Citation Nr: 1311096 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 04-24 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for low back disability, including degenerative disc disease. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to September 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part found new and material evidence was not received to reopen a claim for entitlement to service connection for a low back disability. The Veteran provided testimony at a hearing held at the RO in May 2006 before a Veterans Law Judge no longer employed at the Board. A transcript of that hearing is of record and has been reviewed. In an October 2006 decision, the Board determined that new and material evidence had been received and the claim for entitlement to service connection for low back disability was reopened. The Board remanded the case for further development. VA notified the Veteran in a February 2008 letter that the Veterans Law Judge who conducted the October 2006 hearing was no longer employed by the Board. As a result, the Veteran opted for another hearing. The hearing was held in June 2008 before the undersigned Veterans Law Judge. A transcript of the hearing is of record and has been reviewed. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2006 and June 2008 hearings, the issues on appeal were identified, and both judges solicited information as to treatment, and findings related to the claimed disabilities, and ensured the Veteran was aware of the evidence needed to prove his claim. The Board then remanded the claim to obtain evidence expected to assist the Veteran in substantiating the claim. The Board thereby fulfilled its duty under Bryant. Any possible deficiency would not be prejudicial, because the Veteran received a number of subsequent decisional documents, including the Board's vacated decision that explained the evidence that was found to be lacking and the Veteran has had a subsequent opportunity to provide additional argument and evidence prior to readjudication of his claim by the RO and the Board. In a decision dated in September 2009, the Board denied the Veteran's appeal, and he appealed the decision to the Court. In March 2010, the Veteran, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion for Remand (JMR). In an Order dated in April 2010, the Court granted the Motion, vacated the September 2009 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR. To comply with the Court's Order, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, in November 2010 for additional development. The RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. The Veteran also has a Virtual VA paperless claims 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 there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT 1. The RO completed the additional development directed in the November 2010 remand by seeking to obtain the VA records identified and by arranging a VA examination of the Veteran. 2. The preponderance of the evidence shows the Veteran's current low back disability is not etiologically related to service; and, lumbar spine arthritis did not manifest within one year of separation from active service. CONCLUSION OF LAW A low back disability was not incurred in active service, and arthritis cannot be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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; (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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in June 2003, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by a March 2006 RO letter. He was also told to submit relevant evidence in his possession. VCAA notice should be given before an initial Agency of Original Jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was cured by the issuance of VCAA notice followed by readjudication of the claim in August 2007 and November 2008 Supplemental Statements of the Case (SSOC). Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained available records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was afforded adequate VA examinations in May 2007 and May 2012. An examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). An examination may also be inadequate, in the context of a chronic disease, if the examiner ignores a veteran's assertions of continuity of symptomatology. Barr, 21 Vet. App. at 311 (finding error where "the VA examiner did not indicate whether he considered Mr. Barr's assertions of continuity of symptomatology"). As discussed below, the VA examiners considered the prior medial history in detail, and considered the Veteran's reports and contentions. The opinions were well supported by analysis. Any failure to fully consider the Veteran's reports of a continuity of symptomatology is harmless, because; the Board has found the reports to lack credibility. Additional VA records were specifically requested from the VA Medical Centers (VAMC) at Wilkes-Barre, Allentown, Pennsylvania, and Bay Pines, Port Charlotte, West Palm Beach, and Fort Myers, FL. The record includes the treatment notes obtained from these requests. The parties agreed in the JMR that the Board had not provided sufficient reasons and bases for its findings with regard to RO compliance with the 2006 remand. The parties specifically noted that the Allentown VA outpatient clinic had reportedly not responded to the RO's request for treatment records from 1958; and that the Board had excused the absence of a response on the basis that the Veteran had testified that the records had been destroyed. The parties pointed to subsequent testimony in which the Veteran reported that the records had been sent to a VA clinic in Fort Meyers, Florida. The Board remanded the appeal in November 2010 so the agency of original jurisdiction (AOJ) could again seek any records extant from the Allentown outpatient clinic and to contact the Fort Meyers VA clinic to determine whether it had any identified records, especially any records dated in and after 1958. In January 2011, the RO wrote to the Allentown VA outpatient clinic and requested all records of the Veteran's treatment for a back disability since January 1958. It received records of treatment beginning in 1998. In January 2011, the RO also contacted the Fort Meyers VA outpatient clinic. It also received records of treatment beginning in 1998. In October 2011, the RO printed out records of treatment from the Fort Meyers outpatient clinic, but these did not pertain to the issue on appeal. The RO also asked the Veteran in January 2011 whether he had any relevant records. He furnished records of treatment through the Huntington VA Medical Center from the Fort Meyers outpatient clinic. These were dated beginning in 1999. In March 2012, an RO employee called the Allentown outpatient clinic and was informed that records were stored at the parent facility, the Wilkes-Barre VA Medical Center. An employee of the Wilkes-Barre VA Medical Center reported that the only available records were those transferred to Fort Meyers in 2000, and that they would date from the 1990's. The employee reported that they had no records for the Veteran from 1958. In a Memorandum dated in March 2012, the RO determined that no additional records were available and further efforts to obtain them would be futile. A RO letter also dated in March 2012 informed the Veteran of that fact and all steps taken. The Board agrees that given the responses from Allentown, Wilkes-Barre, Fort Meyers, and the Veteran; and the absence of evidence of other sources of the records; that further efforts to locate and obtain additional VA records related to the Veteran between 1958 and 1999 would be futile. Thus, VA has complied with the duty to assist the Veteran, as any further request for records would likely be futile. See 38 C.F.R. § 1.359 (c)(2). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The actions of the Board and the RO substantially complied with the requirements of the Joint Motion and the Board's remand. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden, 381 F.3d at 1167; Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, --- F.3d ---, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Analysis Service treatment records document the Veteran's treatment for low back pain in 1957. The Veteran testifies his back was injured when he was hit by a delivery truck backing into a loading dock. He asserts his currently diagnosed low back disability is a sequel to that injury, as he has experienced constant low back pain ever since the accident. The record reflects that the Veteran has a current low back disability. A July 2003 X-ray showed minimal osteoarthritis at L3 and L4. In February 2004, a Magnetic Resonance Imaging (MRI) of the Veteran's lumbar spine, obtained by a private doctor, showed borderline low-lying conus medullaris terminating at L2-3, mild right foraminal narrowing at L4-5 due to underlying disc bulge and minor facet arthrosis, and borderline central canal narrowing at L3-4 due to disc bulge and hypertrophy and buckling of ligamentum flavum. A March 2005 MRI report showed the Veteran had borderline to mild canal stenosis at L3-4, with mild encroachment on the exiting L4 nerve root, mild left paracentral disc bulge at L4-5 without nerve compromise, and facet degenerative arthrosis throughout the lumbar spine, most pronounced at the L3-4 and L4-5. A May 2006 MRI report showed borderline canal stenosis at L3-4 with only slight encroachment on the L4 nerve roots and stated that the findings were unchanged from the prior study. A May 2007 VA examiner diagnosed the Veteran with degenerative disc disease, right lumbar radiculopathy, and chronic low back pain. Therefore, the first element of service connection-a current disability, has been established. During the May 2006 hearing before the Board, the Veteran testified that he was taken to the health clinic at the Memphis, Tennessee, Navy Air Base where he was stationed, after being hit by the delivery truck. Service treatment records show the Veteran was treated three times over the span of one week for low back pain in July 1957. The treatment notes indicate, and the Veteran testified, that he was treated with pain medication and electronic heating pads. Therefore, the second element of service connection-an in-service injury, is satisfied. The Veteran has offered competent testimony that his back symptoms continued after his in-service injury. He has testified that he was experiencing back pain at the time of his separation from service, and that he sought VA treatment within one year of his separation from service and that he continued to experience symptoms and seek treatment. A VA treatment record dated in November 1999 shows that the Veteran reported a 40-year history of back pain. His report of a continuity of symptoms could serve to provide the nexus between an in-service injury and current disability. Barr, 21 Vet. App. 303. The Veteran testified that he sought VA treatment for his low back in 1958. As noted in the earlier discussion of VCAA compliance, efforts to obtain any existing VA records from that date were unsuccessful. The earliest existing VA records date from 1999. The evidence in the claims file shows that when the Veteran submitted his initial claim for benefits in May 1999, he reported no post-service treatment for a back disability (although VA treatment records indicate that he was initially seen in 1997). In an April 1997 VAMC radiology report, the staff radiologist stated that X-rays of the lumbar spine showed no abnormalities. There were no fractures or subluxations, the vertebral bodies were normal in height, the disk spaces were well maintained, the posterior elements were intact, and the pedicles and bone density were normal. A July 2001 MRI of the lumbar spine showed no evidence of herniated disc, central canal or neural foraminal stenosis, or any other significant abnormalities. In a December 1998 VAMC treatment note it was recorded that the Veteran had low back pain status post a motor vehicle accident in 1980. The Board notes the Veteran's denial that he was injured in that accident but did experience a lifting injury on another occasion in 1980. The only medical opinion of record that links the Veteran's current low back disability to his active service is an October 2010 opinion of Gary L. Winfield, M.D. Dr. Winfield notes the Veteran's reported history, as earlier noted, and-solely on that basis, opines the Veteran's current low back disability had its onset in active service. A medical opinion is not deficient because it relies on a patient's reported history. On the other hand, such a medical opinion is no better than the accuracy or credibility of the history on which it is based. As set forth below, the preponderance of the evidence convinces the Board that the Veteran's reported post-service history is not reliable. Hence, the other evidence of record is entitled to far greater weight than Dr. Winfield's opinion. In a March 2004 private treatment note, the Veteran was noted to have reported a history of a back injury in service, but his back problems from that injury had mostly resolved until an accident at work in 2001. The Veteran explained that he worked as a trucker and developed pain in his back while lifting objects and had reported back pain with occasional radiation into the right upper leg region. Contrary to Dr. Winfield's opinion, the May 2007 VA examination report reflects that, after reviewing the Veteran's case file, including service treatment records, the objective medical reports, and the Veteran's history and subjective reports of back disability, and after conducting a thorough physical examination, the examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, right lumbar radiculopathy, and chronic low back pain. The examiner concluded that the Veteran's current back disabilities were not related to service. The examiner explained that the since the July 2001 MRI showed no significant abnormalities and the subsequent MRI in February 2004 showed disc bulging, it was the examiner's opinion that the Veteran's current back condition likely developed during that interval. Therefore, the examiner concluded, it was less likely than not (less than a 50-percent probability) that the Veteran's low back disability was caused by, the result of, or related to the back pain identified during active service. The Veteran was afforded another examination while the case was on remand in 2012. The May 2012 VA examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran's history and his current diagnosis of degenerative disc disease. After the review of the claims file, recording the Veteran's reported history, and conducting a physical examination, the examiner opined there was less than a 50-percent probability that the Veteran's current low back disability is causally related to the 1958 in-service low back injury. The examiner noted the Veteran was able to return to full duty after the injury, and the 1957 physical examination at separation from service was negative for back complaints or findings. Further, the Veteran worked 20 years as a driver the U.S. Postal Service (USPS) after his separation from active service. The Board acknowledges the Veteran's assertions that the VA examiner's opinions are inadequate because the examiner reported that he drove a truck for the USPS. The Veteran asserts he never worked for the USPS. The Board notes no other entries in the claims file to support the notation in the examination reports that the Veteran worked for the USPS. On the other hand, the Board finds this of de mimimus significance. While the Veteran's employer may have been inaccurately identified, the Veteran himself reports he worked as a truck driver. The fact is that the examiner's point was that the Veteran was able to work after his separation from active service. The Board again notes the absence of any VA records related to the Veteran for the period 1958 to 1999. The Board also notes the Veteran's lay reports may not be rejected solely because of the absence of medical documentation. Davidson, 581 F.3d 1313. The totality of the evidence of record, however, convinces the Board that the Veteran's recent testimony and report in November 1999, after filing his claim, that there was a continuity of symptomatology, are not credible. His reports are inconsistent with earlier reports on the service separation examination and with his reports in 1998, 1999 and 2004 in which he indicated that his back symptoms had not been continuous since service and stemmed from various post-service injuries. The Veteran testified that he was assigned to light duty for the remainder of his service after the low back injury, although his separation physical examination was negative for low back problems. His service records reflect he was transferred to the Fleet Reserve after release from active service. A May 1958 Clinical Record Cover Sheet notes the Veteran's treatment at Tripler Army Hospital, Hawaii, for hand burns secondary to the explosion of depth charge detonators. Most noteworthy is that the injury occurred while the Veteran was serving afloat on the USS Edmonds-apparently during a tour of active duty for training. This means the Veteran was deemed physically fit for duty at sea in 1958, a year in which he asserts he sought treatment at VA for low back pain. Thus, on the basis of the entire record, including the VA examiners, who considered the entire history, including the Veteran's reports, see Buchanan, at 1336-7 (holding Board may find lay evidence lacks credibility where it is contradicted by the contemporaneous record), the Board rejects the Veteran's lay assertions. VA medical examiners noted X-ray and MRI examinations showed no abnormality of the Veteran's lumbar spine in July 2001 but a disc bulge in February 2004. Hence, the evidence of record shows arthritis did not manifest in service or within a year of the end of the period of duty service. Thus, there is no factual basis for service connection on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The preponderance of the evidence is against a finding that the Veteran's back disabilities had their onset in active service or are otherwise causally connected to his active service. Thus, the appeal is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for low back disability, including degenerative disc disease, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs