Citation Nr: 1307281	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  07-03 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel 


INTRODUCTION

The Veteran had active service from April 14, 1965, to June 9, 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In his December 2006 substantive appeal, the Veteran requested a hearing before a Decision Review Officer at the RO.  A hearing was scheduled for April 2007 but the Veteran failed to report.  As such, his hearing request is deemed withdrawn.

In October 2012, the Board remanded the case for additional development.  As discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his Virtual VA file.  The additional evidence contained therein is considered part of the constructive record under VA's current guidelines.  


FINDING OF FACT

The Veteran's back disability manifested many years after the Veteran's discharge from service, and is not otherwise shown to be etiologically related to service.


CONCLUSION OF LAW

A back disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1111, 1112, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.307, 3.309, 3.310(b) (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.  38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  The Board finds that VA has satisfied its duty to notify under the VCAA.  A March 2006 letter provided notice, before the initial unfavorable decision in May 2006, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  Another letter dated March 2006 advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess.  

VA also 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, pertinent treatment records, and providing an examination when necessary.  38 C.F.R. § 5103A; 38 C.F.R. § 3.159.  The Veteran's VA and private treatment records, Social Security Administration (SSA) records, service treatment records (STRs), and administrative personnel records have been obtained.  

In the February 2012 remand, the Board directed the AOJ to provide the Veteran with an opportunity to submit lay statements and the names of any providers who treated his back after September 2006.  The AOJ complied with this directive via letter in February 2012, and the Veteran responded, submitting lay statements and stating that his only treatment has been through VA.  The remand also directed the AOJ to associate any pertinent outstanding records, including personnel records, with the claims file.  Accordingly, personnel records were obtained and associated with the paper claims file, and VA treatment records dated through October 2012 were associated with the electronic paperless file.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.

Pursuant to the February 2012 remand, the Veteran was provided with a VA examination in February 2012.  The examination report is adequate for evaluation purposes because the examiner conducted an interview, clinical evaluation, diagnostic testing, and review of the Veteran's medical history and records.  The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Therefore, the Board finds that the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard.  D'Aries, supra. 

The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  No further assistance to develop evidence is required.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Service Connection Claim

In documents of record, the Veteran contends that he injured his back in a car accident prior to service, and that his low back pain was aggravated by his military service.  The Veteran asserts that his current back disability is the result of that aggravation and therefore service connection is warranted.

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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  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, supra. 

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, 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 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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez, supra.  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, 21 Vet. App. at 124 ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The record shows that the Veteran has a current back disability.  VA treatment records show complaints of low back pain in April 2006 and a diagnosis of lumbago in November 2006.  March 2010 VA treatment records show diagnosis of chronic low back pain based on an imaging study that showed lumbar spondylosis and levoscoliosis, intervertebral osteochondral changes, more prominent at the L5-S1 level, degenerative joint disease of the posterior facet joint, and paravertebral muscle spasm. 

The May 2012 VA examination included an interview of the Veteran, taking a medical history, physical examination with motor, sensory, range of motion, and reflex testing, and imaging studies.  The examiner stated that the Veteran reported diagnoses of a T10 fracture and lumbar pain in 1962 after a car accident.  During the examination, the examiner noted exquisite pain in the lumbosacral area and thoracolumbar area.  The Veteran could not complete repetitive range of motion testing due to pain, and pain limited his motion, sitting, standing, and/or weight-bearing.  He required constant use of a brace and cane.  Imaging studies showed arthritis but no fracture, and no other significant findings.  The Veteran's back pain limited his ability to dress his lower extremities, work, drive, and perform household duties.

The Board finds that the Veteran has a current back disability, including diagnosed chronic pain and arthritis.  

In order to grant service connection, there must be an in-service incurrence or aggravation of a disease or injury.  There is no objective evidence of injury or disease during service.  The STRs include a pre-induction medical history report, dated April 1964, noting a history of fracture to the 12th rib in a car accident and subsequent rib surgery with no impairment.  A pre-induction report of medical examination sharing the same date shows normal spine and musculoskeletal evaluation.  The April 1965 induction report of medical examination shows normal spine and musculoskeletal evaluation.  At separation in June 1965, both the medical history and examination reports are silent as to the back.  There is no mention of back injury, pain, complaint, or treatment in any of the STRs.

The first medical evidence and recorded complaint of back pain are found in a November 1994 disability report completed for SSA purposes.  In the report, the Veteran describes his disabling condition as "back condition and nervous condition (due to alcoholism)."  He states that his condition first bothered him in June 1993, and he made him stop working the same month.  He explained that he had a lot of pain in his back and three broken ribs that limited his daily activities and ability to work as a maintenance man, which had been his career since 1979.  The Veteran was diagnosed with chronic dorso-lumbar strain.

SSA records show that for the purpose of disability determination, the Veteran underwent psychiatric and neurological evaluations in March 1995.  At the neurological evaluation, the Veteran reported that he suffered an automobile accident "several years ago" and that ever since that accident, he had suffered back pain.  He reported suffering another automobile accident in 1991 that caused a fracture of the ribs and required him to wear a thorax cast.  He stated that he re-injured his back in the second accident.  At the psychiatric evaluation four days later, he reported a single accident in 1991 that caused rib and spinal column fractures.  He complained of current back ache and rib pain.  An August 1993 private treatment record shows no diagnosis of muscular-skeletal illness.  A private treatment record dated November 9, 1994 states, "one or two weeks ago he had an automobile accident."

SSA records also include the report of a general medical evaluation performed in the course of disability determination in April 1995.  The Veteran reported a fracture of his ribs in a 1962 accident and a separate history of low back pain of "a few years' duration."  He complained of low back pain and on examination had tenderness in the lumbar 4th vertebrae.  The examiner took x-rays of the thoracic and lumbosacral spine.  Their findings include anterior compression fracture of T4, small lower dorsal and anterolateral degenerative spondylotic changes, calcification in T10, T12-L1 changes, and preserved lordosis. 

Private treatment records include a letter dated November 2001that states that the Veteran suffers from unspecified osteoarthritis.  VA treatment records first mention low back pain in April 2006 and a diagnosis of lumbago in November 2006.  In his notice of disagreement dated August 2006, the Veteran asserts that his back condition is "a consequence of a car accident in which I broke several ribs."

VA treatment records include x-rays of the spine taken in January 2007.  They show dense calcifications at T11 and T12, and result in the following entry to the active problem list: "Aftercare for healing traumatic fracture of vertebrae during an assault and car accident."  It is unclear what assault or accident is being referenced.  At various points in the record the Veteran refers to being stabbed during a robbery, and in August 1993 he reported abdominal surgery due to a puncture wound trauma around 1974.  A February 2011 VA treatment record mentions a diagnosis of rib fractures from an assault in 1987.

A VA treatment record dated June 2007 shows that the Veteran reported back pain with an onset in June 2007 that had been acute for less than three months.  The record shows a reported history of a compression fracture at T5 from a car accident in 1962.  March 2010 VA treatment records show diagnosis of chronic low back pain.   At his February 2012 VA examination, the Veteran claimed that he had lumbar pain and a fractured T10 vertebra in a 1962 car accident.  

The Board acknowledges that the Veteran is competent to describe the subjective symptom of back pain.  See Layno, supra (a Veteran is competent to report on that of which he or she has personal knowledge).  While the Veteran is competent to testify that back pain has existed since the car accident in 1962, the Board does not find his lay statements credible.

The Veteran's accounts of his various car accidents and the injuries sustained therein have been inconsistent.  He has alternately reported spinal fractures occurring in 1962, 1991, and in an accident "several years before" 1991.  He has reported differing locations of the fractures, including T5 and T10, neither of which corresponds to the anterior compression fracture of T4 shown by 1995 x-ray studies (and the only fracture substantiated by x-ray).  His reports of the onset of pain also vary, including 1962, 1991, June 1993, and a few years before 1995.  The number and location of ribs broken at the time of his spinal fracture vary.  In his notice of disagreement dated August 2006, the Veteran is vague, merely stating that his back condition is "a consequence of a car accident in which I broke several ribs."  The record shows car accidents in 1962, 1991, 1994, and possibly others.  A September 1994 private treatment record notes that the Veteran lost his driver's license due to an accident.  His May 2012 lay statement focuses on broken ribs from an unspecified automobile accident, and does not actually mention his back.

The STRs show that the Veteran fractured his 12th rib in a 1962 car accident and underwent subsequent rib surgery, but are silent with respect to his back.  There is no objective evidence of back pain until the November 1994 SSA disability report that provides an onset date of June 1993 for "back condition."  The medical evidence suggests that the Veteran suffered additional rib fractures in the 1991 car accident, as well as a spinal fracture.  Taking into account the fact that the record is silent for back pain until nearly 30 years after service, and that the first complaints of back pain are dated after the 1991 car accident, the Board finds that the Veteran's lay statements regarding the chronology of his symptomatology are not supported by the evidence of record.  

The mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  However, the Veteran's reports regarding the onset of his symptomatology and the chronology of events are both internally inconsistent and inconsistent with the other evidence of record.  Under Caluza, the Board finds his statements are not credible.  Unreliable statements cannot support a credible finding of an in-service injury or aggravation, or of continuity of low back symptomatology since service.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

The Veteran also submitted three lay statements from friends in May 2012.  Each statement expresses that the individual has known the Veteran for decades, has witnessed health problems, and has been told by the Veteran that his injuries are due to a car accident.  One lay witness describes the injury as being to the Veteran's 5th and 6th ribs.  The second and third statements are nearly identical and state that the individuals have conveyed the Veteran to the hospital for unbearable back pain, rib pain, and pain throughout his body that the Veteran tells them is due to an accident many years ago.  The Board does not find these statements specific enough with respect to onset of symptoms to be probative on the question of whether there was an in-service injury or aggravation of the Veteran's back.

Finally, the Board addresses the 2012 VA examiner's report with regard to an in-serve injury, disease, or aggravation.  The examiner states in his opinion that the Veteran "suffered a car accident prior to service in 1962 on which he suffered a fracture in his T5 vertebrae.  This is unrelated to service."  The examiner's opinion appears to be based on the Veteran's lay reports (which the Board has found to be not credible) and the VA treatment record noting a history of T5 fracture (which was also based off of the Veteran's lay report).  The examiner's statement is internally inconsistent, as the examiner does not reconcile the fact that he reported a history of T10 (not T5) fracture in 1962.  It is also inconsistent with the record, failing to account for the only objective evidence of fracture at T4.  The Board does not attribute any probative weight to this statement as evidence of a spinal fracture prior to service.

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  No back disability was noted at entrance into service.  Accordingly, the Veteran is presumed to have been sound on entry with respect to his back.

With no objective medical evidence or credible lay evidence of injury or disease during or before service, the second element of service connection is not established.  Therefore, a discussion of whether there is a nexus between current disability and an in-service event or aggravation is moot.

The Board notes that where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309.  The record shows that in February 2005, the National Personnel Records Center verified that the Veteran did not have 90 days of creditable active service.  This is consistent with the dates of active service in his personnel files.  Therefore, the chronic disease presumption does not apply to the Veteran.

The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for back disability.  Therefore, his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for back disability is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs