Citation Nr: 1314876 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 12-01 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability, to include sciatic nerve involvement. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from July 1941 to December 1943. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In the Veteran's January 2012 substantive appeal, he requested a hearing the Board. He withdrew that request in a letter received at the RO in February 2013. Therefore, the Board will adjudicate the claim based on the evidence of record. See 38 C.F.R. § 20.704(e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran's current low back disability, to include sciatic nerve involvement, did not have onset during his active service, neither arthritis of his low back nor organic disease of the nervous system affecting his sciatic nerve manifested within one year of separation from active service, and his current low back disability, to include sciatic nerve involvement, was not caused by an event, injury, or disease during his active service. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include sciatic nerve involvement, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a), (b), (d), 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to notify was satisfied by way of a letter sent to the Veteran in March 2011. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records are of record and the RO assisted him in obtaining the only identified private treatment records. VA provided a medical examination in February 2012 and obtained a probative medical opinion. The examination report shows that the examiner considered the history of the Veteran's claimed disability, described the disability in sufficient detail, and provided an analysis to support his conclusion that there was no nexus between the Veteran's claimed disability and his active service. The examination and opinion are therefore adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran contends that he has a low back disability with sciatic nerve involvement as the result of lumbar puncture conducted for medical reasons during active service Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specific chronic diseases, including arthritis and organic diseases of the nervous system, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2011). Additionally, one way of establishing the nexus element for these specified chronic diseases is through evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997). The "noted" in service element requires only that the condition was noted at the time the veteran was in service but such noting need not be reflected in any written documentation contemporaneous to service. Id. In general, a claimant is competent to provide lay statements of observable symptoms of disability and continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The value of lay statements of symptoms and continuity of symptomatology, as with any evidence, depends in part on whether it is credible; the mere absence of corroborating contemporaneous medical evidence does not render the statements incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2008). The presumptive provisions are not intended to limit service connection for diseases first diagnosed post-service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records document that the Veteran was admitted for treatment in an Army Hospital in October 1941 with complaints of chronic headaches since childhood. A lumbar puncture was done on November 1, 1941 and there are laboratory results for spinal fluid analysis with the results dated November 4, 1941. Two weeks later, he was discharged from the hospital to duty. A personal history section of the hospital report lists that he had rheumatism in the right leg during childhood with infrequent attacks since then, the last attack occurring one year prior to the hospital admission. February 1943 notes document a complaint of rheumatic right leg pain. There is no mention of back symptoms or sciatic nerve symptoms in the service treatment records. An August 1943 physical examination report includes negative findings for all of his joints. As to his nervous system, it was noted that knee and ankle jerks were slightly exaggerated but equal, plantar reflexes were hyperactive, there were no pathological reflexes elicited, and there were no sensory disturbances, tics, tremors, muscular atrophy, or weakness. In May 1944 VA received a claim of entitlement to compensation or pension benefits for headaches. An RO subsequently denied that claim. In July 1993 the Veteran again sought service connection for headaches and the claim was not reopened. At that time, he provided an updated medical history that included his report that "around the year 1957" he was treated for a back injury at Hotel Dieu, New Orleans, Louisiana, was in traction for approximately ten days, and was told that he had a pinched nerve. He reported that he had suffered back pain off and on since then. This was a general report of medical history as shown by his report of history of prostate cancer. He did not contend that the back condition was related to his active service and did not seek service-connection for a back condition. VA received the Veteran's only claim of entitlement to service connection for a low back condition in February 2011. In a March 2011 statement, he explained that he underwent two spinal punctures during service that were not successful. He stated that he was eventually discharged from military service and noted that "nothing was said about the two spinal lumbar punctures made Nov. 1, 1941 and Nov. 4, 1941 probably damaged the sciatic nerve, causing the back pains and leg pains, for the rest of my life." In that March 2011 statement, he reported that he had severe backache in the years 1948 to 1950 and was hospitalized for two to three weeks at Hotel Dieu Hospital in New Orleans, Louisiana. He reported that this hospital was demolished many years ago. He reported that his now deceased physician, Dr. "M.G.," had a neurosurgeon and orthopedic surgeon examine him and no cause was found for his back and leg pains. He then stated as follows: It was some time later in life, that we had an idea that the sciatic nerve was probably injured by punctures performed Nov. 1 and Nov. 4 at McDill Field Hospital. From the time spent in military hospitals, during my time in military service, the pains in my back, legs, and headaches were caused by time spent in military. VA afforded the Veteran an examination and obtained an expert medical opinion in February 2012. The examiner diagnosed degenerative disc disease and degenerative joint disease of the thoracolumbar spine and identified those conditions as typical for a ninety-three year old person. The examiner provided an accurate summary of the history as explained above. He provided an opinion that it is less likely than not that the Veteran's claimed disability is related to his active service. He also provided the following rationale to support that opinion (corrected upper-lower case]: "He had no prob[lem] post L[umber] puncture and did have a significant event yrs later that was so severe as to need hospitalization and brace and his x-rays and exam indicate better than the average ninety three yr old." The Board finds that the most probative evidence of record as to the nexus element is the February 2012 examination report. The examiner considered the relevant history of the Veteran's low back disability and provided a compelling rationale for his conclusion. That rationale is consistent with the service treatment records and the other evidence of record. It is noted that the examiner had the claims file before him had the evidence regarding rheumatism of the right leg and the reflex findings before him. The Board thus finds his opinion to have taken into consideration that evidence. Now the Board turns to the Veteran's statements. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). There are inconsistencies in the Veteran's historical reports and those inconsistencies tend to show that the Veteran's report of treatment in 1948 to 1950 for back symptoms is not credible. The Court of Appeals for Veterans Claims (Veterans Court) and the Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance in analyzing the credibility of evidence. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc ".); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). His February 2013 report that he was treated for back problems at Hotel Dieu Hospital in 1948 to 1950 is inconsistent with his September 1993 report of hospitalization at Hotel Dieu Hospital in 1957. The earlier report was part of a general medical history submitted in the context of a claim for service connection for a different disability, headaches, and in that report he attributed his symptoms to an injury without any mention of service. There is no reason to find that the earlier report was inaccurate. The later report was made in the context of seeking service connection for a back disability and therefore there is a reason for his report of symptoms closer to service and his omission of mention of the injury; i.e., those differences tend to add support his claim of entitlement to service connection. The relative context of the reports and when he made the respective reports lead the Board to the conclusion that his report of treatment in 1948 to 1950 with no known cause of the symptoms is not credible. The Board therefore finds that the most probative evidence of record shows that his earliest back symptoms - to include symptoms involving his sciatic nerve, occurred in approximately 1957 following an injury, as reported by the Veteran in 1993. The evidence is therefore against a finding that he had continuity of symptomatology of back or sciatic nerve problems since service. The Veteran's statement that "we had an idea that the sciatic nerve was probably injured by punctures" does not state that the "we" includes a medical professional. The Board reasonable reads his "later in life" preface to the statement and the fact that he did not identify a medical professional in the statement to indicate that there was no expert medical evidence to this effect. There is no evidence that the Veteran has expertise in medical matters and he has not alleged any expertise. His opinion is therefore that of a non-expert, or layperson. Under the facts of this case, the Board finds that his lay opinion evidence of a nexus between the lumbar puncture in service and his later back and sciatic nerve symptoms is not competent evidence. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report only that for which they have personal knowledge that comes to the witness through the use of his or her own five senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based only on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Whether a medically provided lumbar puncture in 1941 caused his current back symptoms, particularly in light of the injury in 1957, is not within the realm of knowledge of a layperson. It is not a conclusion that can be reached by observation by ones' senses because it would be impossible to determine by personal observation if the lumbar puncture as opposed to the later events caused the symptoms first manifesting in 1957. Nor is it a simple question such as whether someone had a broken leg. For these reasons, the Board finds that the Veteran's opinion in this regard is not competent evidence. As his symptoms first occurred in 1957, the Board finds that neither arthritis nor any organic disease of the sciatic nerve or spine manifested during an applicable presumptive period. For the reasons stated above, the Board concludes that the preponderance of evidence is against a finding that the Veteran's disability of the lumbar spine, including sciatic nerve involvement had onset during or was caused by his active (CONTINUED ON NEXT PAGE) service. His appeal must therefore be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability, to include sciatic nerve involvement, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs