Citation Nr: 1314788 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-05 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to July 1954, and July 1955 to July 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In May 2012 and January 2013, the Board remanded this matter for further development and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this remand. 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). FINDINGS OF FACT 1. Although scoliosis pre-existed service, it has since resolved and there is no evidence of any current scoliosis. 2. A chronic back disability was not shown in service, arthritis of the back was not shown within the first post-service year, and there is no etiological relationship between a current back disability and military service. CONCLUSIONS OF LAW 1. The issue of whether the Veteran's pre-existing scoliosis was aggravated by service is moot. 38 U.S.C.A. §§ 1110 , 1111, 1131 (West 2002); 38 C.F.R. § 3.304 (2012); VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 2. A back disability was not incurred in or aggravated by military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1132, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter on two occasions. In May 2012, the Board specifically instructed the RO/Appeals Management Center (AMC) to obtain the Veteran's outstanding treatment records and Security Administration (SSA) records, provide the Veteran with an examination to determine the etiology of the back disability, and to readjudicate the claim. Subsequently, the AMC attempted to obtain outstanding records identified by the Veteran but it was determined that those records were not available. Additionally, VA determined that SSA records were unable for review. The Veteran was also afforded an examination in June 2012 and his claim was readjudicated in a December 2012 Supplemental Statement of the Case (SSOC). In the January 2013 remand, the Board, having determined that the June 2012 VA examination report was inadequate, remanded for an additional opinion and to have the claim readjudicated. Thereafter, an opinion was rendered in accordance with the Board's specific instructions in February 2013 and the claim was readjudicated in a March 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in January 2007, prior to the August 2008 rating decision, and in March 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. In July 2007, the National Personnel Records Center (NPRC) indicated that the Veteran's service records had been destroyed in a fire. While it was able to reconstruct the Veteran's Army service records, there were no records pertaining to his Air Force service. In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). Additionally, VA attempted to obtain private records from Dr. Smith as identified by the Veteran. Following written communication in January 2007 from Dr. Smith's office that the records had been transferred to Physicians Quick Care, the RO attempted to obtain the Veteran's records. However, in September 2012, Physicians Quick Care indicated that it did not have the Veteran's records. Furthermore, in a December 2012 memorandum, VA indicated that the Veteran's SSA records were unavailable and all efforts to obtain the information had been exhausted and further attempts would be futile. Therefore, the Board finds that additional efforts to obtain any of these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining those records. Also, the Veteran was provided VA examinations for his claim. Although in the May 2012 remand the Board determined that the June 2012 VA examination report was inadequate in that the examiner failed to take into account the Veteran's lay statements, in February 2013 the same examiner rendered another opinion which complied with the Board's remand directives. Review of these examination reports reflect that cumulatively the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran presented testimony in support of his claim before the undersigned. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the April 2012 hearing, the undersigned complied with the requirements set forth in Bryant. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that his current back disability is related to service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If arthritis becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption does not apply in the present case as arthritis did not manifest until many years after discharge, as discussed below. The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now states that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. As noted above, the Veteran was initially afforded an examination in June 2012. Upon review of the claims folder and evaluation of the Veteran, the examiner noted a diagnosis of degenerative disc disease of the lumbosacral spine. In the examination report, the examiner recounted the Veteran's history of injuring his lower back during service in 1953. The examiner opined that it was less likely than not that the Veteran's current spine disorder was incurred in or caused by the in-service injury. In rendering this opinion, the examiner cited to the Veteran's examination report at service entry in 1953 showing slight scoliosis, his discharge examination report in 1954 revealing no evidence of a spine disorder, and his examination report from his second period of service in 1959 showing no evidence of a spine disorder. The examiner also pointed to the Veteran's lack of continuation of back treatment after service, work in construction for 30 years, and his statements as to his back bothering him in the 1980s due to his heavy duty job and diagnosis of lumbar prolapsed disc. He added that the Veteran's current spine disorder was more likely due to the previous heavy duty job and generalized degeneration from age. The examiner also observed that the Veteran was diagnosed with scoliosis at age 21, and there was no documented acute or chronic lower back pain noted in service. He determined that scoliosis was a development process which resolved, and that the slight scoliosis had no impact on the current diagnosis as the Veteran did not have any current clinical evidence of scoliosis. As noted in the January 2013 remand, the Board found the opinion ordered by the July 2012 VA examiner insufficient as the examiner did not taken into account the Veteran's assertions. The Board remanded the matter once again for another opinion and instructed the examiner to assume that the Veteran was a reliable historian with regards to his statements as to in-service injuries. Pursuant to the Board's remand, the June 2012 VA examiner rendered another opinion in February 2013. Upon review of the claims folder, the examiner indicated that it was less likely than not that the back disability was incurred in or caused by the in-service injury. The examiner also opined that the Veteran's disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner based his opinions on the Veteran's statement that he injured his lower back during service when he fell down steps, the fact that he did not visit medics or doctors, the service entrance examination report in January 1953 showing slight scoliosis, being subsequently accepted into the United States Marines, and no documented back condition during his first period of service despite the diagnosis of scoliosis at entry. The examiner also cited to the lack of evidence of back pain or back disability during the Veteran's second period of service, and also lack of documentation of continuation of back care after release from service in 1959. Taking into account the Veteran's statement as to service injury, the examiner indicated that the injury was acute, self-limited, and resolved. The examiner stated that the Veteran worked in construction for 30 years and his back started to bother him in the 1980s due to a heavy duty job and he was diagnosed with lumbar prolapsed disc, and he subsequently had lumbar laminectomy in 1998. He further opined that the Veteran's degenerative disc disease of the lumbosacral spine was more likely due to his previous heavy duty occupation and partly due to generalized degeneration due to age. As to scoliosis, the examiner observed that the Veteran was diagnosed with mild scoliosis in 1953 when he was 21 years old and there was no lower back pain or disability in service. The examiner, referring to his professional credentials, opined that scoliosis was a physiological development process and usually resolved in later part of life. He indicated that his previous evaluation of the Veteran showed no scoliosis, and that reports from an August 2011 X-ray and September 2011 MRI were both negative for evidence of scoliosis. In reviewing the medical literature, the examiner stated that scoliosis was a lateral curvature of the spine that was usually accompanied by a rotation, and was not a diagnosis but a description of a structural alteration occurring in a variety of conditions. He added that in most cases the cause of scoliosis was unknown (i.e. idiopathic scoliosis), and usually developed mostly in children and teens and appeared to be related to several favors, including genetics. Based on his review of the Veteran's records, the examiner found that the Veteran had idiopathic scoliosis and it resolved with age. In rendering his opinion, the examiner also acknowledged the Veteran's testimony at the April 2012 hearing that he had continuation of back problems during/after discharge from service. As an initial matter, the Board notes that scoliosis was noted on the Veteran's induction examination report. Accordingly, the presumption of soundness does not apply to the back and the Board finds scoliosis pre-existed service entry. See supra 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Since the evidence of record reflects that scoliosis pre-existed the Veteran's service, normally the question of aggravation must be addressed next. However, in this case, the question of aggravation is moot because there is no evidence that the Veteran currently has scoliosis. The evidence is clear that any scoliosis that may have been noted at service entry resolved, and multiple diagnostic studies have demonstrated that there is no current scoliosis. Therefore, the Board's analysis below will focus on whether service connection for a back disability, other than scoliosis, is warranted on a direct basis. As to direct service connection, the Board notes that Hickson elements (1) and (2) are met. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. Additionally, although service treatment records are negative for any complaints or findings of back disability, as noted above many of the Veteran's service records were lost in a fire. In any case, the Veteran has contended that he injured his back in service on two occasions (falling/being pushed down stairs in 1953 and while on the rifle range). In this respect, the Board notes that the Veteran is competent to give evidence about what he experienced; and back injury and pain are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, Hickson elements (2) and (2) are therefore satisfied. With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current disorder and service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, as to the issue of the etiology of the Veteran's back disability, the Board finds that the February 2013 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of both the Veteran's reported history and the Board's remand directives. Significantly, the VA examiner's findings that the injury in service was self-limiting and any current disorder is related to post-service occupation and age are consistent with the evidence of record, which is negative for any documentation related to the back until the late 1990s. Accordingly, the Board concludes that the VA opinion is found to carry significantly more weight. In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board and the VA examiner have taken into account the Veteran's reported history as to his in-service accident and continuation of back problems in and since active service. The Board acknowledges that the Veteran is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of a disorder during service or a medical opinion regarding the etiology of his back disorder. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the VA examiner's opinion as it was rendered after an extensive evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for a back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs