Citation Nr: 1307345 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-22 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's current back disability is not related to an in-service disease, injury or event. CONCLUSION OF LAW A back disability was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a March 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the March 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. Although during an October 2009 private psychiatric evaluation the Veteran reported being on Social Security Administration (SSA) disability, no SSA records are associated with the claims file. However, neither the Veteran nor the record as a whole has in any way indicated that any such SSA records might be pertinent to the Veteran's current claim for service connection for a back disability, which involves a reported in-service injury occurring more than 40 years prior; rather, during his August 2010 Board hearing, the Veteran testified that no physician had ever related his back disability to his service. Therefore, the Board finds that another remand to obtain such records and further delay in deciding the matter on appeal is not warranted in this case. 38 U.S.C.A. § 5103A(a)(2). Also, the Veteran has not been afforded a VA examination in connection with his current claim for service connection. However, as explained below, even assuming that the evidence establishes that the Veteran suffered an injury in service as he has asserted, the Board finds that the evidence does not contain medical evidence suggesting a nexus, credible evidence of continuity of symptomatology, or any other such evidence that might indicate that the claimed disability may be associated with injury in service. Therefore, remand for a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, in a December 2012 supplemental statement of the case, the RO reviewed all of the evidence of record and readjudicated the Veteran's claim. Accordingly, there has been substantial compliance with the Board's September 2012 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the August 2010 Board personal hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the nature and etiology of the disability in question, including questions regarding the in-service event that the Veteran believed had resulted in a current back disability, the Veteran's diagnoses and treatment during and following service, and whether any of the Veteran's private physicians had ever related his current back disability to his service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in his testimony during his August 2010 Board hearing and his other submitted statements and evidence, the Veteran asserts that he has a current back disability that is the result of an in-service injury that occurred when he fell on a whaleboat after hitting a wave. Service personnel records reflect that the Veteran served at a United States Naval Station during most of his service from October 1965 to October 1967. Service treatment records reflect no reports or findings relating to any back injury or back problems. On his September 1967 report of examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the spine and musculoskeletal system, and no back problems were noted. The earliest indication in the record of any back problem is the Veteran's January 2008 claim for service connection for a back disability. In listing his treatment related to his back problem on his application for benefits, the Veteran stated that he had received treatment in service in 1967, and began receiving private treatment again in 2006. The Veteran submitted a written statement from a service comrade, D.S, dated in September 2008, in which D.S. asserted that he served with the Veteran. D.S. stated that he and the Veteran were on a motorized whaleboat, although D.S. did not remember the date, but that two barges had gone adrift and their lieutenant ordered all of the boats out within two hours to retrieve the barges. D.S. stated that on the way they hit a wave that really jarred the boat, and that after hitting the wave the Veteran told D.S. that he had hurt his back. VA treatment records dated from July 2008 to January 2009 reflect that in September 2008 the Veteran reported having low back pain that was the result of injury in the military, that he had had spinal surgery beginning with a spinal fusion 32 years prior, and that his most recent surgery had been approximately four years earlier. He again reported back pain with a history of two previous surgeries in October 2008, and in November 2008 reported that he had just recently had his third back surgery and stated that a magnetic resonance imaging (MRI) revealed a ruptured disc. A November 2010 private report of operation reflects that the Veteran underwent decompression and posterolateral fusion of L2-L4, with a diagnosis of post fusion stenosis of L2-L3 and L3-L4. The record indicates that the surgery was the result of back and bilateral buttock leg pain due to post fusion lateral recess stenosis at both 3-4 and 2-3 after a previous successful fusion with an underlying history of a previous successful fusion of L4-5 stenosis and degenerative spondylolisthesis and then a subsequent L2-3 microdiscectomy in 2008, several years following the previous L4-5 fusion. It was thought that his symptoms were best explained on the basis of the post fusion stenosis at 2-3 and 3-4. During his August 2010 Board hearing, the Veteran testified that, during his period of service, his lieutenant came down the waterfront one morning where the Veteran was and demanded that all boats be ready in two hours to capture barges that had been untied. He testified that he was on the only motor whaleboat, that a wave hit his boat, and that, as he was then in the smallest boat standing up, it knocked him down and he injured his back. He reported that, following the incident, he went to sickbay and the corpsman there told him that he had a pulled a nerve or muscle, and that the Veteran continued with the pain but sought no further in-service treatment. He testified and that his back was bothering him when he was discharged from service but was tolerable, but that, after he left service, in approximately 1970, he first sought treatment and had his first back operation for a ruptured disc. He also testified that five years prior to the Board hearing he had had another back operation. He further testified that none of his treating physicians had ever talked about the origin of his back problems or indicated that his problems originated with his in-service injury. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claim must be denied. While the evidence reflects that the Veteran has a current back disability, including post fusion stenosis of L2-L3 and L3-L4, for which he underwent decompression and posterolateral fusion of L2-L4 in November 2010, the weight of the evidence indicates that his current back disability is in no way related to an in-service disease, injury or event. The only evidence of any in-service back injury is the statements and testimony of the Veteran reflecting that he injured his back after being knocked down while standing in a motor whaleboat after the boat hit a wave while trying to capture barges, and the September 2008 statement from D.S., indicating that he and the Veteran were on a motorized whale boat on their way to retrieve barges and that, after hitting a wave, the Veteran told D.S. that he had hurt his back. Even assuming the credibility of these statements, the evidence does not indicate that any current back disability might be related to this incident. As reflected in his August 2010 hearing testimony, the Veteran asserts that, following this injury, he received in-service treatment, was told that he had a pulled a nerve or muscle, continued to have back pain but sought no further in-service treatment, and that his back was bothering him when he was discharged from service. He further asserts that he first sought treatment in approximately 1970 and had surgery for a ruptured disc at the time. The Veteran is competent to report such matters. See Layno, 6 Vet. App. at 469. However, the Board finds that such reports are not credible. Service treatment records reflect no reports or findings relating to any back injury or back problems, and on his September 1967 report of examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the spine and musculoskeletal system with no back problems noted. Even though during his August 2010 Board hearing the Veteran stated that his back pain had been tolerable until after separation from service, he testified that it was constant, and the lack of any notation or report of back problems in service is not consistent with his assertion of constant back pain from the time of his alleged injury and alleged treatment for such injury. Also, while the Veteran's back problems were reportedly so severe by 1970 that they required surgery for a ruptured disc, the earliest indication in the record of any back problem is the Veteran's January 2008 claim for service connection for a back disability, which was more than 40 years after his separation from service, and the Veteran has not identified or submitted any records that might verify any back surgery in 1970 or any treatment for problems prior to 2008. In this regard, while beginning in September 2008 the Veteran reported to VA medical providers having had back surgery 32 years prior, in listing his treatment related to his back problem on his application for benefits in January 2008, the Veteran stated that he had received treatment in service in 1967, and began receiving private treatment again in 2006. Furthermore, while the November 2010 private report of operation reflects that the Veteran had undergone several surgeries, with the initial surgery occurring "several years" prior to the second, this record does not indicate that the Veteran had any history of back surgeries dating back to 1970, 40 years prior. Given the above, the Board finds that the Veteran's report of back surgery and subsequent treatment shortly after service, as well as his assertions of ongoing back pain and back problems from the time of service, are not credible. Moreover, as no arthritis has been shown to have manifested to a degree of 10 percent within a year following discharge from service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable. Also, there is no competent medical evidence supporting the Veteran's claim; even assuming that his reported in-service back injury occurred while riding in a motorboat, there is no competent evidence suggesting a nexus between the Veteran's current back disability and any such injury. The lack of any competent nexus evidence in this case is particularly relevant, given that the earliest indication of any back problems in the record is dated more than 40 years after the Veteran's separation from service. See Maxson, 230 F.3d 1330 (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran might believe that his current back disability is medically related to his reported in-service injury, even in the absence of any continuity of symptoms or treatment since service. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, even assuming that his reported in-service back injury occurred, any such question of causation in this case extends beyond an immediately observable cause-and-effect relationship and would require medical expertise to answer. As such, the Veteran is not competent to address etiology in the present case. Accordingly, the Board finds that the claim for service connection for a back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a back disability is denied. ____________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs