Citation Nr: 1308153 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-37 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to February 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Although the Veteran had requested a Travel Board hearing, he withdrew this request in June 2012. In August 2012, the Board remanded the case for additional development. To better represent the full scope of his allegations, the Board has recharacterized the Veteran's claim seeking service connection for an "upper back" disability to a claim seeking entitlement to service connection for a back disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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). FINDINGS OF FACT 1. A current neck disability did not have its onset in active service and is not the result of a disease or injury incurred in active service. 2. A current back disability did not have its onset in active service and is not the result of a disease or injury incurred in active service. 3. A current right leg disability did not have its onset in active service and is not the result of a disease or injury incurred in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for a right leg disability have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable 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 notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's August 2008 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the August 2008 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal. The RO has obtained all of the Veteran's available service treatment records and identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. While the Veteran's service treatment records appear complete, they have been partially damaged by a fire that occurred at the National Personnel Records Center in St. Louis, Missouri. Specifically, the edges on some of the Veteran's service treatment records have been burned. Under these circumstances, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not, however, 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). Pursuant to the Board's August 2012 remand, the RO was directed to schedule the Veteran for a VA examination to obtain a medical opinion addressing the etiology of his claimed neck, back, and right leg disabilities. A notation in the claims file indicates that he failed to report for a VA examination scheduled for him in November 2012. 38 C.F.R. § 3.159(c)(4). The consequences for failing to report for a scheduled examination were noted in a letter sent to the Veteran in September 2012, and a notation in the claims file indicates that the VA medical center had used the Veteran's mailing address of record. A subsequent November 2012 report of contact reveals that the RO made multiple attempts to contact the Veteran via telephone regarding his failure to attend the scheduled medical examination. In addition, his failure to attend the November 2012 VA examination was noted within the RO's January 2012 supplemental statement of the case. At no point has the Veteran provided any reason or good cause for his failure to attend the examination scheduled for him. Moreover, he has not requested that a new VA examination be scheduled. As such, scheduling another examination in this matter is not required, and the Board shall consider the Veteran's claims based upon the evidence of record. 38 C.F.R. § 3.655 (2012). In making this determination, the Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As noted above, the Board remanded this matter in August 2012 for additional evidentiary development. The Board's remand directed the RO to obtain updated treatment records concerning the Veteran's neck, back, and right leg disabilities; and to schedule him for a VA examination to address the etiology of these disabilities. As noted above, the Veteran was scheduled for the appropriate VA examination which he failed to attend; and a review of the Veteran's claims file and Virtual VA file revealed that the Veteran's post service treatment records have been updated. Accordingly, the Board's remand directives have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. 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 affects the outcome, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is listed as a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, supra. 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. The Veteran served on active duty in the Army from March 1955 to February 1958. The Veteran's service personnel records indicate that he was involved in a motor vehicle accident in December 1956. A motor vehicle accident report noted that the Veteran was driving a 21/2 ton Studebaker truck when it crashed into an approaching Ford truck. The injured personnel section of the report noted that a passenger in the other truck had suffered minor lacerations and abrasions. No other individuals were identified as having been injured in the crash. Included in the reports related to the accident investigation was a physician's December 1956 statement noting that the Veteran was examined soon after the accident. Specifically, the examining physician noted that the Veteran had been examined and that his coordination, gait and intellectual reactions were within normal limits; and that his breath was alcoholic. The Veteran's service treatment records are completely silent as to any treatment or complaints of a neck, back or right leg disability. Moreover, his separation examination, the date of which is not legible, listed normal findings concerning the Veteran's neck, spine, and lower extremities. Following his separation from service, an August 1999 private treatment report noted the Veteran's complaints of low back and right leg pain. The report noted that the Veteran had not seen a doctor for this problem, and indicated that he had a history of backaches. A private treatment summary letter from D.D., D.C., on the following day in August 1999, noted that the Veteran had reported with acute low back pain distress, "which he states has been coming on for one week and has more recently began to include right lower extremity pain." The report noted that the Veteran was to be treated conservatively. A March 2005 private treatment report noted the Veteran's complaints of moderate right shoulder, low back and bilateral hip pain. The Veteran reported that he had fallen off of a ladder two months earlier. A May 2006 private treatment report noted the Veteran's complaints of moderate right shoulder, low back, and neck pain. A March 2007 private treatment report noted the Veteran's complaints of right shoulder pain radiating to the right elbow. The report noted that this was not due to an accident. It also noted that the Veteran had previously received chiropractic care for low back pain seven years earlier. A March 2007 private treatment report noted that the Veteran was a new patient for cervical spine care. A private x-ray examination of the cervical spine revealed a loss of the normal anterior curve; narrowing of the weight bearing disc spaces at C6-C7; and lateral flexion misalignment of C7-T11. In July 2008, the Veteran filed his present claim seeking service connection for neck, back and right leg disabilities. He attributes each of these disabilities to his inservice truck accident in December 1956. On his December 2008 notice of disagreement, the Veteran stated that he "was hospitalized for 10 days after being removed from underneath my two and half ton Army Vehicle." He also indicated that he sustained neck, back and right leg injuries "of which I have suffered periodically." The Veteran is competent to state that he was involved in a motor vehicle accident, and that he injured his neck, back and right leg during this incident. The Board, however, finds the probative value of the Veteran's statements to be outweighed by the other evidence of record. While the occurrence of the accident is well documented in his service personnel records, there is no indication that he incurred any injuries. The accident report did not list the Veteran as having been injured during this incident. It did, however, record injuries incurred by another individual. Moreover, a physician's statement, shortly after the accident, noted that the Veteran had been examined and that his coordination, gait and intellectual reactions were within normal limits; and that his breath was alcoholic. No reference was made to a neck, back or right leg disability. Even accepting his allegations of neck, back and right leg disabilities as a result of his inservice accident, no continuity of symptomatology is shown. The Veteran's service treatment records are completely silent as to any treatment for or complaints of a neck, back or right leg disability. In addition, his separation examination listed normal findings concerning the Veteran's neck, spine, and lower extremities. The first post service complaint or reference of any kind referring to a neck, back or right lower extremity disability was in August 1999, over 40 years after the Veteran's discharge from the service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). None of the post service treatment records reference any history of an inservice motor vehicle accident or a history of ongoing neck, back or right leg pain beginning decades earlier. The August 1999 treatment summary letter noted the Veteran's complaints of low back pain, "which he states has been coming on for one week and has more recently began to include right lower extremity pain," and a March 2005 treatment note indicated the onset of right shoulder, low back, and bilateral hip pain following a fall from a ladder two months before. For these reasons, the Board finds that the Veteran's contentions of having ongoing neck, back, and right lower extremity pain since his discharge from the service are inconsistent with his contemporaneous statements and are not supported by the evidence and are therefore not credible. Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) ("[D]efinitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). The Veteran's statements, made in conjunction with his present claim, do not "hang together" in a consistent manner with the other evidence of record, thereby rendering them less believable and convincing then other evidence relevant to the onset of his current neck, back and right leg disabilities. Id. In conclusion, the Board finds the absence of any neck, back, or right leg disability having been noted in the Veteran's service treatment records; the normal examination at the time of his separation from service; the extensive passage of time following the Veteran's discharge from the service without any neck, back or right leg disability treatment having been shown; and the short term history of various neck, back and right leg pains noted in the post service treatment records, to be far more probative on the issue of whether he incurred a chronic neck, back, or right leg disability during service. See Jandreau, 492 F. 3d at 1372. Accordingly, the preponderance of the evidence is against the Veteran's claims; there is no doubt to be resolved; and service connection for a neck, back or right leg disability is not warranted. ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a right leg disability is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs