Citation Nr: 1311225 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 07-20 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for diabetes mellitus type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1994 to April 1995 and from September 2002 to August 2003, with prior periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Philadelphia, Pennsylvania in April 2011. A transcript of this proceeding has been associated with the claims file. At the hearing, the Veteran submitted evidence along with a waiver of RO consideration. This matter was previously before the Board in September 2011. The Board remanded the case for additional development. The Veteran has contended that his service-connected disabilities have prevented him from obtaining and maintaining gainful employment. The RO has not explicitly adjudicated the claim for entitlement to a total disability evaluation based upon individual unemployability (TDIU). The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. Thus, the Board does not have jurisdiction over it, and this issue is REFERRED to the RO for appropriate action. The issue of entitlement to service connection for diabetes mellitus type II is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The current back disability did not have its onset during active service or result from disease or injury in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Prior Board Remand In September 2011, the Board remanded the case for further evidentiary development, specifically to: (1) verify all periods of active reserve service, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA); (2) obtain the Veteran's Social Security Administration (SSA) records; and (3) conduct VA examinations of the Veteran's back, left ankle, and diabetes mellitus and provide an opinion on whether or not these disabilities are related to service. Based on the Veteran's Leave and Earning Statements (LES) obtained from the Defense Finance and Accounting Service (DFAS), all relevant periods of active reserve service, ACDUTRA, and INACDUTRA were verified. Additionally, the Veteran's SSA records were obtained and he was provided a VA examination. There was substantial compliance with all the remaining remand orders so the Board may continue with its determination of entitlement to service connection for a back disability. II. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in December 2006, November 2007 and April 2008 letters and the claim was subsequently readjudicated, most recently in a December 2012. Mayfield, 444 F.3d at 1333. The Veteran's service treatment records from 1993 to 1995, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's complete service treatment records from 2002-2003 cannot be obtained despite numerous attempts by the RO. The RO determined that further attempts to obtain these treatment records would be futile. 38 C.F.R. § 3.159(c)(2); see Formal Finding on Unavailability of Service Records, 2007. The Veteran was informed of the attempts to obtain those records and on numerous occasions was asked to provide any records in his possession. The RO did obtain some relevant personnel records containing medical information from the Veteran's active duty service in 2002 and 2003. Additionally, the Veteran is in receipt of disability benefits from the Social Security Administration and these records have been obtained. 38 C.F.R. § 3.159 (c)(2). The Veteran was afforded a VA back examination in October 2011 and an independent medical opinion was obtained in December 2012. The independent medical opinion is sufficient, as it considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Thus, VA's duty to assist with respect to obtaining an examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim for service connection for a back disability at this time. III. Service Connection for Back Disability The Veteran contends that he incurred the disability on appeal as a result of active duty service. 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., the Veteran's period of active duty) does not obviate the need to establish that the claimant is also a "Veteran" for purposes of the period of ACDUTRA or INACDUTRA where the claim for benefits is premised on that periods of ACDUTRA or INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415 (1998). The record shows the presence of a current back disorder. Following service, records show that left sided L4-L5 radiculopathy was diagnosed via EMG in July 2006, three years after separation from service. See Wilkes-Barre VA Medical Center (VAMC) Notes, June 23, 2006. In November 2006, X-rays of the lumbar spine were normal. Id., November 9, 2006. In October 2008, an MRI of the Veteran's lumbar spine showed no abnormal findings and the Veteran's only back issue was still noted as lumbar radiculopathy L4-L5. Id., October 27, 2008. In November 2011, the Veteran underwent an MRI of his lumbosacral spine that revealed mild facet degenerative joint disease of the lower lumbar spine at L4-L5 and L5-S1. Id., November 7 and November 17, 2011. The Veteran's back disabilities are currently characterized as lumbar spondylosis and lumbar radiculopathy. Id., November 2, 2012. The Veteran contends that his current back disability was incurred during service, due to injuries sustained from marching up a hill during National Guard training on April 7, 2001. Records from DFAS confirm that the Veteran was on drill status on April 7, 2001. That service is INACDUTRA. See Veteran's LES; 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). The record further shows that on April 7, 2001, the Veteran was admitted to the hospital with a complaint of low back pain and radiating right leg pain that began after walking up a hill during his National Guard Duty. The diagnosis was low back pain- suspected strain. See Franklin Medical Center, Emergency Room Treatment Form, April 7, 2001. Following a careful review of the record, the Board finds that the evidence does not show a nexus between the Veteran's current back disability and the April 2001 in-service back pain-suspected strain. The Veteran's lay statements regarding the date of onset of his current back issues, while competent, are not credible. Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness and may establish the presence of a condition during service. Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). Symptoms of the Veteran's back disability are capable of lay observation with regard to the pain associated with the condition. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Id. (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")). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran has at various times claimed his back disability did not begin in April 2001, but rather began in 1992, the late 1990s or 2000. See Wilkes-Barre VAMC Records, July 27, 2012 (Veteran complains of chronic pain for the last 20 years in his back); Wilkes-Barre VAMC Records, October 15, 2012 (Veteran acknowledged problems with chronic pain in his back and lower extremities dating back to the late 1990s); Wilkes-Barre VAMC Records, November 17, 2011 (Veteran has history of low back pain since 2000). These inconsistencies in the record weigh against the Veteran's credibility as to the on-set date of his current back disability. See Madden, 125 F.3d at 1481 (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service). Additionally, the Veteran's service treatment records are silent for any complaints, findings, or treatment of a low back disability. His March 1993 enlistment examination and April 1995 separation examination note his spine and other musculoskeletal as being normal and the Veteran self-reported on both examinations as having no recurrent back pain. Although the Board finds the Veteran did experience an injury in April 2001 while on INACDUTRA, when the Veteran entered active duty service again on September 3, 2002, he self-reported that he did not have any medical problems. See Pre-Deployment Health Assessment Form, September 8, 2002. Most notably, on October 1, 2002, the Veteran wrote in a medical questionnaire that had not medical issues at that time and he no longer has back pains. See DA Form 7349-R, October 1, 2002. On the Veteran's July 27, 2003 Post-Deployment Health Assessment Form, the Veteran noted that he does not currently have back pain and did not develop back pain at anytime during his deployment and denied having had any injury during deployment for which he did not seek care. On the Veteran's July 27, 2003 Report of Medical Assessment, he did not list any back issues. He specifically complained of ankle problems and denied any other concerns. It is permissible for the Board to conclude that contemporaneous evidence has a greater probative value than subsequently reported history. Curry v. Brown, 7 Vet. App. 59, 68 (1994). While the record shows the Veteran was diagnosed with low back pain-suspected strain on April 7, 2001, he has stated as various times that his back issues actually began sometime between 1992 and 2000. There is no evidence of the presence or treatment of a back disability until June 2006, three years post-service and five years after the in-service injury that allegedly caused his current back issues. The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether a current injury or disease was incurred in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Upon entry into active service in 2002, the Veteran's statements that his back pains were gone and he did not have any medical problems are in direct conflict with his current assertions of incurrence of his current back issue in 2001. Not only are these later statement made in the Veteran's own pecuniary interest but they also contradict his earlier statements that as of 2002 he had no back issues. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006). Overall, due to the conflicting nature of the Veteran's statements as to the onset date and continuous nature of his current back condition, made after the fact, and in his own interest, the Board finds the Veteran is not credible. See Madden, 125 F.3d at 1481. While the Veteran's reported history of a 2001 in-service injury is credible, the Board does not find the Veteran's claim of ongoing back issues to be credible. Rather, the Board finds that the Veteran suffered from back pain after an injury during INACDUTRA in April 2001, but that this back pain was resolved by the time he entered active duty in 2002. The Board finds that there is no credible evidence of record that the Veteran suffered from any disease or injury during his 2002-2003 active duty service resulting in a back disability. The Board acknowledges that a VA and private examination of the Veteran's back was conducted and both examiners provided a positive nexus opinion. See VA Back Examination, October 2011; see also Weisenfluh Rheumatology Examination, January 2011. However, both examiners based their opinions on the fact that the Veteran was diagnosed with back pain- suspected strain in April 2001 during INACDUTRA without consideration of the Veteran's statements upon enlistment in 2002 that he no longer had back pain and 2003 statements that he did not have back pain at any time during his deployment. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board may reject a medical opinion because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). The only evidence cited by the VA examiner in support of her opinion was the Veteran's statement that he experienced worsening of his back issues after, not during, his active duty service. The private examiner based his opinion on the fact that the Veteran claims his back issues have persisted since 2001. However, this statement is not credible in light of the Veteran's 2002 and 2003 in-service statements that he had no back issues. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion that is based on facts provided by the veteran that have previously been found to be inaccurate). Finally, both examiners failed to take into account the fact that the Veteran did not seek treatment for back issues until 2006, three years post-service and five years after the alleged onset of the original back pain. Based on the foregoing problems with these medical opinions, they are of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion; it is the factually accurate, fully articulated, sound reasoning, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). As a result of the inadequacies in the VA examiner's opinion, VA requested an independent medical opinion. That opinion was rendered following review of the complete claims file and contains clear conclusions with supporting data and reasoned medical explanations. This medical opinion is therefore entitled to significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 300-01. The examiner discussed the October 2011 VA back examination and its objective findings. However, the examiner opined that the Veteran's claimed back condition is less likely than not aggravated by or proximately due to his military service. The rationale provided was that while the Veteran did hurt his back in April 2001, this condition was acute and transitory in nature. The examiner based this finding on the fact that there is no documentation for diagnosis, treatment, or injury of the lower back region during service and the first time the Veteran complained of back issues was 2006, three years post-service. Additionally, in 2002 the Veteran enlisted into active duty and no back issues were reported; therefore, the examiner opined that the Veteran's back was normal at that time. Finally, the examiner reasoned that based on the Veteran's currently diagnosed back condition, it is as least as likely as not that his condition is a function of his normal and natural aging process. The Board finds that opinion more probative. See Prejean v. West, 13 Vet. App. 448 (2000) (Board did not err in finding unfavorable medical opinions more probative because the unfavorable opinions discussed why the favorable opinions were not persuasive). Although the opinion referred to a lack of documentation of back complaints during the Veteran's last period of active duty service, the Board notes that the lack of such documentation was not the basis for the opinion. Rather, the opinion provider commented that the Veteran denied having any back problems during that time period. Cf. Buchanan, 451 F.3d at 1335-37. The Board finds there is no credible evidence of record showing the Veteran's current back disability had its onset or was aggravated during his military service. See Shedden, 381 F.3d at 1167. In sum, the Veteran has a current back injury, he experienced back pain during INACDUTRA in 2001, Veteran's claims of date of onset and symptoms of back issues since are not credible based on his 2002 and 2003 in-service statements denying back issues and lag-time between the injury in 2001 and first treatment for back issues in 2006, the VA and private examiners' positive nexus opinions have limited probative value, and the independent medical opinion, which is entitled to significant probative value, concludes the current back disability is not related to service but rather is the result of the natural aging process. Consequently, the Board must find that the preponderance of evidence is against the claim; the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107. ORDER Service connection for a back disability is denied. REMAND The Veteran served on active duty from February 1994 to April 1995 and from September 2002 to August 2003. In November 2004, the Veteran was admitted to the emergency room after passing out. He provided a history of a forty pound weight loss, increased thirst and increased urination for the prior three months. See Emergency Department Record, Berkshire Health Systems, November 26, 2004. The Veteran's blood sugar was 369 and he was diagnosed with diabetic ketoacidosis. Id. The Veteran has filed for entitlement to service connection based on diabetes incurred in-service or within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). In the October 2011 VA examination, obtained pursuant to the Board remand, the examiner stated that she could not provide an opinion as to whether the Veteran's diabetes had its onset during active service or within one year from release of active service without resort to mere speculation. The examiner requested that the case be referred to an endocrinologist for a medical opinion. Thus, the requested etiology opinion has not been obtained. A remand by the Board confers on a Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, it is necessary to remand the issues of entitlement to service connection for diabetes in order to obtain a VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA outpatient treatment records from the Wilkes-Barre VAMC for the period from December 2012 through the present. A response, negative or positive, should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination with an endocrinologist to determine the nature, extent, and etiology of any diagnosed diabetes. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All necessary tests should be conducted and all clinical findings reported in detail. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and determine the nature, etiology and symptoms of any diabetes. Based on the examination and review of the record, the examiner is requested to address the following: Is it at least as likely as not (i.e., probability of approximately 50 percent), that any diagnosed diabetes had its clinical onset in-service, or within one-year of separation from service, or are otherwise related to active duty, including the Veteran's forty pound weight loss, increased thirst and increased urination beginning in August 2004. A complete rationale should be given for all opinions and conclusions expressed. The examiner is reminded that the lack of an official record of diabetes in the Veteran's service treatment records is not fatal to this claim. The examiner must address the above-noted lay statements of the Veteran. 3. After completion of the above, readjudicate the issue on appeal of entitlement to service connection for diabetes mellitus type II. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs