Citation Nr: 1314324 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-15 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbosacral disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from July 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran's lay report of history of back strain prior to induction does not constitute a notation that a back disorder pre-existed his service; clinical evaluation of the back was normal at entry into service; and there is no clear and unmistakable evidence of a pre-existing back disorder. 2. The Veteran did not seek treatment for a back injury or complaint of back pain in service. 3. During the 16 years preceding his application for Veterans' benefits, the Veteran worked as a heavy equipment operator for a trucking company. 4. The Veteran's contention that a back disorder was incurred in service, resulting in chronic back pain since his service separation in 1971, and his contention that pre-service back strain was aggravated in service, are contradicted by the evidence of record. CONCLUSION OF LAW A lumbar disorder was not incurred or aggravated in service, nor may service connection for a lumbar disorder be presumed. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duties to notify him of the evidence required to substantiate his claim and assist him in the development of the claim. After reviewing the record, the Board finds that VA has met each of its duties to the Veteran. Shortly after the RO received the Veteran's claim in October 2009, the RO issued an October 2009 letter which advised the Veteran of the criteria for service connection, notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA informed him of the criteria for rating service-connected disabilities and for assigning effective dates, should service connection be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not been prejudiced by any deficiency in content or timing of notice to the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007). As set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain service treatment records and relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. In this case, VA obtained the Veteran's service treatment records, obtained records from the Social Security Administration (SSA) related to the Veteran's claim for SSA disability benefits, and private records from each identified provider. The Veteran also submitted records and statements. He indicated treatment from Dr. Peoples on a VA Form 21-4142, but did not provide the address for the clinic. The RO notified the Veteran on the November 2012 SSOC that an internet search was conducted but they were unable to locate a Dr. Peoples and that no further development would be conducted in this regard. The Veteran has not identified any other clinical or nonclinical record which might be relevant to his case. VA examination was conducted. The VA examination discussed the service treatment records, the history related by the Veteran, the clinical records, and the findings on physical examination. The VA examination report is adequate for adjudication purposes. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim. There is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Factual Background During his January 1969 service entrance examination, no diagnosis of a back disorder was noted on physical examination. However, the Veteran reported, to the provider who completed the medical history, that he had "back strain" at age 14. The provider noted that there were "no seq[uelae]. It is undisputed that the service treatment records reflect no complaints of back pain in service. The Veteran contends that he was unable to seek medical evaluation for back pain during service, even though he had back pain, because his supervisor would not allow him time to report to sick call. No back disorder was noted on physical examination for separation in February 1971; no medical history is associated with that examination. Clinical records associated with the claims file reflect that the Veteran sought evaluation for back pain in July 2006. The Veteran initially reported a one-year history of back pain, with exacerbation of pain for the past two weeks, but also reported that he had been told 15 years earlier that he had degenerative disc disease at L5-S1. The Veteran reported, in other presurgical evaluations, that back pain started in 1981. The Veteran underwent a lumbar discectomy in September 2006, and a secondary lumbar surgery in 2007. A September 2009 private opinion was submitted from a physician's assistant, which noted that the Veteran had a chronic back condition that had left him permanently disabled. The Veteran stated that the condition started in the military; thus the physician's assistant determined that it was at least as likely as not that his condition was service-connected. At his April 2012 VA examination, the Veteran reported that he incurred a back injury at age 14, which resulted in degenerative disease of the lumbar spine. The Veteran also reported that he strained his back in service lifting parts in his capacity as a parts clerk for the motor pool, and had back pain thereafter. The examiner noted that the service treatment records reflected a report from the Veteran at induction that he had incurred back strain at age 14. The Veteran denied current sequelae at the time of service induction, and no abnormality was found on physical examination. The Veteran reported that he did not seek treatment for a back disorder or complaints of back pain in service or for several years after service, until after incurrence of post-service injury. The examiner discussed the Veteran's reports of hoister to his treating physicians, including to the neurologic specialists who performed lumbar disc surgery and follow-up surgery in 2006 and 2007. The examiner noted that the history he reported to those providers, that he had back pain beginning in 1981, was inconsistent with the history reported at VA examination. The VA examiner concluded that the evidence "strongly" showed that, if the Veteran incurred back injury or pain in service, it was of a minor nature, and did not result in a chronic disorder or aggravation of any pre-existing back pain. The examiner concluded that it was less than likely that any current back disorder was incurred or aggravated in service. Applicable Law and Regulations Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Arthritis is among the diseases defined as chronic for VA purposes. 38 U.S.C.A. § 1101. Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303 provides two ways to establish service connection. Service connection under § 3.303(a) is satisfied when the three-element test is met. In other words, the evidence must establish that: (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 (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. The second way to establish service connection is set forth in § 3.303(b). The Federal Circuit found in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. 38 C.F.R. § 3.303(b). A veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. "Aggravation" is defined, for purposes of Veterans' benefits, as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. See Davis v Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Analysis In his November 2009 statement, the Veteran contended that his first back problems started when he was in service. He stated that he hurt his back when handling parts, but was not allowed time to seek medical evaluation. In a December 2009 statement, the Veteran stated he had no memory of a back strain at age 14, but he did recall working in pain while in service because his supervisor would not allow him time to go to sick call. In a January 2013 statement, the Veteran indicated that he should not have been drafted, since he had a back injury at age 14, and contended that, if he had a pre-existing injury prior to service, the pre-existing injury was aggravated during his service. The Board will first address the Veteran's contention that a back disorder was incurred in service. The Board notes that arthritis of the back is a disorder which is defined as "chronic" for VA purposes, so VA must consider the Veteran's evidence as to chronicity in and following service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The only favorable medical opinion of record is from the physician's assistant in September 2009. The probative value of this opinion is not high, however, as the physician's assistant did not provide any rationale for the opinion that it was at least as likely as not that the Veteran's back condition was service-connected. The physician's assistant also did not appear to be fully-informed, as he did not consider the fact that there was an absence of complaints of back pain in service or for many years after service until the Veteran had an injury on the job in 1977. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993). An examiner's reliance on a claimant's recitation of his medical history is not an inaccurate factual premise if that recitation is an accurate portrayal of the patient's medical history. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). It appears that the physician's assistant in September 2009 based his opinion solely on the Veteran's reported history, which is problematic in this case, as the Veteran did not accurately portray his entire medical history. The only other evidence favorable to the Veteran's claim of incurrence of a back disorder in service is the Veteran's own lay evidence. The Veteran acknowledges that there was no medical evaluation of back pain while he was in service, or in the year following his 1971 service discharge, or prior to a 1977 incurrence of an injury while at work. The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the lack of reported symptomatology in service weighs against the claim for service connection for a back disorder, it does not end the inquiry. As noted above, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The VA examiner who conducted an April 2012 VA examination concluded that the Veteran did not incur a chronic back disorder in service or as a result of service or prior to intercurrent post-service injuries beginning in 1977. This opinion is highly unfavorable to the Veteran's claim. The private clinical records reflect that the Veteran provided a history of back pain beginning in 1981 or later, and there are no records which state that the Veteran reported that he had back pain in service or within one year thereafter. These records are unfavorable to the Veteran's claim. The Board is obligated to determine the competence, credibility and probative value of the Veteran's lay statements. Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran, as a lay individual, is competent to describe his experiences, so he is competent to state that he had back pain in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (stating that "competent lay evidence can be sufficient in and of itself" to obtain disability benefits); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran's statements that he had back pain in service and chronically following service are competent. The Board must next weigh the credibility and probative value of the Veteran's statements. Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran has stated that he was prevented by his supervisor from seeking medical evaluation of his back in service, even though he had back pain. However, the service treatment records show treatment of other disorders in service. Also, the Veteran has not provided any explanation for failure to seek evaluation of back pain following service. Thus, his statements are inconsistent. The Veteran has indicated that he sought post-service medical evaluation in 1977, when he sustained an injury at work. He has not indicated that he told any of the private providers who treated him in 1977, or later, that he began to have back pain in service or prior to service. The Veteran told the medical providers who treated him in 2006 and 2007 that back pain began in 1981, or that he had a history of back pain for the past 20 years. See June 2006 letter from Neurosurgical Associates of Texarkana to RDR, MD; July 2006 letter from IMF, MD to RDR, MD. The Veteran's statements for purposes of treatment are inconsistent with his current statements that he had back pain beginning prior to or during his service, which ended more than 35 years prior to his 2006 and 2007 treatment. The Veteran's statements for purposes of treatment are presumed to have more credibility and greater probative weight than his statements for purposes of this claim. The Veteran's statements for purposes of treatment are inconsistent with the Veteran's report to the VA examiner that he had back pain in service and thereafter. The SSA records clearly establish that the Veteran worked as a heavy equipment operator for the 16 years prior to his 2007 claim for SSA disability benefits. The Board finds that the Veteran's employment as a heavy equipment operator from the 1990s to 2006 is inconsistent with his statements for VA claims purposes that he had back pain beginning prior to his service separation in 1971. Finally, the Board notes that more than 40 years have elapsed since the Veteran's service induction or separation. The Board finds that his current allegations are less probative than the records more proximate to his service and separation. Those records include no notation that the Veteran reported back pain in service or soon thereafter. The Board finds that the Veteran's statements as to back pain beginning in service and continuing chronically thereafter are inconsistent with the objective evidence of record, and are of little credibility or probative value. The Board finds that chronicity of back symptoms in service and thereafter is not adequately supported in this case. The Veteran has not established that he incurred back pain or a chronic back disorder in service or within an applicable presumptive period thereafter. The Veteran also contends, alternatively, that a back strain he incurred prior to service was aggravated in service and remained aggravated chronically thereafter. Again, the only evidence favorable to the Veteran's claim of incurrence or aggravation of a back disorder in service is the Veteran's own lay evidence. In this case, the Veteran has stated that he was prevented by his supervisor from seeking medical evaluation of his back in service, even though he had back pain. However, as noted above, the Veteran has not provided any explanation for failure to seek evaluation of back pain following service. Thus, his statements are inconsistent with a finding that back pain manifested prior to service increased in service and remained chronic thereafter. The Veteran's own statements that he did not undergo medical evaluation of back pain after service until he incurred intercurrent injury several years after service demonstrate that there was no permanent increase in back pain that continued after service. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Veteran did not advise private providers whose clinical records are associated with the claims files that he first injured his back prior to service or that back pain increased during service. The private treatment records are inconsistent with the Veteran's statements that a back disorder was permanently aggravated during service. There is no record that the Veteran's back pain affected his employment after service until after he sustained intercurrent injury. Such a lengthy time frame without any clinical evidence to support the assertion of a continuity of symptomatology does not provide support for the Veteran's contentions that he experienced continuous back pain after service. Rather, this evidence is unfavorable to the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition). A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. The presumption of soundness attaches where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted"). See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). According to 38 C.F.R. § 3.304(b)(1), the term "noted" denotes only conditions that are recorded in physical examination reports. See also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (indicating the only requirement for this presumption of soundness to apply is that the military entrance examination have been free and clear of any relevant diseases or disabilities). The existence of a condition prior to service reported by the Veteran as medical history does not constitute a "notation" of such condition, but will be considered together with all other material evidence in determining the question of when a disease or disability began. 38 C.F.R. § 3.304(b)(1). The entrance examination showed a normal clinical evaluation of the spine with no defect of the spine noted. Moreover, in this case, by regulation, the history of "back strain at age 14" provided by the Veteran at induction does not constitute a notation of such condition. If it does not, then the Veteran's contention that degenerative joint disease diagnosed prior to service was aggravated during service must be considered under the presumption of soundness in 38 U.S.C.A. § 1111 rather than under the presumption of aggravation in 38 U.S.C.A. § 1153. As the Court of Appeals for Veterans Claims recently explained, the provisions of 38 U.S.C.A. § 1111 are more advantageous to a claimant than the provisions of 38 U.S.C.A. § 1153. Horn v. Shinseki, 25 Vet. App. 231 (2012). The examiner who conducted the April 2012 VA examination determined, after review of all the evidence, that the Veteran did not have a back disorder at the time of service induction, and determined that there was no aggravation of a back disorder in service. The examiner stated that this conclusion was based on the report of the Veteran's induction examination and history, the Veteran's history provided during the 2012 VA examination, the history provided at the VA examination, and the reports of private treatment associated with the record. The Board finds that, considering all evidence "together," including the Veteran's lay statements, as directed by 38 C.F.R. § 3.304(b)(1), the evidence as a whole establishes that the Veteran did not have a pre-existing back disorder at the time of his entry into service, and that, if the Veteran had intermittent back pain prior to service, any disorder underlying such manifestations was not permanently aggravated in service. The Court, in Horn, explained that, where a disorder was not noted upon entry, the presumption of soundness may be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. 25 Vet. App. at 234. The Court further explained that the burden remains on VA to rebut both prongs of the presumption of soundness. Horn dealt with analysis where, even though a disorder was not noted on entry, the clear and unmistakable evidence established that the disorder did exist prior to service. However, in this case there is no evidence that a back disorder existed prior to the Veteran's service other than a lay statement by the Veteran at the time of induction examination. The Board finds that the Veteran's lay statement does not constitute clear and unmistakable evidence that a back disorder pre-existed the Veteran's service. The Board also finds that there is no evidence that a back disorder increased in severity during the Veteran's service. As explained above, the only evidence favorable to such a finding that the Veteran manifested back pain in service are the Veteran's own statements, and those statements are of minimal credibility and low probative value. The Veteran's own statements that he manifested back pain chronically after service are the only evidence of record favorable to a finding that back pain incurred in service persisted after service separation, and the Veteran's own statements that he did not have medical evaluation of back pain after service until he incurred intercurrent injury are inconsistent with his contention that there was a permanent increase in back pain that continued after service. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The record lacks credible and probative evidence that a back disorder increased in severity in service or that such increase, if present, persisted after service; the objective evidence of record establishes that there was no aggravation of a pre-existing back disorder during or as a result of the Veteran's service. The Board has also considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b). In sum, the competent and credible evidence is overwhelmingly against a finding that the Veteran incurred a back disorder during or as a result of service, or had a pre-existing back disorder which was permanently aggravated in service, or manifested a chronic back disorder within an applicable presumptive period. The claim must be denied. ORDER The appeal for service connection for a back disorder is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs