Citation Nr: 1315857 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-16 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection a back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In June 2007, the Veteran withdrew his personal hearing request. In August 2010 and April 2012, the Board remanded the above issue for further development, to include obtaining additional records from VA and the Social Security Administration (SSA) as well as obtaining an addendum to the July 2011 VA back examination. Additional records were associated with the claims file, and the VA addendum opinion was obtained in June 2012. Accordingly, the Board finds that there has been substantial compliance with the directives of the April 2012 Remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, was also remanded by the Board in April 2012. However, this issue was subsequently granted in full by the RO in a March 2013 rating decision. Accordingly, this issue is no longer on appeal before the Board at this time. The issue of entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's back disability is not related to service and arthritis of the spine did not manifest itself to a compensable degree within one year of service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by military service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Here, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. The Board finds that a letter dated in May 2006 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from VA and the SSA. In addition, the Veteran was provided a VA examination July 2011, with an addendum dated in June 2012. The Board finds that the examinations are adequate because after comprehensive examinations of the claimant as well as after taking a detailed history from the claimant and/or after a review of the record on appeal the examiner provided opinions as to the likely etiologies of his back disorders. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran 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 claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a current back disability as a result of his period of active duty service. Specifically, he asserts that he initially injured his back after slipping on ice and falling flat on his back while running cable across a field. He indicates that he has had problems with his back ever since, especially when it is about to rain. Additionally, the Veteran indicated that a knee was placed in the center of his back while someone pulled back on his head from under his chin while he was being sexually assaulted in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disability, 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) medical 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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). As to a current disability, a review of the post-service record documents diagnoses of lumbar strain as well as degenerative spondylosis and diffuse idiopathic skeletal hyperostosis of the lower cervical spine. As to service incurrence under 38 C.F.R. § 3.303(a), the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of a back disability (i.e., pain) while on active duty, even when not documented in his medical records, because these symptoms come to him through his own senses. See Davidson, supra. A review of the Veteran's service treatment records reveals a December 1980 back injury for which medical assistance was received. Specifically, a treatment note indicated that the Veteran slipped on ice and fell flat on his back, after which time he complained of sharp pain in the middle and upper back which increased upon exertion. He did not hit his head during the fall or lose consciousness. Upon palpation, the spine and the muscles near the spine area were tender. Although the Veteran exhibited decreased range of motion, there was no numbness and no other abnormalities were observed. There was no fracture suspected, although there was spasm of the muscular mass and soreness of the spine processes. The Veteran was diagnosed as having muscle strain and prescribed pain medication and 72 hours of bed rest. Three days later, the Veteran returned for a follow-up evaluation and indicated that he was doing better with use of heating pads and muscle relaxers. His range of motion had improved. There was no more muscle spasm appreciated in the upper back. The Veteran was advised to start on an exercise program to rehabilitate his muscles. The service treatment records contain no further reference to back symptomatology. In October 1981, the Veteran indicated that he did not desire a separation examination, and a physician determined that a separation examination was not required following a review of the Veteran's records. While the Veteran, as a lay person, is competent to report on his symptoms of a back disability because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of a chronic spine disability because such an opinion requires medical expertise which he does not have. See Davidson, supra. Therefore, the Board finds more compelling the service treatment records, which suggest that the Veteran's December 1980 muscle strain was acute and transitory in nature and resolved by the time of separation, than the appellant's claims that he had problems with a back disability while on active duty and since that time. See Forshey, supra. Post-service treatment records do not mention back pain until May 2002. At that time, the Veteran went to VA to initiate primary care and described mid-back pain which he claimed had been intermittent since 1980 following an in-service motor vehicle accident. He further indicated that the mid-back pain was aggravated by driving for long distances, and alleviated by massage. The nurse practitioner diagnosed him as having chronic back pain in the thoracic area. In an August 2009 Wellness Physician Initial Evaluation, the Veteran again complained of chronic low back pain related to an in-service motor vehicle accident in 1980 which had been intermittent since that time. X-rays conducted in November 2002 revealed degenerative spondylosis and diffuse idiopathic skeletal hyperostosis of the lower cervical spine, but no radiographic evidence of acute fracture or subluxation. The Veteran was provided a VA spine examination in July 2011, at which time the examiner diagnosed him as having a "back condition." However, the examiner opined that the Veteran's current back disorders were not caused by or a result of the in-service slip-and-fall injury to the back. The examiner emphasized that the December 1980 back injury resulted in muscle spasms, as indicated by the progress notes contained in the service treatment records, and that the record indicated at least partial resolution of the back injury in the next few days following the initial incident. As such, it was unlikely that the December 1980 back injury resulted in permanent damage to the Veteran's back. Moreover, the examiner explained that arthritis is a degenerative disease of the bone and generally takes many years to develop to the point of disability. While arthritis may be accelerated by trauma, it is only accelerated by trauma to the bone/joint itself and does not stem from muscular injuries. In the Veteran's case, he suffered from an in-service muscle strain, and there was no evidence of injury to the bone or joints. As such, any current arthritic disability of the back was not related to service. In its April 2012 remand instructions, the Board directed that the VA examiner provide an updated addendum opinion based on new evidence associated with the claims file. Pursuant to these instructions, the examiner provided an addendum in June 2012. The examiner indicated that the Veteran's current diagnosis was lumbar strain. However, the examiner continued to opine that the Veteran's current disability was not at least as likely as not caused by his active duty service. The examiner explained that the in-service back injury sustained by the Veteran in December 1980 resulted in muscle spasms, as indicated by the progress notes of record, and that these notes also indicated at least partial resolution of the Veteran's back condition in the days following the initial incident. As such, it was unlikely that the December 1980 injury resulted in any permanent damage to his back. With respect to any diagnosed degenerative disease, the examiner again explained that arthritis was a degenerative disease of the bone, while the Veteran's December 1980 in-service injury involved only the muscle. As such, it was not at least as likely as not that any current degenerative changes of the back were the result of the Veteran's period of active service. The Board finds that the approximately two decade gap between the Veteran's discharge from active duty and the first clinical evidence of the claimed disorder weighs heavily against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with pain since service. See Davidson, supra. However, upon review of the claims file, the Board finds that the Veteran's assertions that he had his current back disability since service are not credible. In this regard, these lay claims are contrary to what is found in the service and post-service records, which show that following the initial in-service back injury in December 1980 the Veteran did not seek treatment for a back disability until 2002, despite having sought treatment for other maladies in the interim. The Board also finds that the opinion of the July 2011 VA examiner weighs heavily against the claims service connection. In these circumstances, the Board gives more credence and weight to the negative nexus opinion provided by the VA examiner as well as the negative VA treatment records and service treatment records, which do not show complaints, diagnoses, or treatment for the claimed disorder for approximately two decades following his separation from active duty, than any claims by the Veteran to the contrary. Therefore, entitlement to service connection for a back disability based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). The Board additionally notes that the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's back disability and an established injury, disease, or event of service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. As to the Veteran's assertions that his back disability was caused by his military service, the Board finds that diagnosing a back disability requires special medical training that the Veteran does not possess and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that his opinion that this disorder was caused by service is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for a back disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Accordingly, the Board finds that entitlement to service connection for a back disability must be denied based on service incurrence despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As to the presumptions found at 38 C.F.R. § 3.309(a), the Board notes that the record does not show the Veteran being diagnosed with arthritis of the spine in the year immediately following his separation from service in 1981. Accordingly, the Board finds that entitlement to service connection for a back disability must be denied on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs