Citation Nr: 1308256	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  10-43 581	)	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

Appellant represented by:	Florida Department of Veterans Affairs



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel



INTRODUCTION

The appellant served on active duty from September 1, 1964 to November 4, 1964 (2 months and 4 days).  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied service connection for a back condition.  Custody of the file was subsequently transferred to the RO in San Juan, Puerto Rico, which is currently VA's Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

There is no competent and credible evidence of a low back disability or injury during service.


CONCLUSION OF LAW

The requirements for establishing service connection for a claimed low back disability are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, the AOJ sent a letter to the appellant in October 2009 informing him of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA.  The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  

In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the 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).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant including service treatment records, service personnel records, post service treatment records, VA examination reports, and hearing testimony.  In that regard, the appellant reported having undergone back surgery in 1984 at St. Mary's Hospital in Rochester, New York, but that hospital notified the AOJ in writing that search of the files had failed to reveal any record of treatment at that facility.  The appellant has not identified any other VA or private medical providers potentially having records relevant to the issue on appeal.  The appellant has not been afforded a VA examination, but as detailed below there is no competent and credible evidence that an in-service disease or injury occurred.  Thus, examination is not required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam).
  
As discussed above, the VCAA provisions have been considered and complied with.  The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence.  The appellant was an active participant in the claims process by submitting evidence and argument; he was thus provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

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 Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Upon review of the record, the Board finds that the claim for service connection for a low back disability must fail because an essential element for establishing service connection - evidence of an in-service disease or injury - has not been met.  See Davidson, 581 F.3d 131

The appellant asserts he injured his back on "monkey bars" in service, that he was discharged early due to such injury, and that he has had chronic and continuing symptoms since service.

Service treatment records (STRs) show no indication of a back injury or complaint of back pain during the appellant's brief period of active service.  He had a separation examination in November 1964 in which he indicated by checkmark on a self-reported Report of Medical History that he had no history of musculoskeletal complaints and characterized his health as "Estoy perfectamentobien" ("I am in perfect health").  The corresponding clinical examination of the spine and other musculoskeletal areas were noted as "normal."  The appellant's PULHES profile at separation was 111111, showing a high level of overall fitness.

(The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991), for an explanation of the military medical profile system.)

The appellant submitted a claim in May 2008 requesting nonservice-connected pension for current disabilities including back (citing two surgeries), diabetes and hypertension, all originating in 1984.  The AOJ issued an administrative decision in June 2008 that denied entitlement to pension because the appellant did not have 90 days of active military service.

Thereafter, the appellant submitted the instant claim in March 2009, asserting entitlement to service connection for a low back injury incurred during training and that had led to his active duty discharge.  He also cited having had surgery twice since service.

In March 2009 the appellant submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) asserting he had been treated for back problems at St. Mary's Hospital (Rochester, New York) in January 1984 and December 1984.  The AOJ submitted a request to that facility for all relevant records, but a response from Unity Health Systems dated in July 2009 stated that a search of the files had failed to reveal any record of treatment at that facility.  The AOJ thereupon asked the appellant to provide any records from St. Mary's Hospital in his personal possession, but he responded in July 2009 that he had no personal copies of such records.

The AOJ issued a rating decision in August 2009 denying service connection based on a conclusion that the claimed disability was not incurred in or caused by service.

The appellant submitted a Statement in Support of Claim in August 2009 (within the appeal period) asking that his claim be re-opened.  The appellant argued that he had been discharged because his low back prevented him from meeting physical standards.  The appellant also requested he be given a VA physical examination.

The appellant presented to the VA primary care clinic in August 2008 to establish entitlement to care.  He complained of chronic low back pain since the 1960s, and reported having had two surgeries in the 1980s; no diagnosis or clinical impression was recorded.  A subsequent VA physical therapy note dated in May 2009 shows diagnosis of "neck and low back pain."  A VA primary care note in August 2009 shows continued complaint of low back pain.  The clinical impression was "chronic back pain."  The appellant's VA active problems list was updated to include Chronic Low Back Pain under the International Statistical Classification of Diseases, 9th Revision, and Clinical Modification (ICD-9-CM-74.2).  A VA primary care note in November 2009 shows the appellant presented complaining of continued lower back pain.  The clinician stated a herniated nucleus pulposus (HNP) was suspected; magnetic resonance imaging (MRI) of the region would be considered if the symptoms did not improve.  

The AOJ issued the instant rating decision on appeal in November 2009, denying service connection based on a determination that the appellant had not shown a link between the current low back condition and service.

In his Notice of Disagreement (NOD), received in December 2009, the appellant asserted he injured his back in a fall off the "monkey bars" while performing required physical training (PT), that he was treated in the hospital for such injury, and that he was discharged from service due to that injury.

In his substantive appeal, received in October 2010, the appellant argued he should be granted service connection based on continuity of symptoms, per 38 C.F.R. § 3.303(b).  

On review, the Board notes that there is no competent and credible evidence of the Veteran's claimed in-service injury, nor is there evidence of any low back disability during service.  

The Board notes the Veteran is competent to report symptoms or events he experience in service.  Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006).  However, competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may 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).  

Here, the appellant asserts he was injured falling from the horizontal ladder ("monkey bars") in service.  However, his account of an in-service low back injury resulting in his discharge from service is belied by the other evidence of record, including his own statements at the time of his separation examination and the PULHES score showing that in fact he met the physical standard for retention in service.  Indeed, his physical examination at separation showed a normal spine, and the Veteran himself stated that he was in perfect health at the time of separation on the Report of Medical History.  In fact, the only positive response on that form is his report of headaches.  He denied having any injury or illness other than those noted and denied having medical treatment during the past 5 years.  Thus, his current contention of suffering a back injury during service with back pain continuing to the present is inherently inconsistent with his statements at the time of his discharge as well as the medical findings at that time.  Moreover, when filing for nonservice connected pension, he listed the onset date of his back disability as being in 1984.  Finally, his current assertions are being made more than 40 years after his discharge from service.  Accordingly, the Board finds that the Veteran's assertions as to experiencing a low back injury during service, with pain since that time, are not reliable or credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  

As the Board finds the Veteran's assertions as to the origins of his claimed low back disorder are not credible, the necessary in-service element to support a claim for service connection has not been established in the case.  Thus, in the absence of competent and credible evidence of an in-service injury or disease, there is no basis upon which service connection can be established.  

Accordingly, the Board concludes that the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a low back disability is not warranted.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for a low back disability is denied. 


____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs