Citation Nr: 1308845 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 08-10 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral eye disorder. 3. Entitlement to an initial evaluation beyond 30 percent for ischemic heart disease. 4. Entitlement to an initial evaluation beyond 10 percent for hypertension. 5. Entitlement to an initial evaluation beyond 10 percent for cluster headaches. 6. Entitlement to an initial evaluation beyond 10 percent for tinnitus. 7. Entitlement to an initial evaluation beyond 10 percent for gastroesphageal reflux disease. REPRESENTATION Appellant represented by: David Russotto, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1973 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2009, the Board reopened the claim for service connection for a low back disorder and remanded the claim for additional development. In January 2011, the claim was again remanded by the Board. The Board is also satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the RO obtain additional records as mandated by the Board. The case has been returned to the Board and is ready for further review. The issues of entitlement to service connection for a bilateral eye disorder, entitlement to an initial evaluation beyond 30 percent for ischemic heart disease, entitlement to an initial evaluation beyond 10 percent for hypertension, entitlement to an initial evaluation beyond 10 percent for cluster headaches, entitlement to an initial evaluation beyond 10 percent for tinnitus and entitlement to an initial evaluation beyond 10 percent for gastroesphageal reflux disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A current low back disability did not have its onset in active service and is not the result of a disease or injury incurred in active service. CONCLUSION OF LAW The criteria for service connection for low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In a claim to reopen, such as the Veteran's claim of service connection for a low back disorder, a Veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceed to evaluate the merits of that claim. See 38 U.S.C.A. § 5103A(f) (West 2002). Once the claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a Veteran's claim for benefits under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). Therefore, if a claim is reopened, VCAA standard of review and duty to notify does not apply to the merits of the underlying claims unless the claim is reopened. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Here in May 2007, the Veteran was provided with notice regarding new and material evidence to reopen his claim as well as notice regarding service connection for a low back disorder and what the evidence must show to support a service connection claim. As such, the Veteran was adequately advised of the basis for the previous denial and of what evidence would be new and material to reopen the claim and he was also notified regarding direct service connection. As noted above, under the VCAA, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, as was done here, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002). In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA treatment records, Social Security Administration records and the available private treatment records. The Board notes that an attempt to obtain records from the Roanoke Clinic was unsuccessful as the facility informed the RO in an April 2010 letter that while the Veteran was treated from 1977 to 1993, the records had been destroyed. The Veteran was afforded a VA examination in conjunction with this claim. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered and appropriate diagnosis consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. In this regard the Board notes that in May 2010, the Veteran stated that he wanted to appear before the Board; however upon a request from the RO for clarification, he indicated in December 2010 that he did not wish to appear at a hearing. Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 Evidence The Veteran's service treatment records show that at enlistment in April 1973, he denied recurrent back pain and clinical evaluation of the spine was normal. His separation examination dated ion July 7, 1977 showed no spine abnormality. On July 11, 1973 and on July 12, 1973, he was seen for low back pain which was diagnosed as muscle strain. During the July 11, 1973 treatment it was noted that he injured his back boxing three days prior. On the 12th of July it was noted that he had injured his back boxing 4 days prior. After service, the record reflects the Veteran underwent treatment at a private clinic after injuring his back lifting meat in December 1989. Lumbar sprain was diagnosed. In February 1991 he was also treated for back pain after a lifting injury at work and lumbar strain with sciatica was diagnosed. VA treatment records beginning in 2005 show that the Veteran was receiving treatment for low back pain with a diagnosis of degenerative disc disease. (See, e.g. September 2006 VA MRI). In a July 2007 statement, a VA examiner reported that the Veteran had an injury in service in 1976/1977, lifted a heavy object 100 pounds his feet slipped and he fell back on a rail. It was noted that the Veteran was treated and prescribed muscle relaxer. The Veteran reported improvement but that he had back pain off and on. The examiner reported that in 2005 an MRI showed a disk problem. The examiner stated that to her best guess the problem low back pain likely started since service. The Veteran underwent a VA QTC examination in January 2008. His history was noted. The Veteran reported that he had multiple lumbar herniated nucleus pulposis lesions first diagnosed in 1976. He said these were discovered by an MRI. The examiner noted that however MRI technology was not available in 1976. The examiner stated that the MRI in 2006 showed degenerative disc disease in the lumbar spine with a herniated nucleus pulposus. The Veteran reported that he originally injured his back in 1976 after a slip and fall. He reported that he was lifting an object weighting approximately one hundred pounds and fell backward striking his back on a rail. He reported being treated and that the pain resolved but that he had periodic recurrences of pain over the next 32 years. The Veteran's medical records were reviewed and he was examined. The examiner diagnosed lumbar degenerative disc disease based on physical examination and radiographic findings today. The examiner opined that since no diagnostic studies were performed in 1977 and since findings of the medical examination at that time as documented in the records indicate the Veteran had muscle strain of the low back, it is less likely than not that the inservice injury was the cause of the current disability. He went on to state that more likely than not, the Veteran's long standing morbid obesity played a much more important role in the development of his lumbar degenerative disc disease and ultimate lumbar herniated nucleus pulposus. (The Veteran's weight was noted as 314 pounds on examination). The examiner noted that the relationship between morbid obesity and musculoskeletal complaints including lumbar degenerative disc disease has been well established in the medical literature. Discussion As noted, in order to establish service connection for a claimed disability, there must be 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 current disability. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Based on a review of the complete evidence of record, the Board concludes that the competent and probative evidence of record is against granting the Veteran's claim of entitlement to service connection for a low back disorder. In this case, the first prong of Horn, a current disability, is met. As to the second prong, service treatment records show treatment for low back complaints. Thus, the second prong of Horn has been established in this case. With regard to the third prong of Horn, requiring medical nexus evidence between service and the current disability, as discussed above, the claims folder contains contradicting evidence regarding a relationship between the Veteran's current low back disorder and service. Here, the Veteran had inservice back complaints and treatment, and he has a currently diagnosed low back disorder. Initially, the Board notes that degenerative disc disease is not shown in service or within one year of his release from active duty. The record shows no treatment for back complaints until several years after service and degenerative disc disease is not noted until diagnosed in 2006 on VA MRI. Although the Veteran has claimed treatment at the Roanoke Clinic after service, records from that facility have been destroyed. Therefore, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, a medical opinion that is speculative or general in nature, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds that the VA QTC examiner's opinion offered in January 2008 is the most probative evidence of record, and outweighs the VA treating physician's opinion dated in July 2007. The Board assigns lesser probative value to the July 2007 VA examiner's finding since that examiner did not offer a clear rationale for the finding and the determination, as it relates to the Veteran, and the opinion is general in nature. It is based on a history that contradicts the documented inservice basis for the treatment which was from boxing, and it dates the injury in 1976/1977. It is noted that examiner also reported that it was "her best guess" regarding the low back pain starting in service. Thus the conclusion offered is speculative. In contrast, the VA QTC examiner addressed the complete medical history. He explained the findings. He addressed the etiology of the disorder and provided salient facts and observations with supporting information. The Board attaches the most probative value to the VA QTC opinion as it was well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Accordingly, the VA QTC opinion represents the most probative evidence of record. The Board finds that any post-service diagnosed low back disorder is not attributable to service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). While the record establishes the presence of the first two elements necessary for service connection-current disabilities and in-service injuries-the weight of the evidence is against the finding of a nexus between the Veteran's current disability and his active duty service. The Veteran is competent to attest to having back pain since service. He has reported a continuity of symptoms, stating that his low back complaints continued since service. The Board must therefore look at the credibility of these statements. The statements must be weighed against the other evidence of record, including the lack of any objective evidence of treatment pertaining to the low back until 1989 after a back injury. This is many years after the Veteran's separation from active duty service. At that time he did not report any prior history of back complaints. In addition, the absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's current disability was present in service or in the year immediately after 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); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). For these reasons, the Board finds that the Veteran's contentions of having ongoing back 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."). In this regard, 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 than other evidence relevant to the onset of his back disorder. Id. For example, he has stated that he injured his back in service lifting a heavy object. (See, notice of disagreement dated in August 2007); however the record shows his complaints stemmed from boxing. Also he reported that he had an MRI in service; however as pointed out by the January 2008 QTC examiner, that method of testing had not been in existence at that time. The Board acknowledges that the Veteran has sincerely contended that his low back disorder resulted from his inservice complaints. The Board also observes that the Veteran's background does not reflect that he is an expert in diagnosing and determining the etiology of the back disorder which is the focus of this appeal. See Black v. Brown, 10 Vet. App. 297, 284 (1997). Thus, in reviewing the Veteran's statements and opinions in this matter, the Board notes that he is competent to report on the symptoms that he experienced during and after service. Beyond that, the Board finds his opinions in this regard to be less credible and therefore less probative than the VA QTC examiner's opinion, which did consider the history as contained and supported in the record, and provided complete rationale. With consideration of the competent and credible evidence of record; the length of time between the Veteran's discharge from service and his low back complaints; and the preponderance of the competent medical opinion being against a causal link between the Veteran's disorder and service, the Board finds that the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a low back disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. REMAND Reason for Remand: To issue a Statement of the Case. In a December 2011, rating decision, the RO denied service connection for a bilateral eye disorder, and granted service connection for ischemic heart disease, hypertension, cluster headaches, tinnitus and gastroesphageal reflux disease. In July 2012, the Veteran submitted a statement, disagreeing with the RO's decision. Therefore, these issues must also be remanded for the issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a SOC, containing all applicable laws and regulations, on the issues of entitlement to a service connection for a bilateral eye disorder, and entitlement to higher initial evaluations for ischemic heart disease, hypertension, cluster headaches, tinnitus and gastroesphageal reflux disease. Manlincon, 12 Vet. App. 238. Advise the Veteran of the time period in which to perfect his appeal. If, and only if, the Veteran perfects an appeal as to any of these issues within the applicable time period, should an issue be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs