Citation Nr: 1316915 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-07 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a lower back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from June 1981 to January 1987. This case came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In May 2009 the Veteran provided testimony at a hearing before a Decision Review Officer. In September 2009, the Veteran presented testimony at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of each hearing has been associated with the claims file. The Board remanded the case for additional development in December 2009; the case has now been returned to the Board for further appellate action. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims file. FINDING OF FACT A chronic lower back disability was not present until more than one year after the Veteran's discharge from service, and no current lower back disability is related to service. CONCLUSION OF LAW A lower back disability was not incurred in or aggravated by active duty, and the incurrence or aggravation of arthritis of the lower back during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is required to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in February 2008, prior to the initial adjudication of the claim. The record also reflects that VA and private medical records have been associated with the claims file, the Veteran was afforded hearings before the RO and the Board. The Board does note that only a few pages from the Veteran's service treatment records have been included in the claims file. All indicated development to obtain the outstanding records has been completed and it is clear that further efforts to obtain the records would be futile. In cases where a veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist a veteran in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). No other documents in addition to the records currently in evidence were found by the RO or the Veteran. The Board must point out, however, that it does not read into O'Hare the presumption that the missing medical records would, if they still existed, necessarily support the Veteran's claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to a veteran. Russo v. Brown, 9 Vet. App. 46 (1996). While it is unfortunate that almost all of the Veteran's service medical records are unavailable, the appeal must be decided on the evidence of record. The record also reflects that the Veteran was provided an appropriate VA examination in March 2010. In this regard, the Board notes that the examination report reflects that the examiner reviewed the Veteran's pertinent history, examined the Veteran and provided an opinion addressing the etiology of the Veteran's back disability. The examiner properly supported the opinion. A remand from the Board or from the Court confers upon a veteran the right to substantial compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the December 2009 Board remand, VA medical records were added to the claims file and the Veteran was afforded a VA examination in March 2010. Therefore, substantial compliance has been achieved. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The record reflects that the Veteran served as an air cargo specialist. The Veteran maintains that he is entitled to service connection for a lumbar spine disorder, including the residuals of a herniated disc at L4-5. He avers that he initially injured his low back in 1983, in connection with his service duties as an air cargo specialist and that he received treatment and a light duty profile at the time of the injury. He further avers that he periodically sought treatment for low back pain in service, shortly after service and continuing to the present. The Veteran provided testimony to that effect during his May 2009 personal hearing at the RO and at his September 2009 Board hearing. At each hearing, he asserted that his duty as an air cargo specialist included extensive, heavy lifting. He also testified that he was treated for lower back pain during service and that he had been prescribed anti-inflammatory and pain medications. He furthermore indicated that his back problems were ongoing during service and continued after his period of service, but that he had endured such back problems because he needed to work physically demanding jobs. Review of the Veteran's service treatment records reveals that no recurrent back pain was noted on his April 1981 service entrance report of medical history. On his January 1987 report of medical history, the Veteran indicated that he had experienced recurrent low back pain. The report includes a doctor's note to the effect that the Veteran had had low back pain since 1983, that he had been medically treated and that he had no complications and no sequelae (NCNS). Post-service, the Veteran was seen by private health care providers in December 2002. A noted dated December 3, 2002, indicates that the Veteran presented with low back pain; he was noted to have no history of motor vehicle accidents or recent injuries. Magnetic resonance imaging (MRI) was accomplished on December 13th and revealed the presence of "mild disc bulges" at L4-5 and L5-S1. The Veteran also had mild facet hypertrophy at L5-S1. A December 18, 2002, note indicates that the Veteran had a Workers Compensation claim for his back. The Veteran was referred for physical therapy and the initial evaluation report is dated December 30, 2002. The physical therapist wrote that the Veteran did not have a history of low back pain and that the Veteran stated that the pain was insidious in onset. The physical therapist noted that the Veteran had been at work approximately five weeks before and had noticed a gradual onset of low back pain. In February 2003, the Veteran was examined by private neurosurgeons. A February 5, 2003, note states under history of present illness that the Veteran had started having back and left leg pain on December 2, 2002. The Veteran underwent surgery for his back condition in March 2003 and April 2003. VA medical treatment records dated from 2003 to 2010 indicate that the Veteran sought treatment for his lumbar spine problems. A March 2003 consultation request for pain management includes notations that the provisional diagnosis was low back pain and that the condition had been present for six weeks to six months. An October 2007 orthopedic consultation note indicates that the Veteran had separated his right shoulder seven years before in an all terrain vehicle (ATV) accident. An MRI of the lumbar spine was accomplished that same month and revealed the presence of a surgical fusion at L4-5 and multilevel degenerative changes with mild to moderate central stenosis and mild bilateral foraminal stenosis at L3-4. At L5-S1, there were bilateral facet arthrosis and mild left foraminal stenosis. In February 2010, the Veteran sought a work excuse after missing work due to back pain after shoveling snow. The Veteran was afforded a VA medical examination by an orthopedist in March 2010; the examining physician reviewed the Veteran's claims file. The examiner noted that the Veteran said that he hurt his back in 1983 while lifting and loading cargo with an acute onset of back pain. The Veteran reported treatment with anti-inflammatory medications and heat, as well as light duty. The examiner noted that the Veteran had some problems with low back pain thereafter, but he was able to fulfill his strenuous service duties. The examiner also noted the Veteran's report of recurrent low back pain in January 1987, as well as the doctor's note of NCNS which the examiner stated meant that the January 1987 examiner found no current effects of any previous back condition. The examining orthopedist further noted that the Veteran had had an acute onset of severe back pain while he was at work in 2002. After examining the Veteran, the orthopedist rendered a diagnosis of L4-5 herniated disc with surgical fusion and degenerative disc disease (DDD) at the L3-4 level. The VA examiner concluded that the Veteran's 1983 injury was a lumbar strain that was treated with conservative measures. The examiner noted that the Veteran was able to serve for the next few years without problems, although he may have had some flares which is common with a lumbar strain. The examiner stated that the January 1987 finding of NCNS meant that the Veteran's lumbar strain was resolved and that the Veteran had no symptoms at the time of his discharge from service. The orthopedist opined that the Veteran's herniated disc was less likely than not related to his reported in-service injury because his lumbar spine was found to be normal in January 1987, with no complications or sequelae from the reported prior low back pain. The physician stated that a plausible etiology for the Veteran's current diagnosis included his post-service occupational history, a post-service accident and the Veteran's nicotine/tobacco abuse which the examiner described as notorious for back pain. The examiner stated that it was clear that the L3-4 DDD was due to the L4-5 fusion. In addition, the orthopedist found the 20-year gap between the 1983 injury and the 2003 surgery to be significant in that if the 1983 injury had been responsible for producing the disc herniation, the Veteran would have needed to have the back surgery nearer to his separation from service and not 20 years later. The VA examiner therefore found the current lumbar spine pathology not to be caused by the Veteran's service. The foregoing evidence shows that the Veteran experienced recurrent back pain in service and that there were no complications sequelae present at the time of his service discharge. In addition, there is no evidence, apart from the Veteran's statements, suggesting that he manifested arthritis to any degree within one year of his discharge from service. The first radiographic evidence of lumbar spine DDD is found in the private radiology report of December 2002, which described the presence of mild disc bulges at L4-S1. The Veteran has presented no corroborating evidence to establish a continuity of symptomatology of a low back disorder since service. The earliest medical evidence demonstrating any diagnosed back disorder is found in the December 2002 private medical records relating to a Workers Compensation claim, which is approximately 16 years after the Veteran was discharged from active service. The Veteran himself has been inconsistent in describing the onset of his back problem; in December 2002, he said he had had an insidious onset of back pain five weeks before and then, beginning with his February 2007 claim for benefits, he has described having experienced back pain since service. The Court has indicated that the absence of any medical records of a diagnosis or treatment for years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that a veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (which stipulates that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). While the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In addition, there is no clinical evidence to support the conclusion that any chronic disorder resulted from the 1983 low back pain complaints. While the Veteran has contended that he experienced low back pain in service and after service, pain alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the Veteran did complain of low back pain in 1983, the condition was acute and transitory as the report created in connection with his service separation in January 1987 states that there were no complications or sequelae from the 1983 incident. Thereafter, the Veteran was seen in private facilities from December 2002 onward and in VA facilities from March 2003 onward. At the end of 2002 and the beginning of 2003, the Veteran related his onset of pain to be recent and connected to his work. Furthermore, the Veteran's December 2002 findings on MRI examination showed only mild disc bulges in the lower lumbar spine. In a March 2010 VA medical opinion, those findings were found by a VA orthopedist surgeon to be clinically congruent with the events that were closer to the 2003, such as the 2002 ATV accident and not to be etiologically related to the Veteran's active service, including his 1983 lumbar strain. The March 2010 VA examiner concluded that, based on the Veteran's surgical, social and occupational history, his currently diagnosed herniated disc and DDD were not etiologically related to his active service. The private and VA clinical records are highly probative in comparison with the recollections and statements of the Veteran over the years because they were generated with a view towards medical diagnosis and treatment, as opposed to the Veteran's assertions made during an attempt to gain compensation benefits. Thus, while the Veteran has been consistent in reporting a history of a low back injury in 1983, he has been inconsistent in his statements regarding continuity and severity of symptomatology. His statements about symptomatology also are inconsistent with his 2002-2003 clinical records which indicate no history of low back pain and an insidious onset of low back pain in December 2002; these clinical records also, contrary to testimony by the Veteran, do not reflect that the Veteran was advised his low back complaints from December 2002 onward were related to any in-service incident. Such inconsistency undermines the veracity of the statements. Accordingly, the Board finds the Veteran's statements asserting symptomatology since service lack credibility. The Board acknowledges the Veteran's belief that his current back disorder diagnosed as a herniated disc at L4-5 with fusion and DDD at L3-4 is related to his active service. However, as a layperson, the Veteran lacks the expertise required to answer the medical question of whether his currently diagnosed low back disorders are etiologically related to service. As discussed above, the VA orthopedist who examined the Veteran and reviewed his pertinent history has provided an opinion against the claim. There is no contrary medical opinion of record. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a lower back disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs