Citation Nr: 1309507 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 06-04 719 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1982. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2004 rating decision in which the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a low back disability. In November 2004, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2006, after which the issue was certified to the Board for adjudication. In February 2009, the Board determined that new and material evidence to reopen the previously denied claim of service connection for a low back disability had been received, but remanded the reopened claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC denied the claim (as reflected in a December 2012 supplemental SOC (SSOC)) and returned the matter remaining on appeal to the Board for further consideration. As a final preliminary matter, the Board notes that, in a February 2013 brief, the Veteran's representative raised the issue of service connection for a low back disability secondary to service-connected right and left knee disabilities. It does not appear that the claim of service connection for a low back disability as secondary to service-connected right and left knee disabilities have not yet been addressed by the RO. As such, this matter is] not properly before the Board, and is thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Service treatment records reflect that the Veteran injured his back during service, after which he complained of upper back and dorsal spine pain. 3. There is no credible evidence of any low back injury or continuing low back problems during or since service; no chronic lumbar spine disability was competently shown until many years after service (after a motor vehicle accident in July 1991); and the most persuasive medical opinion evidence on the question of whether there exists a medical relationship between the Veteran's current lumbar spine disability and his service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 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 I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a service connection claim, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The September 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2004 letter. Post rating, an April 2008 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the April 2008 letter, and opportunity for the Veteran to respond, the February 2012 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, post-service VA and private treatment records, and the reports of July 2012 and December 2012 VA examination. In this regard, the Board notes that, in addition to his paper claims file, the Veteran also has a paperless, electronic (Virtual VA) file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file, as well. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree ([10 percent for arthritis]) within a prescribed period after discharge from service ([one year for arthritis]), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. The evidence of record clearly establishes that the Veteran has a current lumbar spine disability, as reflected, for example, in the diagnosis of lumbar spine arthritis, muscle spasm, and chronic lumbar strain, rendered on December 2010 VA examination. However, the record simply fails to establish-by competent, credible, and probative evidence-that any current lumbar spine disability had its onset is or is otherwise medically related to any incident of service. The Veteran has asserted that service connection is warranted because his current lumbar spine disability is related to a back injury he incurred during active military service. He has specifically asserted that he injured his low back while playing pushball during service, after which he was taken to Cutler Army Hospital for treatment and received physical therapy. He has also asserted that he has experienced low back pain since the in-service injury. The service treatment records (STRs) reflect that the Veteran injured his back in March1980. At that time, the Veteran reported having pain in his upper back. X-rays of his chest and thoracic spine were negative. The Veteran did not complain of back pain again until June 1981, when he was noted to have dorsal paraspinal muscle spasms. The examining physician noted that he had postural backache and suggested that he be given shoulder shrugging exercises for treatment. The STRs do not contain any complaints of low back pain, including after the in-service back injury or at any time during the remainder of service. In connection with the February 1982 separation examination, the Veteran explicitly denied having recurrent low back pain, and clinical examination of his spine at that time was normal. The Veteran is certainly competent to report matters within his personal knowledge, such as the occurrence of an injury, or the onset of certain symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). However, in assessing credibility and probative value, such assertions must be considered in light of medical and other evidence of records. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In this case, after reviewing and weighing the evidence of record, the Board finds that the Veteran's assertions of low back injury and associated symptoms during service simply are not credible. In making this determination, the Board finds probative that the STRs document the Veteran's complaints of various conditions and symptoms experienced during service, including after the March 1980 in-service back injury and, yet, there are no complaints or treatment for low back pain or lumbar spine injury at any time during service, including after the March 1980 back injury or at separation from service. While, generally, the lack of contemporaneous evidence showing certain injury or complaints is not dispositive as to the presence such injury or complaints, here, the Board finds that the contemporaneous information and evidence contained in the service records actually weighs against the Veteran's assertion of experiencing low back injury and pain at that time. STRS reflect that, when the Veteran sought treatment following the March 1980 in-service back injury, he reported having pain in his upper back and dorsal spine, with no mention of pain originating or radiating into his low back. In addition, to the lack of evidence showing complaints of low back pain during service, the STRs also lack medical evidence showing treatment for symptoms involving the low back or lumbar spine. As noted, when the Veteran sought treatment after the March 1980 back injury, he reported having pain in his upper back and physicians determined that x-rays of his chest and thoracic spine be conducted. Likewise, when he sought treatment in June 1981, he reported having pain in the dorsal spine and physicians suggested that he be given shoulder shrugging exercises. See STRs dated March 1980 and June 1981. The treatment provided and recommended by the medical professionals who treated the Veteran after the in-service back injury is considered probative evidence against the Veteran's assertion of experiencing low back pain after the in-service injury and any assertion that the in-service injury involved or resulted in a chronic lumbar spine disability. This evidence, combined with the lack of subsequent complaints or treatment for spine problems during the remainder of service, the Veteran's explicit denial of having recurrent low back pain at separation from service, and the evidence showing a normal spine at separation from service, weighs against the Veteran's assertion of having low back pain during service, including as a result of the in-service back injury, and renders his report of such incredible. Therefore, the Board finds that while the STRs show the Veteran suffered an injury in service which resulted in mid and upper back pain, there is no other competent and credible evidence that shows the Veteran experienced low back injury or low back pain during service. The evidence also fails to credibly show continued lumbar spine complaints, as the Veteran currently asserts. While the Veteran sought to establish service connection for "back injury" immediately after service in November 1982, he did not report having low back pain at that time and the evidence submitted in support of his claim, which documented his medical history, was negative for any complaints or treatment for low back pain. See PMRs from St. Vincent's Hospital dated 1982. In fact, there is no evidence documenting any low back problems for several years after service. The first evidence of low back problems is in 1991, almost ten years after he was discharged from service. The evidence shows that the Veteran sought treatment for low back pain and mid back spasms after a motor vehicle accident in July 1991. The evidence does not reflect that the Veteran then reported having a history of back pain since service, even though the medical assessment at that time was an acute exacerbation of chronic low back pain. The Board notes that neither the Veteran nor his treating physician attributed his low back symptoms to service, including by way of a report of continued low back problems since service or medical evidence or opinions which suggest a medical nexus between the low back symptoms shown at that time and the Veteran's military service. Instead, the evidence reflects that the low back pain manifested after service was due to the motor vehicle accident that occurred in July 1991-clearly an intercurrent cause, even if some lumbar spine symptoms in and following service were shown. As noted, the Veteran was ultimately diagnosed with arthritis affecting the lumbar spine. However, as there is no medical evidence whatsoever even suggesting that the Veteran manifested arthritis in his lumbar spine during his first post-service year-much less, manifested the disability to a compensable degree-service connection for lumbar spine arthritis as a chronic disease is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101(3), 1112; 38 C.F.R. § 3.307, 3.309(a). Also, as the Veteran's assertions as to in-service lumbar spine injury and continuous associated symptoms are not deemed credible, the Veteran cannot establish service connection for arthritis on the basis of continuity of symptomatology, pursuant to 38 C.F.R. § 3.303(b) and Walker. Furthermore, on the question of whether there exists a medical nexus between any current lumbar spine disability, to include arthritis, and service, the record contains both positive and negative medical opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The physician who conducted the July 2010 VA examination opined that it is at least as likely as not that the current lumbar spine disability is related to the Veteran's in-service back injury, while the December 2010 VA examiner opined that it is less likely as not that the current lumbar spine disability is related to the in-service back injury. However, for reasons explained below, the Board accords more probative weight to the December 2010 VA opinion. Review of the record reveals that both VA examiners reviewed the claims file and noted the Veteran's in-service injury to his upper and middle back, the post-service motor vehicle accident, and the Veteran's lay assertions of continuity of symptomatology after service. Despite reviewing the same evidence, the VA examiners provided differing opinion, with a rationale in support thereof. In opining that the current lumbar spine disability is at least as likely as not related to the in-service back injury, the July 2010 VA examiner noted that the in-service back injury may have been the original contributor to the Veteran's low back discomfort and that there is multiple and repeated treatment of the lumbodorsal spine, including in July 1991. However, as noted, the Board has determined that the Veteran's assertion of experiencing initial low back injury and associated pain during service is not credible. Therefore, the Board finds that the July 2010 VA examiner's opinion is premised, in large part, upon the a history provided by the Veteran. As a medical opinion can be no better than the facts alleged by the Veteran, an opinion based on an inaccurate (or unsubstantiated) factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). By contrast, the December 2010 VA examiner's opinion that the current lumbar spine disability is less likely as not related to the in-service back injury appears to be based upon closer examination of, and is more consistent with, the documented medical evidence, and that examiner provided a more detailed discussion of that evidence. While both VA examiners noted the in-service back injury, the December 2010 VA examiner noted that the STRs show the in-service injury involved the Veteran's upper back and thoracic spine and that the in-service injury was resolved by the time the Veteran was separated from service. In addition to the lack of evidence showing the in-service injury involved the lumbar spine or that a chronic back disability was incurred in service, the examiner noted that other evidence of record does not reflect any complaints or findings related to the lumbar spine until the post-service motor vehicle accident, only after which the Veteran has consistently complained of low back pain and is shown to have an actual lumbar spine disability. These facts are particularly relevant to this claim and are not adequately discussed by the July 2010 VA examiner. For these reasons, the December 2010 examiner's opinion is entitled to more probative weight. Accordingly, the Board concludes that the most persuasive medical opinion evidence on the medical nexus question weighs against the claim. Finally, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between any current lumbar spine disability and the Veteran's service; however, none of this evidence provides a basis for allowance of the claim. No diagnosed lumbar spine disability, to include arthritis, is one capable of lay observation. Thus, determinations as to the presence and etiology of any such lumbar spine disability are medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the claim turns on the medical matter of whether there exists a relationship between the lumbar spine disability for which service connection is sought and the Veteran's service, a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a lumbar spine disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs