-service jobs were very physical because of lifting heavy boxes. The examiner found that the in-service injury did not produce any long term consequences that could be associated with the Veteran's current complaints. He remarked that due to the Veteran's heavy work history, it was "more likely that a new injury happened following service." He also emphasized that the post-service records did not mention any injury to the Veteran's back with long term consequences and complaints. A review of the post-service records is consistent with the examiner's findings that the Veteran's low back disorder has not been related to service. Specifically, when the Veteran sought treatment in 1995 for a fall at work, he made no mention of an in-service injury. Similarly, no treating physician or health care provider has ever associated his low back complaints or diagnosed disorder to service. For example, in January-March 1996, the Veteran was treated for "acute" strain/sprain, indicating that it was not a chronic condition. In September 1996, he reported that he was in a "normal state of health" until he fell at work in September 1995. This suggests that he was not having back pain prior to that time. Moreover, he did not associate a low back disorder to service but rather focused on the September 1995 fall as the cause. When he reinjured his back in 1996, he attributed it to the September 1995 fall. In 1999, his low back disorder was noted to be "acute," again indicating that it was not a chronic condition. In March 2000, he denied a history of any previous injuries or accidents to his back until he fell at work in 1996 (although this is not a factually accurate report by the Veteran). At that time, he reported the testicular surgery in 1958 but made no mention of an in-service back injury. The Board finds it probative that he was seeking treatment for his back at that point and reported in-service treatment but said nothing about his low back. Therefore, the Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed low back disorder and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, a low back disorder - diagnosed as right lumbar radiculopathy - is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. While the Veteran contends that his current back disability is due to lifting large boxes while in service, the Board finds that the Veteran is neither competent nor credible to relate a current lumbar spine disability to service. Such competent evidence has been provided by the VA examiner who has examined the Veteran during the current appeal and by medical records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the medical evidence than to his statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). For these reasons, the Board finds that the preponderance of the evidence is against the claim. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The August 2007 letter also provided him with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. First, the RO has obtained VA outpatient treatment records. Further, the Veteran submitted private treatment records, and he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in February 2012. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence, including affording VA medical examinations in October 2007 and June 2012. To that end, 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 and findings obtained in this case are adequate. The VA nexus opinion provided considers all of the pertinent evidence of record, to include the statements of the Veteran, and provides a complete rationale for the opinions stated. In November 2012, the Veteran requested that the Board obtain Surgeon General's Office (SGO) records for a hospitalization in 1958. The Board notes, however, that his hospitalization records are, in fact, associated with the claims file. Although he represents that these records will reflect in-service treatment for a low back disorder, they describe a hospitalization for a scrotal disorder and make no mention of his back. Therefore, there is no basis to remand to obtain SGO records. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a low back disorder, claimed as residuals of a lower back injury at L3, L5 is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs