Citation Nr: 1313407 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 03-25 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of a back injury to exclude rheumatoid/psoriatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to November 1964. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before a Decision Review Officer (DRO) and the undersigned Veterans Law Judge at hearings held at the RO in February 2004 and March 2011, respectively. Transcripts of these hearings have been associated with the claims file. Historically, the Board denied the instant claim in an August 2005 decision. The Veteran subsequently appealed this decision to the Court of Appeals for Veterans Claims (Court). In an April 2008 Memorandum Decision and Order, the Court vacated the Board's August 2005 decision and remanded the matter to the Board. Thereafter, in October 2008, October 2010, May 2011, and September 2012, the Board remanded this appeal for additional evidentiary and procedural development. Most recently, the case was returned to the Board in February 2013. As a final preliminary matter, the Board notes that a review of the Virtual VA paperless claims processing system does not reveal any documents pertinent to the instant appeal. FINDING OF FACT A chronic low back disability, currently diagnosed as degenerative disc and joint disease with lumbar dextroscoliosis, first manifested many years after the Veteran's active duty service, and there is no competent, probative evidence indicating that there exists a medical relationship, or nexus, between this disability and any in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for residuals of a back injury to exclude rheumatoid/psoriatic arthritis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2001 and November 2008 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The November 2008 letter also notified the Veteran of how VA determines the disability rating and effective date. The claim was most recently readjudicated in a February 2013 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including obtaining service and post-service treatment records pertaining to his claimed residuals of low back injury. Pursuant to the Board's prior remands, VA has given the Veteran an opportunity to submit additional evidence and information in support of his appeal. It has also obtained all relevant and available VA treatment records as well as notified the Veteran of the unavailability of any treatment records requested but not obtained. Finally, VA has afforded the Veteran multiple examinations and requested medical opinions that, as discussed below, resulted in sufficient evidence by which to make a determination regarding the issue of service connection. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim, to include the opportunity to present oral testimony on two occasions, and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Merits of the Claim At the outset, the Board notes that it has reviewed all the evidence in the Veteran's claims file and the electronic, paperless Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Applicable law and regulations provide that service connection may be granted for 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. Generally, this requires competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may also be warranted for those diseases found at 38 C.F.R. § 3.309(a) if there is a showing of chronic disease during service with subsequent manifestations of that chronic disease after service that cannot be clearly attributed to intercurrent causes or where the condition is noted in service and there is continuity of symptomatology sufficient to establish chronicity since service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran seeks service connection for residuals of a back injury, to exclude rheumatoid/psoriatic arthritis, which he claims began during his period of active duty service between March and November 1964. In various written statements and testimony presented during this appeal, he describes an injury during service in which he slipped and fell in the Chow Hall and landed on his back atop a steel pipe that was sticking up from floor. He sought evaluation for this injury and, per the Veteran, an x-ray was completed, he was treated with medication, and he was given light duty for approximately one week. The Veteran contends that he continued to have back problems following his in-service injury and that he sought treatment by a private chiropractor shortly after service for low back pain. Service treatment reports reflect that the Veteran was seen on sick call in April 1964 following a slip and fall injury in the Chow Hall. At the time of the evaluation, he indicated injury to his right hip; there was no mention of any specific back problems. Clinical examination failed to demonstrate any deformity and the assessment was that there was no evidence of injury. The Veteran's remaining service treatment records are silent for further complaints of back injury or problems. His October 1964 separation physical examination is also negative for any clinical abnormality of the spine, and on his Report of Medical History he specifically denied any bone or joint deformity, or arthritis. Post service, in October 1973, the Veteran filed a claim for compensation benefits for rheumatoid arthritis of the back, legs, and feet. At a VA examination dated that same month, the Veteran indicated that he had begun having arthritic pains in his left ankle and feet approximately two years earlier which had since spread to include his back, shoulder, knees, and right ankle. There was no mention of any other back complaints or injury. X-rays of the Veteran's joints, including the lumbar spine, were essentially normal; the assessment was rheumatoid arthritis involving multiple joints and psoriasis. In March 1981, the Veteran sought medication refills through VA for privately treated rheumatoid arthritis that began ten years earlier. X-rays taken that same day revealed "no bony radiopathology." The Veteran was referred to rheumatology; the June 1981 consultation report indicates an assessment of rheumatoid arthritis with coincidental psoriasis. In August 1981, the Veteran was evaluated in conjunction with a claim for disability benefits from the Social Security Administration. The examination report reflects a history of rheumatoid arthritis diagnosed eleven years earlier while being treated for low back pain; it also notes a four-month history of treatment at the Huntington VA Medical Center (VAMC). Following an examination of the Veteran, the physician's assessment was psoriasis and possible psoriatic arthritis; rule out rheumatoid arthritis. The Veteran continued to be seen by rheumatology at the Huntington VAMC for rheumatoid/psoriatic arthritis. In April 1993, he presented for emergency treatment of an injury described as a "tear" in the back upon bending. Right scoliosis was noted on physical examination, and x-rays revealed degenerative joint disease at L1-2 and L2-3, most likely of a chronic nature. The Veteran was seen approximately two weeks later for rehabilitation therapy; he gave a history of chronic low back pain over the past two to three years. The assessment was low back pain secondary to degenerative arthritis in the lumbar spine. Subsequent treatment reports show continued treatment for rheumatoid/psoriatic arthritis. There is also evidence of continued evaluation and treatment for arthritis and degenerative disc disease, particularly at L2-3. VA examinations dated in April 2010 and October 2011 show currently diagnosed degenerative joint disease and degenerative disc disease of lumbar spine with lumbar dextroscoliosis. Pertinent to this appeal, the foregoing evidence does not demonstrate that the Veteran was diagnosed with a chronic low back disability during service. Rather, the earliest medical evidence of a chronic low back disability (other than rheumatoid/psoriatic arthritis) is not until the 1990s, nearly thirty years after his separation from service. As discussed above, in 1993, the Veteran reported a two- to three-year history of chronic low back pain which was attributed to degenerative joint disease at L1-2 and L2-3 shown on x-ray. Medical evidence, however, is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. 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' such as actual treatment records). A veteran, as well as other lay persons, are competent to report what he or she can observe and feel through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has considered the Veteran's contentions and the testimony offered at his hearing that he has experienced low back problems since incurring injury to his lower spine during service and that he sought treatment by a private chiropractor shortly after service for low back problems. It has also considered the statements proffered by his father and ex-wife that he continued to seek treatment at the Huntington VAMC throughout the 1970s for back/arthritis problems. In this case, however, the Board finds that the history of a low back injury during service with continued symptoms is not credible. At the outset, the Board notes that it must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, the lack of any mention of continued low back problems in the Veteran's service treatment records weighs heavily against the credibility of his assertions that he did, in fact, continue to experience low back pain following his slip and fall injury. But see Buchanan, 451 F.3d at 1336. Furthermore, he explicitly denied a history of bone or joint deformity and arthritis on his October 1964 Report of Medical History and clinical examination at separation was negative for any abnormality of the spine. Also weighing against the credibility of the Veteran's reported history is an October 1964 letter from a construction company in his service treatment records that states he is capable of performing mechanical work on heavy machinery and can operate construction equipment. Certainly if the Veteran did have a chronic low back problem at the time of his separation from service, heavy labor would have been difficult. The Board acknowledges that the Veteran has reported post-service treatment for low back problems shortly after separation on multiple occasions. There is, however, inconsistency in his reports. In this regard, he testified during his February 2004 DRO hearing and March 2011 Board hearing that he first began experiencing problems with his feet and legs in 1966 and that he sought evaluation of these complaints from a private physician. Conversely, written correspondence dated in June 2001 reflects that he reported problems beginning in 1965 with subsequent treatment by a private chiropractor for two weeks. Unfortunately, records associated with this treatment are unavailable for review. The Board notes, however, that the service treatment records contain an April 1968 Standby Reserve Notice and Report (Standby Report) in which the Veteran reported that he was "doctoring" for back trouble as his lumbosacral area had been injured the preceding June. To the extent that the Veteran's more recent statements were offered many years after service when his memory might have diminished and reflect some uncertainty regarding the correct date/year of treatment, the Board finds the April 1968 Standby Report most likely references the treatment now claimed by the Veteran. Pertinent to this determination, such Standby Report indicates that treatment was associated with a post-service back injury; it does not appear to have been affiliated with a continuation of problems since service. Similarly, the statements proffered by the Veteran's father and ex-wife that he sought treatment for back problems or arthritis in the 1970s are not clear as to whether such treatment was for residuals of his in-service injury or for manifestations of rheumatoid arthritis, which according to the Veteran was diagnosed in the early 1970s. Additionally, the Board notes that it questions whether the Veteran was, in fact, treated at Huntington VAMC during the 1970s in light of the aforementioned August 1981 Social Security Administration examination. As discussed above, the Veteran reported only a four-month history of treatment at this facility during the examination; this corresponds to the records obtained from the Huntington VAMC, which date back to March 1981. Finally, the Board notes that the Veteran did not file his claim for compensation for residuals of a back injury until March 1999, more than thirty years post-service. He did, however, file a claim for rheumatoid/psoriatic arthritis in October 1973. Statements and evidence associated with this claim for compensation note complaints of back problems, but do not contain any reference to an in-service low back injury or disease other than rheumatoid arthritis. Additionally, records affiliated with this claim show that the Veteran himself reported joint problems beginning in 1970-1971 which began in his left ankle and feet and spread to other joints, including the back. Similarly, contemporaneous treatment evidence dated in the 1980s, as discussed above, relate an onset of arthritic pains beginning no earlier than 1970. In assessing the probative value of the lay evidence of record, the Board notes that it is inclined to find the statements presented in connection with treatment and contemporaneous to post-service events to be more credible as there is no indication that the Veteran had any reason to not provide an accurate medical history to the evaluating physician or authority. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Conversely, his more recent statements regarding a history of in-service back injury with subsequent symptoms were made in connection with a claim for compensation. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). These contemporaneous treatment records not only fail to contain reference to an in-service low back injury, but also indicate that the Veteran's low back symptomatology has not been continuous since service, as he now contends. In assessing the Veteran's credibility, as a whole, these various discrepancies in the record further weigh against his current account. It is unclear why the Veteran has chosen to assert that he has experienced low back problems since his in-service slip and fall injury, other than for the obvious pecuniary interest inherent in his claim for service connection. However, for the reasons discussed above, the Board finds the lay evidence of record supporting a history of subsequent complaints and treatment for low back problems unrelated to rheumatoid/psoriatic arthritis are not credible given the lack of corroborative evidence in the service treatment records and the fact that, prior to his compensation claim, he consistently reported a history of low back problems dating to 1970. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). To the extent that there is documented evidence of treatment for low back problems in the late 1960s, the Board notes that such treatment was related to a post-service back injury and that there is no indication that he continued to experience problems following completion of therapy and treatment. Absent credible evidence of an in-service injury, a notation or diagnosis of a 'chronic' disability (such as arthritis) during service, and symptoms that have continued to the present day, there must be some competent evidence establishing that the Veteran's currently diagnosed degenerative disc and joint disease of the lumbar spine with dextroscoliosis had its onset during service or is otherwise medically related to such service. See 38 C.F.R. § 3.303(d). The record in this case contains a number of medical opinions regarding the etiology of the Veteran's current low back disability, to exclude rheumatoid/psoriatic arthritis. An April 2010 VA examination report reflects a history of low back pain and right hip pain beginning two years post-service with a diagnosis of rheumatoid arthritis in 1970. The examiner's assessment of the Veteran's current condition was degenerative joint and disc disease . The examiner opined, based upon a review of the claims file and an examination, that such disability is less likely due to service because there is no mention of any back injury in the service treatment records and no evidence of problems for two years post service. The examiner noted that a single fall is unlikely to result in the development of severe degenerative disc disease. As for the Veteran's post-service complaints, these likely represented initial manifestations of rheumatoid arthritis. An October 2011 VA examination report similarly found the Veteran's currently diagnosed degenerative disc and joint disease with lumbar dextroscoliosis to be unrelated to the in-service slip and fall injury. The October 2011 VA examination report notes that the record does not show any lasting chronic disability following the initial injury. Most recently, an October 2012 examination report notes that per scientific literature, signs of traumatic arthritis following a significant injury will appear on x-ray within three to four years of the injury. Given that x-rays taken seventeen years after the Veteran's separation from service (i.e., in 1981) continued to show normal pathology, it was the examiner's opinion that the Veteran's current scoliosis, degenerative disc and joint disease are less likely related to the fall on active duty. Regarding the Veteran's alleged post-service complaints and treatment, the October 2012 report notes that the Veteran worked as a laborer, forklift operator, and truck driver post service and that all of his complaints and symptoms were related to the aging process and rheumatoid/psoriatic arthritis. In summary, "the [V]eteran has no disease process regarding his back that can be connected to his 8 months of active duty." The Board acknowledges that in October 2008 the Veteran submitted a magazine article which states that "a fracture near a joint significantly increases your risk of developing arthritis as much as 15 or 20 years down the line." In this case, however, there is no indication of any fracture of the back, and the Veteran has never contended such an injury. Thus, the only medical opinions of record weigh against a finding that the Veteran's current low back disability, to exclude rheumatoid/psoriatic arthritis, is related to his military service, to include the 1964 slip and fall injury. As these opinions, especially the October 2012 opinion, were based upon a review of the entire record, to include service treatment records, post-service records, and lay evidence proffered by the Veteran and his relatives, and provided explanations for the conclusion reached, the Board finds them to be especially probative regarding the issue of etiology with respect to the Veteran's low back disability. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). In sum, there is no competent, probative evidence or opinion linking the Veteran's currently diagnosed lumbar degenerative disc and joint disease with dextroscoliosis to an injury or disease associated with service. As previously discussed, credible evidence indicates that the Veteran experienced an in-service injury to his back which resolved prior to separation, incurred a post-service injury in 1967 with subsequent treatment, and began having arthritic-type pains in multiple joints, including the low back, in the late 1960s which were diagnosed as rheumatoid/psoriatic arthritis. The first competent evidence of a chronic low back disability other than rheumatoid/psoriatic arthritis was not until April 1993, nearly thirty years post service. As for any direct assertions by the Veteran and his representative that there exists a medical relationship between his current low back disability and service, the Board acknowledges that lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet. App. at 435. However, as to the specific issue in this case - neurologic and orthopedic disability of the spine - such disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). For all the foregoing reasons, the Board finds that the claim of entitlement to service connection for residuals of a back injury to exclude rheumatoid/psoriatic arthritis must be denied. In reaching the conclusion to deny this appeal, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for residuals of a back injury to exclude rheumatoid/psoriatic arthritis is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs