Citation Nr: 1303567	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO. 09-11 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from April 1971 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

The claims folder was subsequently transferred to the jurisdiction of the Denver, Colorado RO.

The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in March 2011 and a transcript of the hearing is of record.

In September 2011, the Board reopened and remanded the issue for further development.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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).


FINDING OF FACT

The Veteran does not have a low back disability due to any incident of his active duty service.






CONCLUSION OF LAW

The criteria for the establishment of service connection for a low back disability are not met or approximated. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 5107, 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duty to Notify and Assist

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 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran was sent notice in October 2007 that notified him how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006) with subsequent readjudication in a March 2009 Statement of the Case.

The VCAA notice letter is compliant with the United States Court of Appeals for Veterans Claims (Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since it sufficiently explained the bases of the prior denial (i.e., the deficiencies in the evidence when the claim was previously considered). If any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of the new and material evidence issue. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

The claims file contains treatment records identified by the Veteran, VA treatment records, and the report of a November 2011 VA examination. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the report reflects review of the claims file and assessment of the Veteran's contentions and disabilities, the report is adequate. The duty to assist in the gathering of records and a VA examination has been met and the RO/AMC has substantially completed the September 2011 remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs), pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the STRs, VA outpatient treatment records, and private medical records. 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. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd281 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).

Merits of the Claim

The Veteran alleges that he has had a continuing back disorder since several incidents of his active service. Among other contentions, he testified that he hurt his back lifting 32-gallon canisters during service; that he sustained shrapnel wounds on his back from mortar rounds during combat in Vietnam; and that his back was strained during his routine duties as service cook. (See, e.g, March 2011 Hearing Transcript, pp. 9-11).

The Board presently denies the claim. Assuming that the Veteran's account of claimed in-service events is credible, the preponderance of the evidence is against a finding that any current back disorder is related to service. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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, 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. Layno v. Brown, 6 Vet. App. 465 (1994). 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 standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

In the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, it is well to observe that these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent medical evidence is generally required. In other words, the above-cited provisions do not presumptively establish service connection for a combat veteran; rather, they relax the evidentiary requirements for determining what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996).

The Veteran's Report of Separation from the Armed Forces (DD Form 214) reflects that he served 4 years and 4 months of Foreign Service. He has received no decorations, medals, badges, citations, or ribbons that are indicative of a "combat" status. He testified that he has not received the Purple Heart. However, he did complain of shrapnel wounds in service. (See October 1981 Report of Medical History). He was a food service specialist for approximately 18 years during service. Resolving all reasonable doubt in the Veteran's favor, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are for application in this case.

The Veteran's STRS indicate that he was involved in a car accident in July 1972. However, medical reports associated with the incident indicate that he did not complain of back pain, but instead  complained of a contusion on the calves of both legs and headaches.  A February 1973 record noted cervical sprain of the neck while lifting items in the mess hall. In June 1985, the Veteran was involved in a motorcycle accident and complained of multiple bruises and abrasions - no complaints regarding his back were recorded. 

In October 1981, the Veteran underwent a periodic physical examination conducted by the service department. In a Report of Medical History questionnaire, the Veteran denied then having, or ever having had "recurrent back pain." However, in the questionnaire, when asked "[h]ave you ever had any illness or injury other than those already noted (If yes, specify when, where, and give details)"-The Veteran responded in a handwritten note "Vietnam War Right Leg-Back-Ears" and "shrapnel posterior R trunk, RVN, 1972."  However, the service department examiner reported that the Veteran's "spine [and] other" musculoskeletal systems were normal. As to the Veteran's specific reference, the examiner noted that the Veteran had burns on the posterior right trunk and right knee - the examiner made no reference to any back abnormality. 

In March 1984, the Veteran underwent another service department examination. He reported that he then had, or once had "recurrent back pain" in a Report of Medical History questionnaire. The service department examiner noted that the Veteran's back pain was relieved by aspirin and "Doan's pills." 

The Veteran reiterated his reported of recurrent back pain during a May 1987 service department medical examination. However, on the accompanying Report of Medical Examination, the examiner noted that the Veteran's "spine [and] other" musculoskeletal systems were normal. The examiner assessed the Veteran's PULHES profile as to his upper and lower extremities as indicative of a high level of fitness. Odiorne v. Principi, 3 Vet. App. 456 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

The Veteran again reported recurrent back pain during a May 1991 pre-retirement physical examination Report of Medical History questionnaire, and indicated that he hurt his back while in Saudi Arabia. However, on the accompanying Report of Medical Examination, the examiner noted that the Veteran's "spine [and] other" musculoskeletal systems were normal. The examiner assessed the Veteran's PULHES profile as to his upper and lower extremities as indicative of a high level of fitness. The examiner made no notation as to the Veteran's then report of recurrent back pain. 

During development of his initial application for service connection of a claimed back disorder, the Veteran underwent a September 1991 VA examination. The examiner noted the Veteran's report of onset of discomfort of the low back in 1984 from heavy lifting during service. However, upon physical examination, the VA examiner noted that the Veteran displayed normal lordosis, no scoliosis, no paralumbar spasm. She noted that the Veteran experienced no pain to palpation in the lower back and that the Veteran's range of motion studies were "within normal limits" including that he "easily" performed motions. She concluded that there was insufficient clinical evidence then present to warrant a diagnosis of any acute or chronic disorder or any residuals. An x-ray showed mild hypertrophic degenerative changes involving the tibial spine.

A May 2007 x-ray report reflected well preserved vertebral body heights. Alignment was normal. There were mild changes of degenerative disk disease at L4-5 and L5-S1 with no spondylolisthesis. The diagnosis was minimal degenerative changes in the lower lumbar spine. A July 2007 VA treatment record noted arthralgias in multiple sites. The Veteran was diagnosed with lumbar spondylosis in an October 2007 VA treatment record.

An April 2011 written private statement from David A. Hull, D.O. stated that the Veteran had injuries while on active duty in Vietnam approximately in 1972. He stated, in part, that the Veteran had a shrapnel injury to the right flank and that "because of his service, he has significant degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 level." However, Dr. Hull did not provide the basis of his opinion.

A November 2011 VA examination reflects that the Veteran was diagnosed with degenerative disc disease and spondylosis of the thoracolumbar spine; and anterior wedge compression of the T6-T8 with associated mild kyphosis. The Veteran reported that he had low back pain between 1980 and 1982 when he was involved in a helicopter crash in Colorado. He alleged that he avoided going to sick call during service so that he could be promoted. Veteran stated that he was told he had a slipped disc in 1991.

The VA examiner stated that he reviewed the claims file, which showed no evidence of an acute injury or trauma to the back. He noted that there was documentation of a vehicle accident in 1972, but no complaints of injury related to the back. He also mentioned that the Veteran was treated for a cervical sprain in March 1973 with no subsequent follow-up. The examiner observed that a report of medical history dated in May 1987 showed that the Veteran marked "recurrent back pain, " and that a "history of intermittent left flank pain resolved with Aspirin" Was noted no diagnosis of thoracic or lumbar spine was given at that time. The examiner also noted that a report of medical history dated in 1991 showed complaints of "recurrent back pain." 
However, the examiner also noted that the 1991 examination reflected normal spine findings and the examiner noted that at that time there was "insufficient clinical evidence at present to warrant a diagnosis of any acute or chronic disorder or residuals thereof" regarding the Veteran's spine. He further stated that review of private medical records showed that the Veteran was seen in 2001 and a normal back examination with full range of motion. The Veteran was assessed again in 2007, at which time he complained of stiffness in low back with left leg pain. X-rays at that time showed mild degenerative changes at L4-5- and L5-S1.

The VA examiner concluded that the Veteran did not have an acute or chronic mid-back or low back injury while in service. His explanation was premised, in part, on the separation examination, which revealed a normal spine. There was no documentation of an ongoing back condition after leaving service. Private records showed Veteran complained of low back pain in 2006 stating that he had "low back pain for 12 months." 

The Court has held that a medical opinion may not be discounted solely because of lack of claims file review. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion."). Here, the April 2011 private written statement from Dr. David Hull does not provide a rationale for a positive nexus opinion. There was no explanation provided for his assertions of etiology. Further, he did not address the Veteran's other back disabilities nor did he reconcile the fact that the Veteran did not have a confirmed diagnosis of a back disability until many years after separation from service. Therefore, this statement is of limited probative value.

Further, STRs and the post-service treatment records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

Although the Veteran filed a claim for a low back disability shortly after his discharge from service in August 1991, the Veteran did not have a confirmed diagnosis of a back disability at that time. The September 1991 x-ray found a normal lumbosacral spine, and as detailed above, the September 1991 VA examiner stated that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic disorder or residuals thereof. (See also December 2006 History and Physical Report stating "negative for any weakness or chronic forms of arthritis" and "muscle tone, strength and gait were within normal limits"). 

The evidence of record reflects that the Veteran was diagnosed with degenerative disk disease in the lower cervical spine in May 2007; minimal degenerative changes in the lower lumbar spine in May 2007; and lumbar spondylolysis and lumbar spine strain in October 2007. In particular, when the 1991 and 2007 radiographic studies are compared, it is clear that the latter showed marked abnormalities that were not evident in service or within a short time after the Veteran's military retirement. 

The Veteran is competent to relate observable symptomatology such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, in light of other evidence of record, the Board finds that these statements are not credible to establish service connection based upon continuity of symptomatology because it is contradicted by other medical evidence of record that reflects an initial diagnosis approximately 16 years after service. Service connection cannot be established based upon continuity of symptoms. 38 C.F.R. § 3.303(b); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Observing that "[o]nce evidence is determined to be competent, the Board must determine whether such evidence is also credible.").

Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, presumptive service connection is not warranted because arthritis did not manifest within one year of separation from service as discussed above.

The Veteran's testimony is outweighed by the medical evidence of record. A VA examiner reviewed his STRs and found that his in-service complaints of back pain were not related to service because the incidents documented did not produce a diagnosed back disability during and shortly after service. The Veteran's assertion that his in service back pain is related to his current disability has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007).

The preponderance of the evidence is against a finding that the Veteran's current back disability is due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for a low back disability is denied.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs