Citation Nr: 1308708 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 04-25 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Michigan Army National Guard from September 1956 to November 1983. He had a period of active duty as part of the Army National Guard of the United States from July 24, 1967 to August 1, 1967. He was placed on inactive National Guard (ING) in November 1982 and assigned to retired reserve in November 1983. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for a back disability. In February 2007, the Board denied the claim of service connection for a back disability. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2009 memorandum decision, the Court set aside the Board's February 2007 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In September 2009 and May 2012, the Board remanded this matter for further development in compliance with the Court's decision. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's current back disability did not have its clinical onset in service, was not exhibited within the first post service year following his August 1, 1967 separation from active duty, and is not otherwise related to active duty. CONCLUSION OF LAW The Veteran's current back disability was not incurred or aggravated in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101(2), (24), 1101, 1110, 1112, 1113(b), 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.6(a), 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran 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). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in March 2002, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for a back disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a January 2010 letter. The timing deficiency with regard to this letter was cured by readjudication of the claim in an October 2011 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, all of the identified relevant post-service VA treatment records, and some of the identified relevant post-service private medical records. In addition, the Veteran was afforded a VA examination to assess the nature and etiology of his current back disability and opinions have been obtained concerning the etiology of this disability. In its September 2009 and May 2012 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things: obtain any additional relevant VA treatment records from the VA Medical Center in West Palm Beach, Florida (VAMC West Palm Beach) dated since August 2004; attempt to obtain any relevant private treatment records from Dr. Stolburg and Mercy Hospital dated in 1972 if appropriate release forms were submitted; verify any dates and types of service for the period inclusive of the Veteran's hospitalization in 1972; afford the Veteran a VA examination to assess the nature and etiology of his current back disability; and obtain opinions as to the etiology of his current back disability. As explained above, all relevant identified VA treatment records (including records from VAMC West Palm Beach dated since August 2004) have been obtained and associated with the claims file. In October and December 2009, the AOJ contacted the Michigan State Adjutant General and the National Personnel Records Center (NPRC) and requested information pertaining to the Veteran's service, including in 1972. Such information has been obtained and associated with the claims file. Also, the Veteran was afforded a VA examination in October 2011 and opinions were obtained concerning the nature and etiology of his claimed back disability in October 2011 and June 2012. In a January 2010 letter, the Veteran was asked to complete the appropriate release form so as to allow VA to obtain any identified relevant private treatment records, including from Dr. Stolburg and Mercy Hospital. Copies of the release form (VA Form 21-4142) were included with the letter. In August 2010, the Veteran was contacted by telephone concerning the January 2010 request. He informed the AOJ that Dr. Stolburg had possibly passed away, but that he would submit the appropriate release form so as to allow VA to obtain treatment records from Mercy Hospital (which had changed names). A signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for treatment received for a back injury from Allegiance Health Services (Allegiance)/Dr. Stolburg in July 1972 was received in September 2010. In March 2011, the AOJ contacted Allegiance and requested all available records pertinent to treatment for a back injury dated since July 1972. Allegiance responded that the Veteran's signed authorization form was too old under Michigan law and that the exact dates of treatment needed to be identified for any records dated in the 1970s. In an April 2011 letter, the AOJ informed the Veteran of the efforts that had been taken to obtain the treatment records from Allegiance, asked him to complete a new VA Form 21-4142 to allow VA to obtain such records, asked him to submit any records in his possession, and informed him that his claim would possibly be decided after 30 days if additional evidence was not received. The Veteran subsequently submitted some treatment records from Allegiance (formerly W.A. Foote Memorial Hospital), but did not otherwise respond to the April 2011 letter, did not submit any additional completed VA Form 21-4142, and did not identify any specific dates of additional treatment received at Alliance. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). As the Veteran did not submit an additional VA Form 21-4142 for treatment received at Alliance and did not otherwise respond to the April 2011 letter, any further efforts to obtain treatment records from Alliance would be futile. 38 C.F.R. § 3.159(c)(2). The February 2009 Court decision which set aside the Board's February 2007 decision was premised on VA's failure to adequately attempt to obtain treatment records from Mercy Hospital (i.e. Alliance) dated in 1972. Thus, the AOJ substantially complied with all of the Board's relevant September 2009 and May 2012 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claim being decided herein. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). In other words, service connection is available for diseases or injuries incurred in or aggravated by ACDUTRA and injuries incurred in or aggravated by INACDUTRA (including an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *6 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the presumption of service connection under 38 C.F.R. § 3.309(a) for certain chronic disabilities that manifest to a compensable degree within one year of separation from service is only applicable to the Veteran's period of active duty service with the National Guard of the United States from July 24, 1967 to August 1, 1967. Specifically, the Court has held that a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA can never be entitled to a "presumption of service connection." See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Such a presumption is not possible in such circumstances because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. Id. As the Veteran's only service during the periods other than from July 24, 1967 to August 1, 1967 was with the Army National Guard, to include periods of ACDUTRA and INACDUTRA, presumptive service connection for his current back disability is not warranted under any circumstance (to include under the provisions pertaining to chronic diseases) during the periods of service other than from July 24, 1967 to August 1, 1967. Id. Medical records reveal that the Veteran has been diagnosed as having various back disabilities. For example, the October 2011 VA examination report includes a diagnosis of degenerative disc disease of the lumbar spine. Thus, a current back disability has been demonstrated. The Veteran contends that he injured his back during his period of active service with the National Guard of the United States in 1967 while serving in Detroit during the riots which occurred at that time. During such active duty service, he reportedly injured his back when he fell off a truck and back symptoms, including pain, have persisted ever since that time. The Veteran is competent to report symptoms of a back disability, such as pain, as well as a continuity of symptomatology. However, his reports must be weighed against the objective evidence and their credibility must be assessed. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. The Veteran reported on a January 1976 report of medical history for purposes of entrance into the Army National Guard that he had experienced a severe back strain in 1972. He was treated at Mercy Hospital for 2 weeks and he reportedly experienced a complete recovery. Treatment records from W.A. Foote Memorial Hospital (formerly Mercy Hospital) reflect that the Veteran was treated for back problems at that facility from July to August 1971. At that time, he reported back pain and spasms. He reportedly had experienced some intermittent back difficulties for years. X-rays of the back were normal and the Veteran was diagnosed as having a back strain. Service personnel records do not reflect that the Veteran was on active duty, ACDUTRA, or INACDUTRA at the time of his back strain in July and August 1971, and the Veteran has not reported otherwise. There is no evidence of any other complaints of or treatment for a back disability or symptoms associated with such a disability during any period of active duty service, ACDUTRA, or INACDUTRA in the Veteran's service treatment records and examinations conducted in February 1972, January 1976, and February 1980 did not reveal any back abnormalities. If a chronic disease, such as arthritis, is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). There must, however, be sufficient observations in service to identify the disease entity. Id. As discussed above, there is no evidence showing any diagnosed arthritis in service and the Veteran has not reported arthritis during any period of service. Hence, service connection cannot be granted on this basis here. The objective evidence otherwise indicates that the Veteran's current back disability did not manifest until several years after his separation from active duty service in August 1967. The first post-service clinical evidence of back problems following his 1967 service with the National Guard of the United States are the treatment records from W.A. Foote Memorial Hospital dated from July to August 1971 which include reports of back pain and spasms and intermittent back difficulties "for years" and a diagnosis of a back strain. There is no clinical evidence of any earlier back symptoms following the Veteran's 1967 service. Furthermore, the Veteran has provided varying statements as to the history of his back problems. For example, he has contended on various occasions that back symptoms (including pain) have persisted ever since his reported fall from a truck in 1967. However, he reported on the January 1976 report of medical history that he experienced a complete recovery from the back strain which was treated at Mercy Hospital (i.e. W. A. Foote Memorial Hospital) and that he was not experiencing nor had he ever experienced "arthritis, rheumatism, or bursitis," "bone, joint, or other deformity," or "recurrent back pain." Moreover, although the Veteran reported at that time that his back strain had occurred in 1972, the treatment records from W. A. Foote Memorial Hospital reflect that the strain occurred in 1971. Also, a VA primary care treatment note and a VA X-ray report, both dated in September 2002, include reports of a 40 year history of back pain (i.e. since approximately 1962). In light of the absence of any objective evidence of complaints of or treatment for back problems during any period of active duty service, ACDUTRA, or INACDUTRA, the fact that the Veteran's February 1972, January 1976, and February 1980 examinations did not reflect any back abnormalities, and his inconsistent and contradictory statements concerning the history of his back symptoms, the Board concludes that his reports concerning the history of his back symptoms, including those of a continuity of symptomatology since service, are not credible. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis. There are conflicting medical opinions as to the etiology of the Veteran's current back disability. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). In statements dated in August 2009 and November 2012, Gale L. Kranz, D.C. opined that it was likely ("more likely than not") that the Veteran's repeated severe exacerbations of his chronic back problem were primarily related to his fall from a truck in 1967. This opinion was based on Dr. Kranz's 35 years of experience in treating spinal problems and the fact that he had treated the Veteran for severe back pain, muscle spasms, and sciatic neuralgia on many occasions during the previous 32 years (i.e. since approximately 1977). Moreover, the Veteran only occasionally experienced temporary minor back discomfort when he was younger and had little back problems until he fell off a military truck onto a cement floor in 1967. This incident more than likely sprained soft tissue, with even a possible hairline fracture of the vertebrae as evidenced by the severe back pain, muscle spasms, and large contusion on his back. As a result of such an injury and having no treatment or rest at the time due to the confusion of the Detroit riots, it was possible that the soft tissue, nerves, and bony structures healed up wrong and left scar tissue and joint displacement. Such problems grew worse over time and led to frequent exacerbations from any abnormal motion or slight strain on the back. The physician who conducted the October 2011 VA examination opined that the Veteran's current back disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by his claimed in-service injury, event, or illness. He explained that although the Veteran reported that he injured his back in 1967 during his active duty service and that he had experienced chronic back pain ever since that time, a review of his service treatment records did not support his contention of chronic back pain occurring after a 1967 fall injury during a riot. For example, the February 1972, January 1976, and February 1980 examinations all reflected a normal spine. Also, the Veteran denied a history of recurrent back pain on the January 1976 report of medical history. In June 2012, the physician who conducted the October 2011 VA examination re-reviewed the Veteran's claims file and again opined that his current back disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by his claimed in-service injury, event, or illness. This opinion was based on the fact that the Veteran was on active duty from July to August 1967 during the Detroit riots and that there were no records reflecting ongoing back pain immediately following his 1967 service. Although he was hospitalized for 2 weeks in 1972 at Mercy Hospital due to a severe back strain, the nature or precipitating causes of this strain were not noted. Dr. Kranz's August 2009 and November 2012 opinions are of limited probative value because they are, at least in part, based on an inaccurate history. Specifically, these opinions are based on the Veteran's reports of a continuity of back symptomatology in the years since his 1967 active duty service. For example, Dr. Kranz reasoned that the problems potentially caused by the 1967 fall "grew worse over time and led to frequent exacerbations" of back problems. However, as explained above, the Veteran's reports of a continuity of symptomatology are deemed to be not credible. Thus, to the extent that the August 2009 and November 2012 opinions are based upon such reports, these opinions are based upon an inaccurate history and of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The October 2011 and June 2012 opinions, however, were based upon an examination of the Veteran and a review of his medical records and reported history (including the lay evidence of back symptoms since service) and are accompanied by specific rationales that are not inconsistent with the evidence of record. The Board notes that the rationale that accompanies the June 2012 opinion refers to treatment at Mercy Hospital for a back strain in 1972. Treatment records reflect that such treatment actually occurred in 1971. However, the examiner's rationale that there were no records of ongoing back pain immediately following the Veteran's 1967 duty is nonetheless accurate. In his December 2012 letter, the Veteran's representative contended that the June 2012 rationale was not accurate because the Veteran had reported continuous back pain ever since his 1967 injury. He claimed that the physician who provided the June 2012 opinion did not adequately consider such reports of a continuity of symptomatology. While the June 2012 physician did not explicitly acknowledge and discuss the Veteran's reports of a continuity of back symptomatology in the years since service in formulating his opinion, such reports are not credible and an opinion based on such an inaccurate history would be inadequate. See Id. Thus, the October 2011 and June 2012 opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran has expressed his belief that his current back disability is related to his back injury in service in 1967. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current back disability is related to a specific injury in service, as opposed to some other cause. Rather, it would require medical expertise to evaluate the disability, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). There is no other evidence of a relationship between the Veteran's current back disability and service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology. Thus, the preponderance of the evidence is against a finding that the Veteran's current back disability is related to service, manifested in service, or manifested within a year after his August 1967 separation from active service with the National Guard of the United States. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for a back disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs