Citation Nr: 1313236 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 11-00 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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). The Veteran served on active duty from November 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for a lumbar spine disability. The matter was previously remanded by the Board in March 2011 to afford the Veteran an opportunity to testify at a Travel Board hearing. A Travel Board hearing was held in August 2012 with the Veteran in Columbia, South Carolina, before the undersigned Acting Veterans Law Judge (AVLJ), sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The matter was then remanded by the Board in October 2012 for additional evidentiary development, and now returns for further appellate review. The Veteran's Virtual VA file has also been reviewed as part of his appeal, and the Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's diagnosed lumbar spondylosis and degenerative disc disease are not etiologically related to service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding the elements of a service connection claim and the evidence necessary to substantiate that claim. B. Duty to Assist The Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. VA attempted to obtain any outstanding Social Security Administration (SSA) records. However, in correspondence dated December 2011, VA was notified that there were no medical records associated with Veteran in SSA's possession. The Veteran was also afforded a VA examination as part of his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained in this case is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's lumbar spine condition. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). As noted above, the Veteran testified before the undersigned AVLJ at a Travel Board hearing in August 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the AVLJ who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ elicited testimony to substantiate the Veteran's claim, and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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. 38 C.F.R. § 3.303(d) (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012); see also 38 U.S.C.A. § 1154(a) (West 2002). B. Evidence Service treatment records are negative for any complaints, treatment, or diagnoses related to a lumbar spine condition in service. Pre-induction examinations in May 1951 and November 1951 were normal. A September 1953 separation examination was normal, and the examiner noted that while the Veteran was 10 pounds overweight, he was otherwise active, vigorous and healthy. Notably, during service, the Veteran underwent surgery to remove a pilodinal cyst, which included the use of spinal anesthesia. In July 1954, after his separation from service, the Veteran underwent an additional operation to remove a pilodinal sinus. VA treatment records dated August 2004 reflect a history of chronic low back pain dating back to 1993. He was diagnosed with arthritis, status post back surgery. The Veteran filed his current claim in June 2009. In a December 2009 statement, he stated that he underwent a back surgery in February 1952. He was administered an epidural, but this failed to numb him. He was administered a second epidural a few days later. This injection worked, and the Veteran underwent back surgery. Following a 2 or 3 week recovery period, he returned to basic training on light duty, and later served in Korea. After his discharge, he underwent additional surgery in 1954. He required more surgery in November 1993. He concluded by asserting that his back injury from basic training continued to give him pain and other problems to this day. Private treatment records dated January 2009 reflect a diagnosis of lumbar radiculopathy. A February 2009 MRI revealed disc bulges, spondylotic changes, lumbar disc degeneration and facet arthropathy. Additional records dated August 2009 reflect a diagnosis of spinal stenosis. In an April 2010 statement, the Veteran clarified that the attempt to administer a spinal injection for anesthesia during service caused damage to his spine which caused his chronic back disability for 56 years. Private treatment records dated January 2011 show the Veteran reported lumbar spine pain that began 15 to 20 years ago. The onset was spontaneous and gradual. A December 2011 general VA examination diagnosed lumbar degenerative disc disease and spondylosis. The Veteran and his wife testified at a Travel Board hearing in August 2012. They testified that he did not have a back condition prior to entering service. During basic training, he underwent back surgery and was sent home for a period of recovery. He eventually returned to complete basic and advanced individual training. Later, he served in Korea as an infantryman, and his duties required him to carry about 180 pounds of equipment. He experienced back pain during this time and was treated with anti-inflammatories. A VA examination was conducted in January 2013. The claims file was reviewed by the examiner, who noted the Veteran underwent surgery for a pilodinal cyst in service. The Veteran was administered spinal anesthesia, and reportedly developed back pain as a result. Over the years, the pain had progressively worsened. The examiner diagnosed the Veteran with degenerative disc disease and spondylosis, but stated that the condition was less likely than not related to service. This was based on the fact that there was no chronic back condition noted in the service treatment records, and that there was no known correlation between spinal anesthesia and the development of degenerative disc disease or spondylosis. C. Analysis Based on the evidence of record, the Board finds that service connection for a lumbar spine disability is not warranted. Although the Veteran is currently diagnosed with degenerative disc disease and spondylosis, the overall weight of the evidence is against a finding that these conditions were incurred in or otherwise related to service. Initially, the Board notes that the Veteran presented statements regarding "back surgery" in service. His service treatment records clearly document surgery to remove a pilodinal cyst, both during and after service. However, this is not a condition of the lumbar spine, and service connection for the residuals of a pilodinal cyst was already denied in an October 1953 final rating decision. There are no records pertaining to a procedure in service specifically involving the spine. Therefore, while the Board has considered the Veteran's statements in this regard, the record is clear that he did not undergo surgery for a lumbar spine condition in service. Furthermore, while the Veteran has asserted that his current lumbar spine condition is the result of spinal anesthesia administered during his surgery in service, neither he nor his wife have not demonstrated the necessary knowledge or expertise to render such an opinion regarding the etiology of conditions such as degenerative disc disease and spondylosis. Therefore, the testimony from the Veteran and his wife is not considered competent medical evidence and does not establish that the Veteran's current condition is etiologically related to spinal injections in service. In contrast, the January 2013 VA examiner stated that there was no known correlation between spinal anesthesia and the Veteran's current conditions. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. The examiner is qualified to render such an opinion, and there is no other competent opinion in the record to refute this conclusion or to otherwise suggest that the Veteran's current lumbar spine condition is related to service. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Because he served in combat, the Veteran's statements regarding a back injury in service are sufficient proof of such an injury, regardless of the lack of any contemporaneous documentation. However, while the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, there are no documented complaints of lumbar spine symptoms in service. Moreover, the Veteran filed his initial claim for benefits shortly after his discharge from service, but did not report a lumbar spine condition. Finally, VA treatment records from 2004 show the Veteran reported the onset of his low back pain as 1993, and private treatment records dated January 2011 show the Veteran reported the onset of his back pain as "15 or 20 years ago." These facts weigh heavily against the claim he now makes that he has had problems ever since his separation from service in 1953. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The preponderance of the evidence is against finding that the Veteran has a lumbar spine condition etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs