Citation Nr: 1309877 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 08-11 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from December 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2011, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. The Board previously remanded this matter in October 2011 for additional development. The remand directed the Appeals Management Center to verify periods of active duty for training and inactive duty for training with the Army Reserve. The remand also directed the AMC to obtain service treatment records from the Veteran's period of service with the Army Reserves. In addition, the remand directed the AMC to attempt to obtain treatment records from Balboa Naval Hospital, the Army Medical Center at Fort Lewis, the Sepulveda VA Hospital in Los Angeles and the South Texas VA Healthcare System. The remand also directed the AMC to schedule the Veteran for a VA examination. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The weight of the competent, credible, and probative evidence does not demonstrate that a low back disability is related to the Veteran's active military service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303(a),(b), (d), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2006. The letter informed the Veteran of what evidence was required to substantiate her claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter was provided prior to the July 2006 rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. Regarding the duty to assist, the RO made reasonable efforts to obtain the pertinent records. The record indicates that the RO obtained all available evidence relevant to the Veteran's claim. A memorandum in the claims file, dated in August 1996, reflects that the RO attempted to secure the service treatment records in September 1995 and February 1996, and none of the Veteran's records were located. Therefore, unfortunately, the Veteran's service treatment records are not available for review. Accordingly, VA has a heightened duty to assist the appellant in developing this claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In May 2012, the Veteran advised the RO that she had service in the Army Reserves. She indicated that this was between 1975 and 1976. In December 2012, the RO contacted the Defense Finance Accounting Service (DFAS) to verify any periods of active duty for training (ADT) and inactive duty for training (INACDUTRA). DFAS provided pay records from December 1972 to September 1973. No periods of ADT or INACDUTRA for the Veteran were verified. The RO attempted to obtain treatment records from Sepulveda VA Hospital in Los Angeles. The RO received a negative response from the VA Greater Los Angeles Healthcare System in February 2013. A memorandum dated in February 2013 indicated that the records from the West Los Angeles VA are unavailable. The RO attempted to obtain treatment records from Balboa Naval Hospital, dated in 1973, and Fort Lewis Army Medical Center, dated in 1973. A negative response was received in September 2012. Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(1). As such, the Board finds that an additional remand is unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In July 2012, the Veteran underwent an adequate and probative VA medical examination for her claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided an adequate examination to the Veteran. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in 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; 38 C.F.R. § 3.303(a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307 , 3.309. 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). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In this case, the claimed low back condition is manifested by arthritis, and therefore, the provisions of 38 C.F.R. § 3.303(b) are applicable. In order to prevail on the issue of service connection on the merits, generally, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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, 470-471 (1993). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As lay person, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability. Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that she began having back pain during active duty service. In a written statement received in July 2005, the Veteran reported that her back problems began during basic training. She indicated that her back pain started after mopping a floor. The Veteran indicated that she went to the doctor two weeks before graduation. She stated that she was examined and received a prescription for Valium and was put on profile for two weeks. The Veteran had active duty service from December 1972 to September 1973. As noted previously, the service treatment records are not in evidence. The Veteran is competent to provide testimony concerning factual matters of which she has first-hand knowledge, such as having back pain in service. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court held that the Board must make an express credibility finding regarding lay evidence. In this case, the Board finds the Veteran is competent and credible in her report that she experienced back pain while mopping during service. The Board finds, however, that a low back disability was not chronic in service. The evidence of records shows no treatment or complaints of a low back disability from service separation until 2005. The Board emphasizes that the gap of more than 30 years between discharge from active duty service and initial reported symptoms related to the low back weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Given the absence of any evidence of complaint or treatment for a low back disability from service separation until 2005, the Board concludes that the weight of the evidence is against a finding of chronic low back pain symptomatology in service. The Board next finds that symptoms of a low back disability have not been continuous since service. In statements in support of her claim, the Veteran reported continuous low back pain since service. Private medical records dated in 2012 reflect that the Veteran reported a history of back pain since basic training in 1973. While the Veteran asserts that she has had continuous low back pain since service, her report of continuous back pain symptoms is inconsistent with several post-service medical records, which do not reflect complaints or diagnoses of a low back disability. A VA report of an annual physical, dated in October 1992, reflects that no low back complaints were recorded, and the spine was evaluated as normal. In January 1995, the Veteran was admitted to a VA hospital. A report of a physical completed upon admission reflects that no complaints of a low back disability were noted. The Board finds that the Veteran's statements made in the course of treatment in 1992 and 1995 have greater probative value than the statements made pursuant to the VA compensation claim because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Veteran's statements in which she has reported continuous low back pain are inconsistent with the medical records which do not reflect low back complaints and are therefore not credible. Post-service treatment records show that the Veteran initially reported low back pain in 2005. A VA outpatient treatment record dated in June 2005 reflects that the Veteran reported a one-year history of chronic low back pain. In October 2005, the Veteran presented to urgent care with a complaint of low back pain related to a motor vehicle accident several days prior. Thus, the history reported by the Veteran in the post-service medical records places the onset of her low back pain in 2004 or 2005. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker, supra., (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, based on the evidence which reflects that there were no complaints or findings regarding the spine in several post-service treatment records and that initial post-service complaints regarding the low back were first shown in 2005, and that in June 2005 the Veteran reported a one year history of back pain, the Board finds that the continuity of low back symptomatology since service is not demonstrated. The Board next finds that the weight of the competent and probative evidence is against the claim of service connection for a low back disability. The Veteran had a VA examination in July 2012. The Veteran reported back pain which began in basic training. She reported that her back pain began in 1972 or 1973 when she was mopping and buffing floors. She reported that she was treated twice during service. The Veteran reported that she was seen at Balboa Hospital in 1973 for back pain during her pregnancy. The Veteran reported that she could not recall any other details, but she stated that, since 1972, her back had always bothered her. The VA examiner diagnosed lumbar spondylosis. The VA examiner opined that it is not caused by or a result of service. The VA examiner noted that service medical records show no evidence of treatment for the lumbar spine. The VA examiner noted that the Veteran related treatment in 1972 or 1973. The VA examiner indicated that treatment the Veteran reported during her pregnancy was reviewed, and no other back pain other than that due to her pregnancy was noted. The VA examiner indicated that medical records from 1973 and 2005 were reviewed from various sources and did not contain complaints related to the lumbar spine. The VA examiner noted that the first documented complaints related to the lumbar spine were in 2005. The VA examiner indicated that, at that time, the Veteran had an intercurrent motor vehicle accident injury. The VA examiner noted that another injury was noted in June 2010. The VA examiner stated that the records are therefore silent for a period of approximately 30 years that would document continued complaints of treatment. The VA examiner indicated that there is no history of documented continuing complaints of treatments to indicate a chronic disabling condition. The VA examiner indicated that two entries in the medical records reviewed suggest that the pain started at a later date. The VA examiner noted that a 1992 physical examination did not mention back pain, and a January 2006 examination noted that the pain started one year before. It is noted that the VA examiner indicated that he reviewed records dated from 1973 and 2005 from various sources and also noted service treatment records. The record does contain two service treatment records that are immunization records with dates noted between 1972 and 1973. The claims file contains treatment records dated between 1990 and 2011. The examination report also includes a detailed discussion of the evidence reviewed in the claim file. The Board has reviewed the examination report and concludes that the examiner reviewed the available records in the claims folder and to the extent that he discusses the complaints and treatment for back pain in service, this discussion is based on the history as provided by the Veteran during the examination. There is no indication that the examiner reviewed any records not contained in the claims folder and he does provide a detailed discussion of the evidence in the claims folder in rendering his opinion. As such the Board finds that the examiner's opinion is adequate and probative. While the Veteran has asserted that a causal or etiological relationship between the claimed low back disorder and active service exists, as a lay person, she lacks the medical training to provide a competent medical opinion regarding the cause or etiology of the claimed low back disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether a low back disability, currently diagnosed as lumbar spondylosis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Therefore, the Veteran's assertion of nexus of her currently diagnosed disability to service is afforded no probative value. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For these reasons, as the preponderance of the evidence weighs against finding that the claimed low back disability is causally or etiologically related to service, service connection must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for a low back disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs