Citation Nr: 1311248 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 11-19 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back and spinal cord disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1943 to January 1946. He was awarded a Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. The appeal was subsequently transferred to the RO in Detroit, Michigan. The Veteran was scheduled for a Board videoconference hearing in March 2012 but did not appear, and absent attempting to reschedule this proceeding his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board remanded the appeal in August 2012. 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 & Supp. 2012). FINDINGS OF FACT 1. The Veteran's account of having sustained an in-service low back injury is presumed credible. 2. The preponderance of competent evidence is against a finding of a nexus between the injury and a present low back disorder and neurological disorder. CONCLUSION OF LAW The criteria to establish service connection for a low back and spinal cord disability are not met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 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 notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through the VCAA notice correspondence dated from December 2006 and July 2009, the RO notified the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). An addendum to the December 2006 VCAA letter provided notice regarding the downstream disability rating and effective date elements of a pending claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Both VCAA notice letters were issued prior to the January 2010 RO rating decision adjudicating the Veteran's claim. The RO (including through the Appeals Management Center (AMC)) has also complied with the duty to assist the Veteran, including attempting to obtain service treatment records (STRs) which are unavailable in this case. The Veteran was notified of alternative sources of evidence that may be used in the absence of such records. Records of private outpatient treatment have also been obtained. The Veteran has undergone a VA Compensation and Pension examination to determine the etiology of the condition claimed, consistent with the Board's remand directive. 38 C.F.R. § 3.159(c)(4). The Veteran provided several personal statements. He previously requested the opportunity for a Board hearing, but did not appear for the proceeding, and has not since requested a rescheduled hearing date. There is no indication of any further relevant evidence or information that has not already been obtained. The record is sufficient to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. The Merits of the Claim Generally, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1 (1999). Lay evidence may be competent to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) ruled that competence to establish a diagnosis can exist 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 professional. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see Bostain v. West, 11 Vet. App. 124 (1998). However, lay testimony is competent if it relates to matters within direct observation and firsthand knowledge of the observer. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Veteran's service medical file appears to have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Thus far, all reasonable measures to assist the Veteran in obtaining available relevant medical service evidence have been taken. The Veteran reports that he sustained an in-service back injury when an incoming artillery shell exploded near him, causing him to fall backward to the ground with a 60-pound radio attached to his back. He describes having sustained shell fragment wound injuries also as a result of this incident. The Veteran served in combat - the Veteran's account of the in-service incident is therefore presumed credible under the law. 38 U.S.C.A. § 1154(b) (there is sufficient proof of in-service incurrence of any disease or injury alleged to have been incurred in or aggravated by such service through lay evidence, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding that there is no official record of such incurrence or aggravation of the same). However, there must also exist probative evidence of a causal nexus between the claimed disability and military service. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Wade v. West, 11 Vet. App. 302, 306 (1998). The element of a "causal nexus" essentially means a causal connection between past injury, and the current disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Service connection was awarded for residual superficial scars, left gluteal and left scapular areas, related to shell fragment wounds. The underlying in-service injury to that award has been documented through Surgeon General's Office (SGO) extracts indicating a March 1945 hospital admission for treatment of wounds and/or lacerations to the abdomen, abdominal wall and pelvis, and back generally, due to artillery shell fragments. In a February 2003 letter, the Veteran's orthopedic physician (Dr. M.B.K.), the physician reported that the Veteran related a history of past back problems for the previous 30 years at least. He denied pain, numbness, tingling or radiation type problems. X-rays of the lumbar spine were obtained, which found significant spondylolistehsis at L4-5 of at least 50 percent, and narrowing and degenerative scoliosis. The impression was primary problem of drop foot with lumbar radiculopathy; spondylosis and spondylolisthesis. A follow-up evaluation report of December 2005 indicates that the Veteran had been having low back pain with numbness, tingling and pain down his right lower extremity. The Veteran stated that the problem happened in 2002 and it had been worsening. The impression in relevant part was lumbar spondylolisthesis at L4-5 and lumbar radiculopathy. An April 2009 x-ray of the lumbar spine at another private medical facility confirmed there were extensive degenerative changes of the lumbar spine, with grade-2 spondylolisthesis at the level of L4-5 and calcification of the abdominal aorta. In July 2009, at a clinic specifically for head and spine pathology and treatment, the Veteran reported low back pain radiating to the right lower extremity. He further stated that about 50 years previously while he was in the Army, he had to carry heavy objects on his back. According to the Veteran, he slipped and fell and he experienced problems with his back. A review of systems at that time was positive for low back pain and right lower extremity pain. The Veteran underwent a VA spinal examination in October 2012. The diagnosis was degenerative disease of lumbosacral spine and spondylolisthesis of L4; and radiculopathy of the bilateral lower extremities. The Veteran reported his essential military history as stated above, and added that he was then taken to the hospital and treated. The Veteran stated that approximately 10 years prior to the examination, he would get pain in the back with shooting pain, along with tingling and numbness in both legs, and the right leg was also affected. After the physical examination, the VA examiner stated: After reviewing [the] claims file, history, physical exam, standard medical textbook, [and based on] my experienced and expertise... patient is having x-ray diagnosis of anterolisthesis of C4 and spondylolisthesis of L4 a part of degenerative disease of the cervical and lumbosacral spine and radiculopathy of both lower extremities which are appropriate for [the] patient's age and degenerative disease [as a] natural process of aging. As per VA Form 21-2507 patient had laceration wound of abdomen and back due to artillery shell and fragments treated and resolved as there were not any retained metallic foreign bodies and also no documented evidence of chronic condition of [the] low back during service or in [the] civilian record immediately after leaving service. Patient mentioned that he had back problems starting in 2002 many years after leaving service. It is my opinion that [the] patient's current condition of lumbosacral and cervical spine or its aggravation is less than likely as not due to any incident of active military service, to include the presumed credible account of his in-service experiences. Given this finding and other evidence of record, the claim will be denied. There is no question that the Veteran served in combat, and his account of in-service events is therefore presumed credible under the law. However, the law requires competent evidence that the claimed condition is casually related to that in-service injury. Here the most probative evidence weighs against a causal nexus to service. The opinion of the October 2012 VA examiner effectively rules out the presence of a causal nexus to service, on the basis of a thorough physical examination, case history review and informed explanation. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion); Boggs v. West, 11 Vet. App. 334, 340 (1998). The Veteran did not have a chronic back condition documented from service, or otherwise for several decades following service discharge, up until 2002, indicating significant gaps in treatment history since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy post-service period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and is among those factors which weigh heavily against a claim.) Significantly, it is clear that the VA examiner considered the Veteran's presumed credible report of injury in service, but did not otherwise have a basis upon which to consider the Veteran's present condition to be of service origin. There is no contrary evidence of record establishing or otherwise suggesting that the requirement of causation has been met. The clinical history shows that while on some occasions the Veteran described a multi-year history of back problems, he has primarily indicated an onset within 5-10 years from the first documented record of back pathology from 2003. Thus, there is no confirmed long-term history of back problems since service, and the October 2012 VA examiner was correct in his report of the medical history as lacking such an ongoing back pathology. The Board has also considered the Veteran's own lay assertions on causation, however, ultimately the determination of causation in this case requires a medical assessment given the substantial lapse of time from initial injury to symptom onset of several decades, with no intervening treatment. Again, the Board does not question the extent and severity of in-service injury based on the Veteran's account. However, both the treatment history and the competent medical evidence does not support a finding of nexus. For these reasons, the Board is denying the claim for service connection for low back strain and spinal cord disability. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a low back and spinal cord disability is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs