Citation Nr: 1304979 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-00 321A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to December 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1961 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. 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). This case was previously before the Board in March 2011, at which time it was remanded for further development to include obtaining outstanding VA medical records, requesting records from the Social Security Administration (SSA), providing additional notification to the Veteran, and according him a new VA medical examination which addressed the nature, extent, onset, and etiology of any back disorder found to be present. Additional VA medical records have been added to the file, and notification was sent via a March 2011 letter. As detailed in an August 2012 Memorandum it was noted that multiple attempts were made to obtain inpatient VA treatment records dated in 1968 and it was concluded that no such records were available. Similarly, the SSA responded that it had no records for the Veteran. Further, the Veteran was accorded a VA medical examination in April 2011 which included an opinion as to the etiology of the current back disability. Therefore, the Board finds that the March 2011 remand directives have been substantially accomplished, and, thus, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In October 2012, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA opinion) in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated later that same month; the Appellant was provided with a copy of this opinion in November 2012, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. A written response was subsequently received from the Veteran's accredited representative in January 2013. FINDING OF FACT The preponderance of the competent medical and other evidence of record shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As the February 1961 rating decision that is the subject of this appeal was clearly promulgated prior to the November 2000 enactment of the VCAA, it was impossible to provide notice of the VCAA before the initial adjudication in this case. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7- 2004. Further, under such circumstances, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that this defect can be remedied by a fully compliant VCAA notice issued prior to a readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). In this case, the Veteran was sent VCAA-complaint notification via letters dated in June 2010 and March 2011. These letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the general information used by VA to determine disability rating(s) and effective date(s). This case was last adjudicated below by an August 2012 Supplemental Statement of the Case (SSOC). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of this claim, and he has not indicated a hearing is desired in this case. As noted in the Introduction, efforts to obtain outstanding VA treatment records from 1968, as well as SSA records, were unsuccessful and such records are unavailable. Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested. For example, he has not indicated there is other outstanding evidence which would relate the etiology of his current back disability to service. The Board further notes that the Veteran was accorded VA medical examinations regarding this case in January 1961, December 2008, and April 2011, the latter two of which included opinions as to the etiology of the current back disability as did the October 2012 VHA opinion. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the December 2008 and April 2011 VA examiners, as well as the VA clinician who completed the October 2012 VHA opinion, were fully informed of the pertinent factual premises as the record indicates they all reviewed the Veteran's VA claims folder and accurately summarized the pertinent medical history. Although the Board concluded that the VA examiners' opinions, to include their rationale, did not address all relevant aspects of the Veteran's claim, no such deficiency is demonstrated by the October 2012 VHA opinion. Further, the VHA specialist's rationale in the opinion was consistent with the documented medical history and relevant findings regarding the nature of the Veteran's back disability. No prejudice is demonstrated with respect to this opinion. Accordingly, the Board finds that this evidence is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran has competently reported having back problems since service. The service treatment records show that his back was evaluated as normal at service entry. In November 1960, the Veteran was treated for back pain; he reported that he injured his back while moving a trailer. The following day he complained of having back pain for 24 hours and reported having muscle spasm on the left side of his back. The following day, i.e., two days subsequent to the in-service injury, the Veteran presented with complaints of back pain; the diagnosis was back strain. In December 1960, the Veteran had a mental hygiene consultation. The examiner reported that the Veteran was referred for evaluation by his commanding officer because of "continued ineptitude in learning basic military skills." The psychiatrist noted that "after over a month of basic training, the [Veteran] was still unable to execute facing movements or properly handle his weapon." The examiner added, "Many of the cadre have worked personally with the [Veteran] in an attempt to raise his abilities or his performance but his is persistently inept." The examiner further noted that the Veteran was from a farming community and had spent his life working on the farm. The psychiatrist noted, however, that "even there" he was given the simpler tasks by the family. Following his evaluation, the psychiatrist recommended that the Veteran be separated from service due to "general ineptitude." Upon examination at separation from service in December 1960, the Veteran was not noted to have any abnormalities of the spine, but within a few days of separation he filed a claim of service connection for a back disability. In January 1961 the Veteran was afforded a VA examination. The Veteran complained of a back injury due to heavy lifting in 1960. He stated that his back did not bother him unless he lifted something heavy, which would cause him to have pain in his left lumbar region. Examination of the back revealed very poor posture with exaggeration of dorsal kyphosis and lumbar lordosis. X-ray examination of the back revealed mild depression deformity of the superior endplate of L1, suggesting the result of an old injury, associated with mild narrowing between T12 and L1 and with roughening involving the opposing endplates. There was mild scoliosis with convexity to the left and both sacroiliac joints were within normal limits. The examiner diagnosed the Veteran with postural or mechanical backache and no general medical diagnosis. During a December 2008 VA examination, the Veteran reported that he had back pain for "probably 30 years." He had difficulty bending and could not do any lifting. Physical examination of the back revealed scoliosis, slight tenderness in the lumbar area, and limitation of motion. Deep tendon reflexes were absent, bilaterally, in the ankles that were attributed to age and not to a neurological abnormality. An x-ray of the lumbar spine revealed degenerative and posttraumatic changes and an x-ray of the thoracic spine revealed mild changes of the DISH, no fractures, mildly osteoporotic bones, and mild thoracic scoliosis convexity to the right. The examiner diagnosed the Veteran as having degenerative change of the thoracolumbar spine with scoliosis. He opined that after reviewing the claims file, service medical records, and the electronic medical records, it was less likely than not that the Veteran's current back problem was related to his in-service back strain. However, the examiner did not provide any rationale for his opinion. In April 2011, the Veteran was afforded another VA examination. The examiner noted that the Veteran had an episode of back pain in service that lasted for about 3 days, but resolved and then redeveloped around 1980 when he was working as a boilermaker. Physical examination revealed that the Veteran was obese and moved with difficulty due to generalized weakness and obesity. He had significant curvature of the spine and limitation of motion. X-rays revealed scoliosis with severe degenerative disc disease throughout the lumbar area and compression and degeneration at T-12 and L-1. The Veteran was diagnosed as having chronic lumbar sprain with degenerative disc disease, spondylosis, and scoliosis. The examiner opined that it was less likely than not that the Veteran's current symptoms were related to the episode in November 1960 as there was no evidence to connect the two since the Veteran was asymptomatic following service and at the time of separation. In the October 2012 VHA opinion, the VA clinician noted that the Veteran's relevant medical records had been reviewed, to include a brief medical record related to his lumbar strain during a short active duty period as well as his subsequent x-rays and examinations in his requires for service connection in 1961, and the more recent x-ray reports and reports of physicians in regard to his chronic conditions. The clinician also noted that he had given considerable weight to the opines and records that were more closely related in time to his injury. In summary, it was noted that the Veteran apparently worked on a farm before he entered into active military service; he then complained of back pain after lifting something heavy and all records point to a lumbar strain. The clinician noted that some cases of lumbar strain resolve in a few days and some in a few weeks. In this case, it appeared that the back issues resolved. It was noted that the Veteran was subsequently released from the military for general ineptitude and not for his back issues. It was acknowledged that x-rays from the 1961 VA examination showed findings of a congenital nature including exaggerated kyphosis and lordosis. The clinician stated that there was no way to relate this to a lumbar strain. Further, the clinician noted that the x-ray report at this time also noted a mild old deformity of the endplate of L1. There was nothing prior to that examination to compare to, however it was unlikely that a lifting incident would cause that in a patient his age. This finding was more likely to be related to some prior traumatic event such as jumping off something or falling. Moreover, the clinician noted that subsequent x-rays revealed chronic degenerative changes that were consistent with the Veteran's age and chronic medical conditions including his obesity and type 2 diabetes which make patients more prone to developing continued degenerative changes of the spine. The clinician stated that there was no way to relate these findings to what appears to have been a simple lumbar strain 53 years ago. Consequently, it was the clinician's opinion that it is at least as likely as not the Veteran's current back disability was not related to his military service or injury. In short, all of the competent medical care providers who have evaluated the Veteran in conjunction with this case have concluded that his current back disability is not related to service to include his documented complaints of back pain therein. Further, there nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. As such, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board acknowledges that the spinal changes noted at the time of the January 1961 VA examination were within the Veteran's first post-service year. Nevertheless, these changes were not attributed to arthritis, which is necessary for a grant of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a). In fact, as detailed above, the October 2012 VHA opinion concluded that these spinal changes were congenital in nature. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Granted, service connection may be established for a congenital disease that was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. However, as detailed above, the October 2012 VHA opinion concluded that there was no way to relate the congenital spinal conditions to the documented in-service lumbar strain, and that the type of documented in-service injury experienced by the Veteran would not result in the mild old deformity of the endplate of L1. Further, although the Veteran reports a continuity of back symptoms since service, the Board notes that no back pathology was found at discharge and that the December 2008 VA examination report reflects his report of a 30 year history of back problems, i.e., the onset of the condition many years after his December 1960 discharge from active duty. As such, because of the conflicting accounts, the Board finds that the Veteran did not have a chronic back condition since service. See Dalton; Caluza. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a back disability that was incurred in, aggravated by, or otherwise the result of his active service. As the preponderance of the evidence is against a grant of service connection, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for back disability is denied ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs