Citation Nr: 1308331 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-23 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from June 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In March 2009 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is available and has been associated with the claims file. The claim was previously before the Board in June 2009 and September 2011. On both occasions it was remanded to the RO/AMC for further development. The development requested in those remands has now been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have a back disorder which began in service or has been shown to be causally or etiologically related to service or to a service-connected disorder. 2. The Veteran does not have a neck disorder which began in service or has been shown to be causally or etiologically related to service or to a service-connected disorder. 3. The Veteran does not have a left foot disorder which began in service or has been shown to be causally or etiologically related to service or to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection for a left foot disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed entitlement to service connection for a back disorder, a neck disorder and a left foot disorder. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Board makes particular note that VA amended its regulations pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). That amendment codifies the ruling in Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Id. However, the Veteran filed his claim in March 2006. As such, the revisions to 38 C.F.R. § 3.310 do not apply. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran first claimed entitlement to service connection for the conditions at issue in this appeal in March 2006. In an October 2006 rating decision the RO denied entitlement to service connection for those conditions. The Veteran submitted a Notice of Disagreement (NOD) in November 2006. The RO issued a Statement of the Case (SOC) in May 2007 and the Veteran filed a Substantive Appeal (VA Form 9) in June 2007. The claim first came before the Board in June 2009, at which time it was remanded for further development. The claim was again remanded in September 2011. The development requested in those remands has been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran's claim is once again before the Board for appellate review. The relevant evidence of record on the claims currently on appeal includes service treatment records, post-service private treatment records, VA treatment records, VA examination reports and both written and oral statements from the Veteran. Service treatment records from September 1970 indicate that the Veteran was advised to soak his left leg and avoid prolonged walking for 24 hours. During his February 1971 separation examination the Veteran denied having any problems with his spine or lower extremities. The Veteran was afforded a VA examination in April 1971, shortly after his release from active service. During that examination the examiner found that there were no limitations with regard to the neck and back and no evidence of any foot abnormalities. VA treatment records from April 1989 indicate that the Veteran was prescribed pain medication for left foot pain after having had a bone spur removed. Private treatment records from April 1992 indicate that the Veteran sustained a trauma to his left ankle. Radiographic imagery was entirely negative. Records from November 1992 show that the Veteran denied having any low back pain or leg pain. Physical examination revealed that cervical, upper and lower extremity range of motion was full without any hot, swollen or tender joints. The Veteran's gait was normal. During a VA examination performed in January 1993 the Veteran again denied having any significant neck pain. He also denied having any lower extremity complaints. Physical examination revealed full range of motion of the neck and a normal gait. Private treatment records from November 1993 indicate that the Veteran reported neck and back pain. Radiographic imagery was entirely negative for any abnormalities. Records from May 1998 indicate that the Veteran reported hurting his back lifted a 50 to 60 pound satchel. The evaluating provider's assessment was lumbar strain. Records from the following month indicate that the Veteran reported a 95 percent improvement. A series of private treatment records from a private podiatrist dated from December 1996 to January 2005 indicate that the Veteran was treated for a left foot metatarsal deformity which was found to be congenital. A condylectomy was performed in February 1997. The Veteran was also treated for hyperkeratotic lesions, hammertoe, onychocryptosis, a keratoma, tinea pedis and ingrown toenails. Private treatment records from March 2003 indicate that the Veteran was involved in a motor vehicle accident and injured his neck. Significant straightening of the cervical spine was observed, along with some arthritis in the lower portion. Records from August 2003 and September indicate that the Veteran reported pain in his lumbar spine dating back to March 2003. Records from November 2003 indicate that the Veteran was participating in a physical therapy program and felt that this back pain was 90 percent better. Subsequent records from December 2003 show that the Veteran reported neck and lower back pain. A bone scan was provided and the examiner's impression was that the Veteran had some minimal increased activity within the lower cervical spine that was likely degenerative in nature. Subsequent records show continued reports of back and neck pain, with radiographic imagery from April 2004 showing a generalized disc bulge with bilateral facet and ligamentum hypertrophy at L5-S1 and a minimal generalized disc bulge at L4-L5. Additional private treatment records from April 2004 show that the Veteran stated that his back and neck pain began as a result of a motor vehicle accident in March 2003. Records from May 2004 indicate that the Veteran stated that his back pain was due to repetitive picking up of mail. At that time the Veteran reported that his back pain began in April 2004 after a lifting episode at work. Radiographic imagery showed minimal degenerative changes of the lower lumbar spine and a diagnosis of acute lumbar strain was made. A disability evaluation ordered by the Social Security Administration indicates that the Veteran reported being involved in a motor vehicle accident in March 2002, during which he injured his cervical, thoracic and lumbar spine. Other records from the Social Security Administration consist of VA and private treatment records discussed herein. Subsequent records from 2005 show continued treatment for back and neck pain. VA treatment records from June 2005 indicate that the Veteran underwent an MRI of his cervical spine. The evaluating provider's impression was multiple levels of degenerative disc disease with small focal protrusions, spine canal stenosis from C3-4 through C6-7 and multiple levels of neural foraminal narrowing. In his June 2007 Substantive Appeal (VA Form 9) the Veteran stated that he had a foot condition in service that was documented and has been identified as having bone spurs. He also stated that he received in-service therapy for his lower back while in service and had a fall that was records as a back sprain. In March 2009 the Veteran testified at a hearing before the undersigned Veterans Law Judge. During that examination the Veteran stated that he injured his left foot in service during basic training and that he was diagnosed with flat feet that got worse over the years. He stated that after service he worked in construction and for the Post Office and that this put pressure on his left foot that resulted in bone spurs. With regard to his back and neck disorders, the Veteran stated that he injured his back and neck in an in-service fall in either 1969 or 1970. He stated that he injured his hand in the same incident and that ever since that time he has had worsening back problems. In a September 2009 written statement an apparent friend of the Veteran stated that she has observed the Veteran's inability to do some of the things he used to because of severe back and neck pain. In February 2010 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran reported onset of left foot pain dating back approximately 15 years. The Veteran also reported neck pain with onset in 2000, approximately two to three years prior to a motor vehicle accident in 2003. The examiner diagnosed the Veteran with lumbar spondylosis and cervical disc disease and found that those conditions were not related to events that occurred in service. In so finding, the examiner observed that there was no evidence of any related in-service injury and that the Veteran's separation examination was negative. Moreover, he noted that the Veteran stated that he developed low back pain and neck pain many years after separation from service and that the Veteran was involved in a motor vehicle accident in 2003. The examiner also found that the Veteran's left foot condition is not related to events that occurred in service, citing the lack of any relevant findings in service treatment records. In an April 2012 addendum to that report the examiner also found that the Veteran's neck and back conditions were not secondary to the Veteran's service-connected carpal tunnel syndrome as carpal tunnel syndrome is not an etiology for those conditions. Moreover, the examiner stated that the Veteran's foot condition is not related to events that occurred in service as the Veteran was not seen for problems relating to his left foot in service and had a negative foot examination during his separation physical in 1971. The examiner noted that the Veteran developed a bone spur after separation from service and self-reported that his foot pain began approximately 20 years after his separation from service. Moreover, she observed that treatment records from 1992 indicated that the Veteran had no difficulty walking. After a thorough review of the entirety of the evidence of record the Board finds that entitlement to service connection for a neck disorder, back disorder and left foot disorder is not warranted. As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. The Veteran's claims of entitlement to service connection fail with respect to the third element, the need for evidence of a nexus between a current disability and an in-service incurrence of injury. In so finding, the Board notes that the VA examination report and addendum from February 2010 and April 2012 indicates that the Veteran's current neck, back and right foot conditions are not related to any injury sustained in service or to any service-connected disorder. This is highly probative evidence against the Veteran's claim. In contrast, the only evidence supporting an etiological relationship is the Veteran's own statements. The Veteran is competent to testify as to the events he experienced in service, including having injuries to his back, neck and foot in service. He is also competent to testify as to his in-service and post-service symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, individuals without training are not competent to provide evidence as to more complex medical questions. The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as a relationship between an in-service injury and his current neck, back and foot conditions. Even according the Veteran's assertions as to etiology some probative value, they are outweighed by the objective medical evidence indicating that his neck, back and foot conditions are not related to his period of active service, any injury sustained therein or any service-connected disorder. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board also notes that while the Veteran is competent to testify as to his symptomatology, competency is very different than credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As noted above, the Veteran has made assertions as to in-service symptomatology and post-service symptomatology that are directly contradicted by evidence in the record. For example, during his hearing the Veteran reported that he injured his back, neck and foot in service and that he has had consistent problems with those conditions since that time that have continued to the present. Post-service treatment records indicate that the Veteran first started having trouble with his back, neck and foot many years after service, and during the February 2010 VA examination the Veteran also reported that his neck, back and foot did not bother him until many years after service. The fact that the record shows that the Veteran has been inconsistent regarding his reported symptomatology weighs greatly against his credibility. His failure to be a strong historian, particularly in light of the fact that many years have passed since the reported in-service incident, is persuasive in weighing against his credibility. In sum, with regard to credibility the Board places the greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes than it does on his more recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994); see also Cartright, 2 Vet. App. at 25. Regardless of whether the Veteran is purposefully or unintentionally providing a false history, the ultimate conclusion is that his statements pertaining to his post-service symptomatology are simply not credible. Because of the inconsistencies mentioned above, the Board finds that the Veteran's allegations have limited, if any, probative value. Even accepting that the Veteran injured his neck, back and left foot in service, there is no credible evidence showing that any current condition related to his neck, back and left foot date back to his time in service. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised of the need to submit medical evidence of the existence of the disabilities claimed and a relationship between those disabilities and his period of service. The Board has considered application of the benefit-of-the doubt doctrine under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. The most persuasive and probative evidence of record fails to demonstrate that the claimed conditions are related to the Veteran's period of active service or to a service-connected disorder. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for a neck disorder, back disorder or left foot disorder. As there is a preponderance of evidence against the claims, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. Duty to Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of letters from the RO to the Veteran dated in June 2006, September 2006 and September 2009. . See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded a VA examination on the issues under review during the course of his appeal. The report from that examination reflects that the examiner reviewed the Veteran's medical records, recorded his current complaints, conducted an appropriate physical examination and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a left foot disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs