Citation Nr: 1309481 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 00-04 336A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for claimed low back condition with pain and degenerative disc disease. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1973 and from March 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by the RO, which denied service connection for a low back disorder. This appeal originally came before the Board merged with a claim of service connection for PTSD. In May 2001, during the pendency of this appeal, the Veteran testified before a Veterans Law Judge at a hearing held in Washington, D.C., but the only issue addressed at that hearing was service connection for PTSD. In an August 2005 decision, the Board granted service connection for PTSD, so that issue is no longer on appeal. The August 2005 decision also determined that the claim of service connection for low back pain had been previously denied in an unappealed September 1997 rating decision and found new and material evidence had been received to reopen the claim. The Board remanded the reopened claim to the RO for further development. The Board subsequently issued a decision in October 2006 denying the claim of service connection for a low back disorder. The Veteran subsequently appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In September 2008, the Court issued an Order granting the parties' Joint Motion to vacate the decision and remand the case back to the Board for compliance with the Court's order. In an August 2009 rating decision, the RO denied service connection for erectile dysfunction as secondary to the PTSD. The Veteran perfected an appeal of this issue. In March 2010, the issue of service connection for a low back disorder was remanded to the RO for additional development. In a September 2011 decision, the Board granted service connection for erectile dysfunction. Thus, this issue is no longer on appeal. In September 2011, the Board again remanded the issue of service connection for a low back disorder for additional development. Following substantial compliance with the remand directives, the case has returned to the Board for the purpose of appellate disposition. The Board acknowledges that the RO adjudicated various claims in January 2011 and October 2011. These issues are not in appellate status and are not for consideration by the Board at this time. The Veteran was previously represented by a private attorney. In March 2012, prior to certification of the appeal back to the Board, the private attorney withdrew her representation. See 38 C.F.R. §§ 14.631(f)(1), 20.608(a) (2012). The Veteran has not appointed another representative, and the Board does not recognize any representation at this time. The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings of a chronic low back disorder in service or for many years thereafter. 2. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to chronic low back condition since service. 3. The currently demonstrated low back disability manifested by degenerative disc disease with radiculopathy is not shown to be due to any injury or other event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by low back pain with degenerative disc disease with radiculopathy is not due to disease or injury that was incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in February 2003, August 2003, March 2006, and March 2010, VA has notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran has been advised how VA assigns disability ratings and effective dates. The claim was most recently readjudicated in the October 2012 supplemental statement of the case (SSOC). VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, private medical records, and Social Security Administration records. The March 2008 Appellant's Brief notes that the Veteran reported he first sought treatment for his back pain approximately 10 months after discharge at the VA Medical Center in Birmingham, Alabama. The attorney argued that these records were never requested and that VA did not comply with its statutory duty to assist. The Veteran was discharged from his second period of service in April 1975. A review of the claims folder shows that, in July 1997, in connection with his original claim, VA requested records from the VA Medical Center in Birmingham, Alabama for the period from January 1975 to the present. The available records were received in August 1997. Pursuant to the September 2011 remand, in October 2011, the RO asked the Veteran to provide authorizations for the release of medical records from a private orthopedist and the Anniston Army Depot. The Veteran did not provide a current authorization for release of the private orthopedic records, and as such, the Board is unable to request them. The Board notes that the duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO made several requests for records from the Anniston Army Depot. In May 2012, the Veteran was advised that a negative reply was received and was requested to submit any such records in his possession. In July 2012, the RO completed a formal finding regarding the unavailability of records from the Anniston Army Depot. The Veteran was afforded a VA examination in February 2006. Pursuant to the August 2008 Joint Motion, the parties agreed that this examination was inadequate. The parties determined that the opinion was based on an incomplete or inaccurate factual premise in that it did not discuss VA medical records which related that the Veteran had a 15 year history of back pain or that he had a past medical history of chronic low back pain or injury starting in 1975 at the time of his discharge from service. In March 2010, the Board remanded the appeal for additional VA examination, which was conducted in April 2010. At that time, the claims folder was reviewed. The examiner considered the Veteran's reported history and provided the requested medical opinions, which were supported by adequate rationale. On review, the Board finds that the April 2010 examination was adequate and that there is no basis for requesting additional examination or medical opinion at this time. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 123 (1991)) (finding a medical opinion adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of claimed disability will be a fully informed one.") In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Factual Background A careful review of the service treatment records reveals no complaints or findings referable to a low back injury or condition. On separation examination in April 1975, the Veteran's spine was reported as normal on clinical evaluation. The first documentation of a back disorder after military service is a VA outpatient treatment note in May 1984 showing treatment for musculoskeletal back pain. At that time, the Veteran reported low back pain and pain on the right side of his lower back. He received further VA treatment in September 1987 (reported after straining his back while working on his car), and November 1989 (reportedly after hurting his back at his workplace). In November 1992, the Veteran was seen with complaints of lower back pain and pain in the right knee since changing a tire the day prior. He reported having a history of low back pain for 15 years. In August 1995, the Veteran reported hurting his back at work on the previous Friday and having low back pain since then. He went to a chiropractor who reportedly told him he had a ruptured disc at L4. The X-ray studies showed mild discogenic degenerative change with disc space narrowing at the L4-5 level. The remaining of the lumbar spine was relatively normal with no evidence of fracture or frank subluxation. An April 1997 VA record noted that the Veteran had recurrent backache, no trauma. The assessment was that of backache, nontraumatic, no radiating pain. The Veteran underwent a VA examination in August 1997 and reported falling off a stepladder during military service with his feet hitting the ground straight up, injuring his back; he stated that the injury was treated at the time with muscle relaxers and hot pads. The VA examiner recorded clinical observations, including range of motion, and diagnosed a history of back trauma with slight limitation of motion of the lumbosacral spine and questionable ruptured disc at L5. The examiner did not provide an opinion with regard to etiology. A March 1998 VA record showed that the Veteran was involved in a car versus 18-wheeler accident. He was hit from behind and his seat broke. He was complaining of neck and low back pain. The assessment was that of status post motor vehicle accident. An April 1998 private lumbar spine x-ray study showed narrowing of the L4-5 interspace with end-plate sclerosis. No subluxation or fracture was evident, and the sacroiliac joints were intact. The Social Security Administration records showed that the Veteran had disability beginning in July 1999 based on psychiatric diagnoses. In November 1999, the Veteran underwent a VA physical therapy assessment. He reported injuring his back in 1975 and having back pain for 15 years. A November 1999 history and physical completed in connection with admission to a PTSD program noted a 1975 history of chronic low back pain with degenerative disc in his back. A March 2000 VA x-ray showed moderate discogenic change at the L5-S1 level with near complete loss of disc space height, noted as slightly worse than the last x-ray report in March 1998. An August 2000 VA physical therapy consult report noted a reported history of back pain since in the military in 1974. An August 2002 VA record again documented the Veteran's prior medical history of 1975 chronic low back pain with a degenerative disc. The Veteran had a VA examination of the spine in February 2006 and reported that he had injured his back in July 1974 when a fellow soldier pushed him off a porch, resulting in a four foot fall. He stated he landed on his feet and thought he injured his back at that time. The examiner stated that this fall was reported in the records, but was noted as a trauma to the left leg and left hip, diagnosed and treated as muscle strain. There was no indication that a back injury was complained about. The examiner also noted intermittent post-service treatment for back pain. The examiner performed a clinical examination and recorded his observations in detail. The examiner's diagnosis was that of mechanical back strain by history. He noted, however, that the service medical record did not support the contention of a service related back injury. The examiner further opined that the current back problem appeared to be in no way related to the injury he sustained in 1974 in that it was not clear that a back injury was perceived at that time. The Veteran most recently underwent a VA examination in April 2010. The Veteran reported that another soldier pushed him off a ladder and he fell straight down and landed on both feet. He stated that he had low back pain at that time and awoke in the morning with severe pain, such that he sought medical attention. He indicated he was given muscle relaxers. The Veteran reported having had intermittent back pain since that time. He also reported applying for a job in the early 1980's, but not being hired due to his back condition. He reported having low back pain during his employment at Anniston Army Depot and that the pain had occurred since he started in 1984. He also reported a motor vehicle accident in approximately 1998 when he was hit by an 18 wheeler and had neck and low back pain. The examination showed findings of a decreased range of motion. The x-ray studies showed moderately advanced L4-L5 degenerative disc disease. Diagnosis was degenerative disc disease of lumbosacral spine with left lower extremity radiculopathy. Based on a review of the claims folder, the Veteran's reported history, and the examination findings, the examiner opined that the Veteran's low back condition was less likely as not "caused by or a result of through continuity of symptoms to military service." The examiner stated that there was no documentation of a back condition during service and no back trouble was reported on separation from service in April 1975. The records from 1984 to 2003 were carefully reviewed and found to show that the Veteran had a preponderance of evidence which clearly documented a chronic low back condition from 1984 to the present, but no evidence of recurrent back pain in service or at separation. The examiner noted that the Veteran's post-service occupation involved repetitive heavy lifting, which was the more likely cause of his chronic low back condition. The examiner further stated that the Veteran's low back condition was less likely as not manifested within one year following discharge from service. Again, he noted no documentation of back problems during service or at discharge. The examiner discussed the November 1999 note which documented low back pain in 1975, but noted that an April 1997 treatment record showed recurrent backache, no trauma. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year following discharge from active military service. 38 C.F.R. §§ 3.307, 3.309. The Veteran essentially asserts that he has a current lumbar spine disability related to the 1974 in-service fall. In his March 2001 VA Form 9, the Veteran reported that he injured his back when he fell in 1974. He went to the infirmary and only got to see a medic. He told him that he injured his back and the pain was radiating in to his hip. The medic put down "hip pain" and gave him medication. In January 2010, the Veteran's attorney stated that he had provided lay statements regarding the onset of symptoms in service and continuity of symptoms after service. She noted that his medical records clearly documented a long-standing history of post-service low back pain. She argued that an award of service connection was clearly warranted based upon the evidence which established that he suffered from a chronic back disability that was first manifested during his active military service and had continued since that time. In a June 2011 statement, the Veteran reported that he hurt his back in the military by falling off steps and went to sick call. He reported that the pain ran down his leg. The medic provided him aspirin and did not obtain an x-ray study or any follow-up. The Veteran stated that he learned to live with the pain and had been to VA many times, but they did not do much about it. Over the years, his condition had gotten worse. Initially, the Board finds that a chronic low back disorder was not shown during service, nor is there evidence of a chronic lumbar spine disorder such as arthritis manifested to a compensable degree within one year following discharge from active service. Thus, service connection on a presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. In addressing the merits of this claim, the Board has considered the Veteran's reported history. The Veteran is competent to report that he injured his low back during service and had continuing symptoms since that time. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). "Competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). In determining the weight to be assigned to evidence, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In assessing the credibility of the Veteran's reported history, the Board first acknowledges the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the Board had erred by finding that a claimant's report of in-service psychiatric symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, for the following reasons, the Board does not accept the Veteran's statements regarding in-service onset and continuity of low back symptoms following service as credible. The Board's determination here is not based solely on the absence of documented treatment during service. First, the Veteran's statements that he injured his low back during service and that he had had problems since that time are essentially self serving. Given the factual background as set forth, arguing otherwise would clearly be detrimental to his claim. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Second, the Veteran's post-service history is inconsistent with that actually documented in contemporaneous records of treatment. For example, at the February 2006 and April 2010 VA examinations, the Veteran reported that when he fell in 1974, he landed on both feet and experienced low back pain. The July 1974 service record, which documents the reported fall, shows that he landed on his left leg and felt pain in the left hip that radiated to the left groin and down the left leg. The Board finds the history as documented in service, when the Veteran was seeking treatment, more credible than statements presented post-service in the pursuit of monetary compensation. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of the statements presented). The fact that the Veteran's separation examination makes no mention of back complaints or spinal abnormalities, when it noted various other defects or diagnoses, also weighs against his reports of in-service onset and continuity. Additionally, while complaints of low back pain are demonstrated beginning in 1984, a prior history of in-service injury was not documented at that time. Indeed, the Veteran was seen on various occasions in the 1980's for complaints of low back pain, but most of his complaints were related to acute injuries or episodes after service. He at one time reported having a 15 year history of low back problems, but this was not noted until approximately 1992. As discussed by way of factual background, to the extent that the Veteran's post-service history regarding his low back pain is not consistent throughout the record, the absence of contemporaneous statements in connection with initial treatment or pertinent diagnosis for several years following service also weighs against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges the Joint Motion, wherein it was noted that VA medical records documented complaints of and treatment for low back pain from May 1984 to February 2003. The Board has also considered those records that document a reported 15 year history of low back pain and/or a 1975 in-service low back injury. On review, this evidence suggests that back pain was shown approximately nine years following his 1975 discharge and that the reported continuity of symptoms did not begin prior to that time. These records also document various post-service injuries, to include those sustained on the job. The Board further observes that providing a 15 year history of back pain in 1992 and 1999 suggests onset in 1977 or 1984, respectively, both of which would date the onset of pertinent symptoms to a time after service. The referenced records are insufficient to provide a link the development of the claim symptoms to the time the Veteran was in service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (transcription of lay history is not transformed into "competent medical evidence" merely because the transcriber is a medical professional). Thus, the Veteran's lay assertions are not found to be credible for the purpose of establishing a continuity of symptomatology referable to a chronic low back disorder beginning in service. Finally, the Board has considered the various medical opinions of record. As noted, the February 2006 examiner provided a negative opinion. Pursuant to the Joint Motion, however, the parties agreed that this examination was inadequate. Under these circumstances, the Board declines to find it probative. The April 2010 examiner also provided a negative etiology opinion. That is, the examiner essentially opined that the Veteran's low back disability was not manifested within one year following discharge and was not related to active military service or events therein, to include based on reported continuity of symptoms. This examination is considered adequate, and the Board finds the opinion to be highly probative. The record does not contain competent evidence of sufficient probative value to the contrary. In making this determination, the Board acknowledges the Veteran's assertions that his current low back disability is related to service. The Veteran, however, is not competent to diagnose degenerative disc disease or provide an opinion as to its etiology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In summary, there is no evidence of lumbar spine arthritis within one year following discharge from active service and the preponderance of the evidence is against finding that currently diagnosed low back disability is related to active military service or events therein. The doctrine of reasonable doubt is not for application and the claim is denied. See 38 C.F.R. § 3.102. ORDER Service connection for a low back condition with pain and degenerative disc disease is denied. ____________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs