Citation Nr: 1311098 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 11-21 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1960 to April 1962. This matter is on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By that rating action, the RO, in part, denied service connection for a back injury. The Veteran appealed this adverse determination to the Board. In November 2012, the Board remanded the issue on appeal for additional development. Specifically, to schedule the Veteran for a VA examination of his spine with an opinion as to the etiology of any current present low back disability. VA examined the Veteran in January 2013. A copy of the examination report has been associated with the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the more competent, probative, and persuasive evidence of record weighs against a finding that the Veteran has residuals of a low back injury that are related to an incident of military service, to include as a result of having carried heavy equipment and being struck by a radio during a motor vehicle accident; nor is there evidence of arthritis of the low back to a compensable degree within a year of service discharge in April 1962. CONCLUSION OF LAW The criteria for establishing service connection for residuals of a back injury have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Before addressing the merits of the issue on appeal, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The 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). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). VA provided the Veteran with pre-adjudication notice on the Pelegrini II VCAA elements in a November 2009 letter. The letter informed the Veteran to let VA know of any evidence he thought would support his claim of entitlement to service connection for residuals of a back injury, that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send such evidence. The United States Court of Appeals for Veterans Claims (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, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO informed the Veteran of the Dingess elements via the above-cited letter. The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA has also fulfilled its duty to assist the Veteran with respect to his claim on appeal. The RO has obtained the Veteran's service treatment records (STRs) and VA and private outpatient treatment and examination records. Further, the Veteran has submitted numerous statements in support of his appeal. In November 2012, the Board, in part, remanded the claim on appeal to obtain an examination with an opinion with respect to etiology of the Veteran's residuals of a low back injury. 38 C.F.R. § 3.159(c) (4). VA examined the Veteran in January 2013. A copy of this examination report has been associated with the claims file. The January 2013 VA examiner provided a comprehensive opinion as to the etiology of the Veteran's low back after a physical evaluation of the Veteran's spine, and a review of the claims file, to include the Veteran's in-service history with respect to his spine. The January 2013 VA examination report is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for his opinion, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that when VA undertakes to provide a VA examination, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2013 VA examination obtained in this case is more than adequate, as it was predicated on a full consideration of the VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record, to include his treatment history, and the statements made by the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Given the foregoing, the Board finds that the RO has substantially complied with the Board's November 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that there is no further assistance that would be reasonably likely to substantiate the claim for service connection for residuals of a back injury. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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. Legal Criteria 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 establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). In this case, the presumption does not apply because there is no medical evidence that the Veteran manifested arthritis of the spine to a compensable degree within one year of service discharge in April 1962. See 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption 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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Legal Analysis The Veteran seeks service connection for residuals of a low back injury. He contends that his current low back disability is the result of having carried heavy equipment in poor terrain. (See Veteran's handwritten note on a Xeroxed photograph taken of him during service, received by the RO in February 2010). He also contends that he has a low back disability as a result of his back being hit by a radio during an in-service motor vehicle accident. (See January 2013 VA examination report). The Board finds, and as will be explained in more detail below, that the preponderance of the more competent and probative evidence of record is against an award of service connection for residuals of a low back injury. The evidence is against a relationship between the Veteran's currently diagnosed lumbar strain to an incident of military service, to include the claimed motor vehicle accident. The Board finds that the first element of direct service connection has been met, namely there is evidence that the Veteran currently has a low back disability. A disability exists when there is a disability when a claim for it is filed or at any time during the pendency of such claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). VA received the Veteran's original claim for compensation for a low back disability in October 2009. (See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received by the RO in October 2009). A VA examiner diagnosed the Veteran with lumbar strain in January 2013. (See January 2013 VA examination report). Thus, the evidence shows that the Veteran has current low back disability. Hickson, supra. With respect to crucial Hickson element (2), in-service disease or injury, the Veteran's service records do not include any complaints of, treatment for, or diagnoses of any low back disability. There is no documentation of any in-service motor vehicle accident, or a low back injury resulting therefrom. A February 1962 service discharge examination report reflects that the Veteran's spine was evaluated as "normal." On an accompanying Report of Medical History, the Veteran denied having had any bone, joint, or other deformity. In late April 1962, the Veteran certified that there had not been any change in his physical condition since his February 1962 examination. The only evidence of any in-service injury to the low back is the Veteran's assertions. As noted above, the Veteran contends that his current low back disability is the result of having carried heavy equipment in poor terrain. He also contends that he has a low back disability as a result of his back being hit by a radio during an in-service motor vehicle accident. The Veteran's DD 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that his military occupational specialty was a light weapons infantryman. It accordingly stands to reason that he would have been required to carry heavy weaponry, [as did other veterans]. However, the evidence of record does not demonstrate that he suffered any low back injury as a result thereby, or as a result of a motor vehicle accident. The first post-service evidence of any low back disability was in 1988. At that time, the Veteran sought treatment from a private physician and reported having a backache for the previous nine (9) months. The Veteran did not provide any in-service history with respect to his lumbar spine. (See October 1988 report, prepared by J. K., M. D.). Thus, the record includes highly probative objective and lay evidence reflecting that the Veteran endured no low back injury during his active duty military service. Hickson element (2) remains unsatisfied, and the Veteran's service-connection claim must fail on this basis. With respect to Hickson element (3), nexus or relationship, there is only one opinion and it is against the claim. In January 2013, after a recitation of the Veteran's in-service history with respect to his spine, which is consistent with that previously reported here, and a physical evaluation of the spine, the VA examiner concluded that it was less likely than not that his back condition was due to his military service. The January 2013 VA examiner reasoned that there was no documentation of any back complaints in the Veteran's STRS, to include his 1962 service separation examination report. The January 2013 VA examiner also related that as the Veteran reported that he was able to continue to perform his duties despite the in-service injury, the examiner concluded that the injury did not produce any significant intra-articular damage of the spine. The January 2013 VA examiner also noted that the first post-service evidence of any back complaints was not until 1988. The Board finds the January 2013 VA examiner's opinion to be of high probative value as it is consistent with the STRs, namely an absence of any low back disease or injury during military service, and an absence of any post-service back complaints until 1988. In addition, in formulating his opinion, the January 2013 VA provided a rationale for his respective opinion, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, supra. The Board notes that the Veteran is competent to testify as to his own observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) [lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge]. In this connection, the Veteran has maintained that he injured his back from carrying heavy equipment during military service and as a result of an in-service motor vehicle accident in which a radio fell onto his spine. The Board is of course aware of the provisions relating to continuity of symptomatology, discussed above. See 38 C.F.R. § 3.303(b) (2012). After a thorough review of the evidence of record, the Board finds that the Veteran's lay testimony regarding continuity of symptomatology, although competent, lacks sufficient credibility. Crucially, the Veteran's assertions of continuity are contradicted by the medical evidence of record, and the Veteran's own statements as reported to medical professionals. As noted above, there is no mention of any back injury or disability or motor vehicle accident in the Veteran's STRS. As noted above, a February 1962 service discharge examination report also reflects that the Veteran's spine was evaluated as "normal" at discharge. While it may be argued that the Veteran may not have mentioned back pain at the time of the February 1962 separation examination through oversight, the Board finds it hard to believe that he would have offered no mention of his back having been injured, especially if the back pain had been chronic from carrying heavy equipment and injured during a motor vehicle accident. Furthermore, the first post service treatment of the back was not until 1988, over two (2) decades after service discharge in 1962. Of significant importance is the fact that in 1988, when he initially complained of having backaches for the previous nine (9) months, the Veteran did not provide any in-service history with respect to his spine. The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes years ago than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. The lack of complaints of back pain [both in-service and for years after his separation] also weighs against a finding of continuity. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. It has also been recently held by the Federal Circuit in Walker v. Shinseki, No. 10-2634 (Fed. Cir. February 21, 2013), that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2012), and lumbar strain is not one of the listed conditions. Further, as was discussed above, the objective medical evidence of record is against a finding that the Veteran's current lumbar strain is in any way related to his military service. The January 2013 VA examiner pertinently opined to the contrary. This opinion is against the claim and is uncontroverted. To the extent the Veteran himself now attributes his current lumbar strain to having carried equipment and from having a radio fall onto his back as a result of a in-service motor vehicle accident, the Board notes that the question of whether the such disability was caused or aggravated by his active duty service requires opinions from persons with medical expertise, as the answer cannot be competently ascertained through lay observation alone absent a finding of continuity of symptomatology. See 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. While the Veteran is competent to report that he carried heavy equipment and was involved in a motor vehicle accident in service, he is not competent to provide an opinion as the etiology of his current lumbar strain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ["Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."]. Thus, the Board finds that the more competent, probative, and credible evidence of record [both lay and medical] supports a finding that the Veteran's back pain symptomatology had its onset long after his separation from service, and that a continuity of symptomatology since discharge from active service in 1962 does not exist. Accordingly, Hickson element (3), relationship or nexus, has not been satisfied, and the Veteran's service-connection claim for residuals of a back injury also fails on this basis. Service connection for residuals of a back injury is therefore not warranted. ORDER The claim for service connection for residuals of a back injury is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs