Citation Nr: 1310907 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-34 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active military service from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. In a November 2009 decision, the Board reopened the issue of service connection for a back disability and remanded it for further development on the merits. In January 2012, the Board again remanded the case for further development. The case has now been returned to the Board for appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. FINDING OF FACT A back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 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 FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran was sent notices in December 2005, March 2010 and July 2011 that fully addressed all notice elements. The letters advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Moreover, the March 2010 and July 2011 letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The December 2005 notice was provided prior to the initial RO adjudication in February 2006. However, the Board recognizes that the March 2010 and July 2011 VCAA notices, which address the Dingess elements, were provided after the initial decision. However, the deficiency in the timing of these notices was remedied by readjudication of the issue on appeal in subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, the claims file contains the Veteran's service treatment records, post-service reports of private and VA treatment, and VA examinations reports with addendums. The record shows that the RO has requested all identified private treatment records and either received such records or negative responses from the providers. A review of Virtual VA does not include any additional evidence pertinent to the appeal. Furthermore, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available additional outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Finally, the Board finds that there was substantial compliance with the November 2009 and January 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in November 2009 directed the AOJ to send the Veteran VCAA notice in compliance with Dingess and to schedule the Veteran for a VA examination. As noted above the Veteran was sent Dingess-compliant notices in March 2010 and July 2011. Further, the Veteran was afforded a VA examination in April 2010 with an addendum done in March 2011. The Veteran also underwent another VA examination in September 2011. However, in the January 2012 remand, the Board determined that the opinions were inadequate and remanded the case to be returned to the same examiner for an addendum, which was done in March 2012 and November 2012. As the September 2011 VA examination with subsequent addendums were prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the examinations and addendums are adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis Service connection may be granted for a 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The Board also observes that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for a back disability. In statements of record, the Veteran asserts that his current back disability is related to injuries and incidents to his back that occurred in service. He has also claimed that operating heavy equipment vehicles while in service took a toll on his back. The Veteran's service treatment records show that in February 1974, he underwent an enlistment examination. At that time, in response to the question as to whether he had ever had or if he currently had recurrent back pain, the Veteran responded "yes." The examiner noted that the Veteran had experienced musculoskeletal back pain in the past. Nevertheless, the Veteran's spine and other musculoskeletal system were clinically evaluated as normal. In August 1974, approximately one week after the Veteran's induction, he was treated for complaints of low back pain. Specifically, the Veteran gave a history of a trauma to the low back one year ago. He noted that he had experienced low back pain since the trauma, with some radiation of the pain to the left thigh. The physical examination showed that the Veteran had mild thoraco-lumbar scoliosis to the left. He had a full range of motion and there was tenderness at L3-5. The impression was of a weak low back. The records reflect that the Veteran was subsequently treated on numerous occasions for complaints of low back pain. In March 1975, he was diagnosed with chronic low back pain, mild. In an October 1975 service examination, his spine was clinically evaluated as "abnormal." The examiner noted that the Veteran had experienced low back pain since 1974 and that the etiology was unknown. However, subsequent service treatment records are silent with respect to any complaints of back pain. Importantly, during his separation examination, conducted in May 1977, his spine was noted to be normal upon clinical evaluation and no lumbar spine deficits were reported or documented. In his contemporaneous medical history, the Veteran expressly denied any recurrent back pain. In an August 1977 statement, the Veteran indicated that there had been no change in his medical condition. After service in June 1980, the Veteran filed a claim for service connection for unrelated disorders, but was silent with respect to any back complaints. He subsequently underwent a general VA examination in September 1980, where again he was silent with respect to any back problems. Private medical records, dated from April 1992 to January 1998, show that in December 1993, the Veteran was treated for complaints of low back pain. At that time, he stated that a few days prior to his visit, he developed low back pain after raking leaves and cleaning his house. An X-ray examination of the Veteran's lumbosacral spine showed grade I spondylolisthesis. The examiner noted that it appeared that the spondylolisthesis was old and that the Veteran's symptoms were of recent onset. Following the physical examination and a review of the Veteran's x-rays, the examiner diagnosed the Veteran with grade I spondylolisthesis at L5-S1 level, with bilateral spondylolysis, with facet arthropathy and facet syndrome on the left side. A followup January 1994 record showed that the Veteran presented indicating that he injured his back approximately one month ago. The impression was acute low back pain resolved, primary problem; and spondylolysis, spondylolisthesis, L5, S1, asymptomatic. It was recommended that the Veteran return to work full time with no restrictions. In December 1995, the Veteran was treated after re-injuring his back by falling and landing in a sitting position. The Veteran reported back pain for a number of years since childhood, but had reinjured his back on several occasions. He had an injury in 1993. The Veteran had x-rays taken of his lumbosacral spine which, when compared to the December 1993 x-rays, showed no acute changes. The spondylosis of the L5-S1 vertebra area was the same as in the previous x-rays. The Veteran filed his initial claim for service connection for a back disability in March 2002. In support of his claim, he also submitted additional private medical records from Scott & White Clinic. The records showed that in November 2001, the Veteran presented for the first time with a history of low back pain, which had been persistent over the last several days, but was better. The impression was lumbar strain, improving. In December 2001, the Veteran was again treated for complaints of low back pain. An X-ray examination of the Veteran's lumbosacral spine showed degenerative disc disease at L4-5 and L5-S1, with narrow disc spaces and some gas formation in the disc spaces. There was a first degree to second degree spondylolisthesis of L5 upon S1. There were prominent anterior hypertrophic changes throughout the region, more prominent at L5-S1, where there was some osteophytic bridging. There was mild central compression of the L2 vertebral body and slight anterior wedging of several lower thoracic and upper lumbar vertebrae. There was a mild scoliosis convex to the left. The impression was of osteoarthritis of multiple sites. Follow up private treatment records continued to show treatment for the Veteran's back. Another X-ray in May 2005 showed L5-S1 spondylolisthesis and severe degenerative change there at L4-5 in particular. In private medical statements, dated in May and August 2005, Dr. S.D.P. from Scott & White Clinic stated that the Veteran had been her patient since 2001. Dr. P. indicated that the Veteran had requested that she prepare a statement summarizing the care she had provided him and summarizing his low back pain history. She noted that the Veteran had experienced low back pain since his teenage years and that it became worse due to an injury shortly after joining the military. Dr. P. stated that the Veteran had a significant low back injury at age 19 while he was in the military. Over the last 30 years, the Veteran had experienced progressive low back pain. According to Dr. P., x-rays of the Veteran's lumbosacral spine showed mild scoliosis and marked degenerative changes of the lumbar spine. Those changes were most prominent in the L4-5 and L5-S1 region. The Veteran had almost complete obliteration of the disk spaces in that area. In summary, Dr. P. reported that her impression of the Veteran's condition was that he had progressive lumbar pain and osteoarthritis, as well as degenerative changes of his low back. According to Dr. P., the Veteran's pain became worse after an injury which occurred shortly after joining the military. Dr. P. opined that given that osteoarthritis and degenerative changes could be instigated by injury, it was certainly reasonable to assume that the Veteran's degenerative changes began with his in-service injury. VAMC outpatient treatment records, dated from February 2004 to December 2005, show that in December 2005, the Veteran underwent a follow-up evaluation for his chronic problems, including chronic low back pain. Follow up VA treatment records continued to show treatment for chronic low back pain, but are silent with respect to etiology. In November 2009, the Board observed that at the time of the Veteran's February 1974 enlistment examination, the Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." Accordingly, he was entitled to a presumption of soundness at service entrance. However, because the Veteran also reported that he had recurrent back pain upon his February 1974 enlistment examination, the questions, therefore, were whether the evidence clearly and unmistakably demonstrated that the Veteran had a back disability prior to his entrance into the military, and whether it clearly and unmistakably shows that it was not aggravated during service. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).. The Board found that there was no actual medical evidence showing that the Veteran had a back disability prior to his enlistment into the military. Although the Veteran may have experienced back pain prior to his entrance into military, there was no medical evidence showing that an underlying back disability was diagnosed. Thus, the Board determined that there was no clear and unmistakable evidence showing that the Veteran had a back disability prior to his entry into service. As such, the Veteran was entitled to the presumption of soundness and, in turn, the Board remanded the issue for a VA examination with etiological opinion to determine whether the Veteran's current back disability was related to service. In April 2010, the Veteran underwent a VA examination that was conducted by a physiatrist. The examiner concluded that it was as likely as not that the Veteran's current back disability was linked to the service-related injury. However, because the examiner did not provide a rationale for the opinion, the examiner was requested to provide an addendum by the RO. In a March 2011 addendum, the examiner referred to the Veteran's pre-existing back condition. Nevertheless, as stated above, the Board had already concluded that the Veteran did not have a pre-existing back disability. Moreover, the examiner noted that an orthopaedic specialist was to provide an opinion regarding the pertinent nexus question. In September 2011, the Veteran underwent a VA examination that was conducted by G.D., M.D., Chief of Orthopedics. Dr. D. indicated that he had reviewed the Veteran's claims file. However, even though the Board had specifically concluded that the Veteran did not have a pre-existing back disability and that the Veteran was entitled to the presumption of soundness at service entrance, Dr. D. stated that the Veteran had a history of chronic low back pain which existed prior to his induction into the military. In addition, he did not answer the pertinent nexus question. In this regard, Dr. D. reported that it was not possible to say that the Veteran's current back disability, diagnosed as degenerative lumbar disc disease, was more related to his military service than to his industrial injuries and to the normal progression of time. Thus, the Board remanded the case again in January 2012 for an additional opinion in compliance with the remand directives. In a March 2012 addendum, Dr. D. determined that after reviewing the medical record, he did not find evidence that the Veteran's military service initiated any specific degenerative changes to the lumbar spine. The examiner observed that there was no evidence that the Veteran had anything other than a low back strain during his military service. He also noted that at the time of the industrial accident in 1993, no acute injury was evidence by x-ray except for lumbar spondylisthesis being present. The length of time for spondylisthesis to occur is clinically uncertain in this Veteran, but there was no evidence that it existed during military service. The roentgenographic findings of spondylisthesis may be due to the normal aging process. He concluded that the Veteran's low back pain was less likely than not related to his military service. In a November 2012 addendum, Dr. D. addressed the May and August 2005 private opinions of Dr. P. Dr. D. observed that Dr. P failed to consider subsequent injuries to the low back. Dr. D disagreed with Dr. P's conclusions and found them to be based on speculation as opposed to fact. He still believed that the Veteran's current low back disability was less likely as not related to military service and more likely related to workman's compensation injuries and condition. Again, Dr. D considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, he provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the September 2011 VA examination with subsequent addendums. After considering the totality of the evidence of record, the Board finds service connection for a back disability is not warranted as there is no competent evidence linking any disability to an injury in service, and no evidence of arthritis within one year of service. Indeed, although service treatment records document complaints of low back pain, no diagnosis of a chronic back disability was made at that time. Further, service treatment records for the last couple years of service are silent with respect to any back complaints. Importantly, the Veteran's spine was clinically normal at the time of his discharge examination and he expressly denied any recurrent back pain. Moreover, as discussed further below, there is simply no competent evidence demonstrating a link of any current back disorder to service. The Board observes that lay assertions 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report in-service injuries and incidents of back pain and his assertions are supported by the service treatment records. He is also competent to report pertinent symptomatology since service. However, he is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Board finds the Veteran's current assertions of pertinent symptoms since service to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. For instance, the Veteran did not report any low back pain to a medical provider until after injuring his back in 1993, which was 16 years after his discharge from service. At that time, the Veteran was silent with respect to any prior injuries, but rather reported that his back had been hurting for a few days after performing chores. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board also finds it significant that the Veteran filed a claim for service connection at the VA as early as 1980 and underwent a VA examination, but was silent with respect to any back problems. It would be reasonable to assume that if he had continued to experience back pain since service, he would have mentioned it when he filed his initial claim in 1980 or when first seeking treatment in 1993. Accordingly, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous symptoms since service are inconsistent with the contemporaneous evidence. Accordingly, while his contentions have been carefully considered, neither these contentions nor the clinical record establish a continuity of symptomatology such as to serve as a basis for a grant of service connection. The Board recognizes that the May and August 2005 private opinions by Dr. P indicated that the Veteran's low back disability was related to an injury in service. However, this opinion is based on an inaccurate history provided by the Veteran, mainly progressive low back pain for 30 years. Again, as noted above, it was 16 years following service before any complaints of back pain. Further. Dr. P clearly did not consider the Veteran's intervening injuries to the back documented in 1993 and 1995 private treatment records. Thus, given these deficiencies, the Board must find that the opinion of Dr. P has minimal probative value and is outweighed by the more probative opinions of Dr. D. Again, after reviewing the claims file, the highly probative September 2011 VA examination with subsequent March and November 2012 addendums found that the Veteran's current back disability was not related to service. As discussed above, the examiner provided a detailed rationale for this opinion. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a back disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a back disability, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs