Citation Nr: 1305012 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-23 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to October 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which denied service connection for a back condition. In April and November 2011, the Board remanded the case for further evidentiary development. The case has been returned for review by the Board. In a 2012 informal hearing presentation, the Veteran's representative made arguments in support of a petition to reopen a claim of cervical strain. This claim has not yet been adjudicated by the RO and is referred for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT Although the Veteran has current diagnoses of back degenerative disorders, the most probative (meaning competent and credible) evidence of record indicates these conditions are unrelated to his military service, including specifically to any disease, injury or trauma in service. CONCLUSION OF LAW The Veteran's back disability, including the arthritis, was not incurred in or aggravated by his military service, may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a pre-adjudication letter dated in July 2004, the RO informed the Veteran of its duty to assist him in substantiating claim for service connection under the VCAA, and the effect of this duty upon the claim. A letter in March 2006 informed him of how disability ratings and effective dates are assigned, if service connection were to be granted. See Dingess v. Nicholson, supra. The Veteran's appeal was most recently readjudicated in December 2012. Of further significance here is the fact that neither the Veteran, nor his representative, have asserted any deficiencies in the notice provided to the Veteran with regard to either claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to VA's duty to assist, efforts to obtain the Veteran's service treatment records have been unsuccessful. His service treatment records are not available. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Review of the claims folder reveals that this heightened duty was met as the RO attempted to obtain the Veteran's service treatment records including Surgeon General Office (SGO) records. The Veteran's service treatment records were burned in a fire at the National Personnel Records Center (NPRC) in 1973. On June 7, 2004, the RO requested sick/morning reports from December 1957 to February 1958 for the 182nd US Army Security Agency Company. In the November 2011 remand the Board noted that this request was never answered by the NPRC and no follow up request was made. In the remand the Board requested that the RO perform another request from the NPRC. With regard to hospital treatment, the Board also noted that the RO attempted to locate the Veteran's hospital records in June 2004. A response from the NPRC in May 2005 indicated the Veteran's hospital records would have been associated with his personnel jacket and were presumed burned. Given that, at NPRC, hospitalization or clinical medical records are sometimes filed under the name of the facility, and not the name of the Veteran, the Board. The Board also requested that on remand, the RO request from either the NPRC or other appropriate source, records related to the Veteran's treatment at the hospital at Rothwesten Air Base or the US Army Hospital in Frankfurt, Germany. In March and April 2012, the RO again requested records from NPRC. In an April 2012 response, the NPRC indicated that a request for military records should be initiated through the Personnel Information Exchange System (PIES). Between May and November 2012, there were a series of requests and responses via PIES with regard to whether his service treatment records were at the NPRC either under his name, Rothwesten Air Base, or the US Army Hospital in Frankfurt, Germany. As noted in a December 2012 memorandum, the responses indicated that all records from Germany were destroyed in the 1973 fire. The Veteran was notified. The Board finds there has been substantial compliance with its November 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Despite the unavailability of the service treatment records, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Besides the additional search for service treatment records, the RO had earlier afforded the Veteran a VA examination in May 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). After reviewing and reporting the Veteran's service and medical history, an evaluating VA examiner found it unfortunate that there were no medical records to indicate either a neck or back disability subsequent to military service until 2005. She concluded that there is insufficient evidence to state that the Veteran's current osteoarthritic spinal conditions are related to service, despite the destruction of his military records. She went on to state that there is insufficient medical evidence to portray ongoing chronic spine conditions without resorting to mere speculation. The Board finds that the examiner's stated inability to further comment on whether the Veteran's spinal disabilities might be related to in-service injuries not documented is adequate and that another opinion is not necessary. In Jones v. Shinseki, 23 Vet. App. 382, 391 (2010), the Court held that an examination is not inadequate merely because the examiner states that he or she cannot reach a conclusion without resort to speculation. The Court stated that when an examiner has done all that reasonably should be done to become informed about a case and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence, there is nothing further to be obtained from that particular examiner. Moreover, the Court held that VA is not bound to obtain additional medical opinions until it declares that no further examinations would assist the claimant. Rather, this assessment is inherent in a finding that the duty to assist has been fulfilled. In this regard, the Court noted that further medical evidence need not be obtained if the available medical evidence itself indicates that determining the cause of a disability is speculative. Id. (quoting Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Court concluded that while VA has a duty to assist the claimant by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Id. As will be explained below, the Board does not find it credible that the Veteran sustained injuries to his back during active service or that any pathology of the back manifested during active service or within a year of service discharge. Thus, there is no indication that the Veteran's current disabilities of the spine may be related to an in-service disease, injury, or event. See McLendon v. Nicholson, 20 Vet. App. at 83 (holding, in pertinent part, that in order to trigger VA's duty to provide a medical examination or obtain a medical opinion, there must be an indication that the claimed disability is related to service). Accordingly, the examiner's opinion that there is insufficient evidence to state that the Veteran's osteoarthritic condition is related to service in the absence of medical records is sufficient for the purpose of making a decision on this claim. See id.; see also Jones, 23 Vet. App. at 391; Roberts v. West, 13 Vet. App. 185, 189 (1999). There is no indication that the records obtained since the 2011 VA examination would yield new information not already considered in that examination. Thus, further examination or opinion is not required. See id. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Service Connection for a Back Disability 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"). The Veteran claims he was involved in a motor vehicle accident (MVA) sometime in the winter of 1957, specifically sometime in December 1957 to February 1958, while stationed in Germany. He recalls riding as a passenger when the car slid on some ice and hit a tree. He claims he incurred a fractured neck, but also incurred injuries to his ankles, knees, front right foot and back. He claims he currently has headaches and pain in his neck, ankles, feet and back due to this past MVA. The Veteran, in support of his claim, submitted a September 2005 statement from his brother who recalled hearing about the Veteran's MVA. Indeed, the Veteran's brother indicated the Veteran was hospitalized for seven to ten days in Germany and his parents were quite worried. The Veteran's brother indicated he remembered this vividly because he was a senior in high school at the time. Moreover, in statements received in November 2004 the Veteran indicated that over the years he sought medical care for his back through two physicians, but they are both deceased and he is unable to obtain there records. A VA outpatient record dated in December 2004 shows that the Veteran reported a 40 year history of working in a coal mine. The earliest available post-service medical evidence pertaining to a back disability is a February 2005 VA outpatient record in which the Veteran was seen for complaints of pleuritic type pain from a cough. X-rays, at that time, revealed mild thoracic-spine scoliosis and spurring and degenerative changes of the dorsal spine. As recited above, in May 2011, after reviewing and reporting the Veteran's service and medical history, an evaluating VA examiner found it unfortunate that there were no medical records to indicate either a neck or back disability subsequent to military service until 2005. She concluded that there is insufficient evidence to state that the Veteran's current osteoarthritic spinal conditions are related to service, despite the destruction of his military records. She went on to state that there is insufficient medical evidence to portray ongoing chronic spine conditions without resorting to mere speculation. In this case, there is no objective evidence of injury or treatment during service. There equally is no indication of arthritis affecting his back within the one-year presumptive period following the conclusion of his service, meaning by October 1959. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In reviewing his post-service history, there are no medical records reflecting complaints, diagnosis or findings related to a spine disability until 2005, so for some 46 years (i.e., more than four and a half decades) after his military service ended. The Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). As previously noted, the Veteran's lay statements that he has experienced continuous back pain since an inservice injury have been considered. His statements are noteworthy in light of the holding in Buchanan v. Nicholson, 451 F.3d at 1333, wherein the U.S. Federal Circuit Court of Appeals recognized lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. The Veteran's statements however are of little probative value when weighed against the fact that he went many years without any documented complaint, much less treatment, for back pain after his military service had ended. Moreover, the Board has taken into consideration the Veteran's self-reported 40 year history of working in a coal mine, which appears to be employment inconsistent with a chronic back problem. Further, the Board finds the fact that in September 2000, at the time the Veteran originally applied for VA benefits, he made no mention of continuing back pain since service. Still further, in reviewing the VA medical records that date between 1999 and 2005, the Veteran complained of a variety of ailments but failed to complain of continuing back problems, let alone from an inservice injury. And when originally examined in February 2005, he certainly did not refer to an inservice injury. This tends to refute the notion that he had experienced continuous symptoms like back pain, etc., since any injury to his back he may have sustained in service, such as in the manner alleged. 38 C.F.R. § 3.303(b). These facts together, undermine his credibility insofar as whether he sustained such a serious injury during service and continued medical care since. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). See, too, Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, the Board may consider whether self-interest may be a factor in making such statements); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In addition to the Veteran's lay statements, the lay statements of the Veteran's brother are insufficient to establish service connection. The Board has considered the statements of his brother who, in essence, indicated he remembers his mother speaking of a motor vehicular accident, involving his brother. He is certainly competent to report on such an observation. However, because degenerative disease of the spine is not the type of condition that is readily amenable to mere lay opinion regarding their diagnosis and etiology, the lay statements from his brother are of little probative value. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). The more probative opinion is this regard comes from the 2011 examiner who reviewed and considered the Veteran's complete medical history, the aforementioned lay statements, the Veteran's post service injuries, along with sound medical principles and was unable to find a relationship between the Veteran's reported events of service and his current disorders, unless she resorted to speculation. Service connection cannot be established based on speculation. In conclusion, since the Veteran has not met the essential requirement of establishing the required nexus or linkage between his current disabilities of the back and military service, and in particular the injury he allegedly sustained in service, the preponderance of the evidence is against his claim. Because the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied. ORDER Service connection for a back disability is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs