Citation Nr: 1317499	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  07-13 269A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from November 1967 to October 1970 and from November 1970 to January 1978.

This appeal to the Board of Veterans' Appeals (Board) is from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's petition to reopen this claim for service connection for a low back disorder.

This claim previously had been considered and denied in a March 2004 rating decision, and that prior decision had become final and binding based on the evidence then of record, in turn requiring new and material evidence since that decision to reopen this claim and warrant further consideration of this claim on its underlying merits.  38 C.F.R. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  In a January 2011 decision, however, the Board determined there was the required new and material evidence since that earlier March 2004 decision and, therefore, reopened the claim.  But rather than immediately readjudicating this claim on its underlying merits, the Board instead remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  This additional development especially included trying to obtain any additional records concerning the Veteran's service and, in particular, regarding her purported low back injury in service (such as might be documented in base records or sick call logs).  This additional development also involved searching for any additional evaluation or treatment records since service, including regarding any evaluation or treatment she may have received from VA from the time of her discharge from service in 1978 until 2004, and, if possible, obtaining confirmation in writing of an alleged opinion of her private physician that her compression fractures at the L1 and L4 levels are related to her claimed injury in service.  Lastly, a VA compensation examination was to be scheduled for a medical nexus opinion concerning this determinative issue of causation.


However, because not all of those January 2011 remand directives were completed, the Board again remanded the claim in November 2011.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance).

These remand directives since have been completed to the extent possible, so the claim is again before the Board for further appellate consideration.


FINDING OF FACT

The most probative (competent and credible) medical and other evidence of record indicates the Veteran's current low back disorder is unrelated to her military service, including especially to her purported slip-and-fall injury in Hanau, Germany.


CONCLUSION OF LAW

A chronic low back disorder was not incurred in or aggravated by the Veteran's active military service and arthritis may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  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).

Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).


Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

This VCAA duty to notify initially was satisfied by way of pre-adjudicatory letters the RO sent to the Veteran in January and April 2006, which at that time addressed the issue of whether new and material had been submitted to reopen this previously denied claim of entitlement to service connection for a low back disorder.  See Kent v. Nicholson, 20 Vet. App. 1 (2006), and VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), discussing the type of notice required when there is a petition to reopen a claim that has been previously considered and denied and the decision since has become final and binding based on the evidence then of record.  An additional VCAA notice letter was sent to the Veteran in June 2007.  And after the Board reopened her claim in January 2011, additional notice letters were sent to her in January 2011, November 2011, and January 2013, including as concerning the type of information and evidence needed to substantiate her claim on its underlying merits.  And after all notice was provided to her, her claim was then readjudicated by way of the February 2013 SSOC.  So she has received all required notice concerning her claim, and it has been reconsidered since providing all required notice.

VA also as mentioned has a duty to assist the Veteran in the development of this claim.  This duty includes assisting her in the procurement of her service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

She asserts that she slipped and fell during service in Hanau, Germany, injuring her low back, and that her current low back disability is attributable to or the result of that injury in service.  The AMC first attempted to obtain copies of any clinical (inpatient) treatment records from a hospital in Heidelberg, Germany, dated from January to February 1977.  No such records were found, but presumably because the Veteran was no longer stationed in Germany - having, instead, concluded her service there the previous year, in June 1976.  Thus, the AMC was then requested to obtain any sick call log or base records from Hanau, Germany, from during the time when she was stationed in Germany, that being from March 29, 1974 to June 24, 1976.  In response, the National Personnel Records Center (NPRC), which is a military records repository, indicated that sick reports were discontinued in 1953.  It also found no 1975 or 1976 clinical records in Hanau, Germany, pertinent to this Veteran.  Also, although the NPRC noted a 1974 listing for Hanau inpatient, any 1974 inpatient records pertinent to the Veteran at Hanau, Germany, were requested, but none were found.  See request for records completed in February 2013.  The Veteran was also called but she informed VA that she was not in possession of these records nor did she know the location of any such records.  Ultimately, then, the RO/AMC issued a memorandum in February 2013 finding that any STRs showing the Veteran's reported fall in Hanau, Germany, during her service there from March 1974 to June 1976 are unavailable for review.  It was determined that all efforts to obtain these records had been exhausted and that further attempts to locate them would be futile.  38 C.F.R. § 3.159(c)(2), (e)(1).

The claims file does contain several STRs, so not all of the records concerning the Veteran's service are missing or unaccounted for.  Her post-service VA outpatient treatment records and private medical records also are in the file for consideration.  As well, she had a VA compensation examination in December 2011 for a medical nexus opinion concerning the etiology of her low back disorder, especially in terms of the likelihood it is related or attributable to her claimed 
slip-and-fall injury in service.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

She has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable.  No further notice or assistance to her with this claim therefore is required.  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).  She has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VA's duties to notify and assist her with this claim have been satisfied.

Legal Criteria - Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).


In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  
Specifically, the evidence must show (1) the existence of a current disability; 
(2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement).  Id.

However, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  


The Federal Circuit Court explained that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above.  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  
Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a Veteran can establish entitlement to service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service-connected benefits.  Id.  For example, the Federal Circuit Court held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  Id. at 1336-37, 1340. 

Degenerative disc disease (DDD) is not a condition identified in § 3.309(a) as chronic, per se, whereas degenerative joint disease (DJD), i.e., arthritis, is.  So only DJD, not also DDD, is entitled to this proof and pleading exception provided by § 3.303(b) by showing continuity of symptomatology.

Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether such evidence is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).


Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Analysis

In this particular case at hand, as mentioned, the Veteran asserts that she has a current low back disability that is the result of an injury that occurred during her active military service.  She explains that she slipped and fell backwards, landing on her back, while walking into her barracks in the 1970s in Hanau, Germany.  She contends that a spinal vertebra was fractured, that she went to sick call right after the injury, that she received a diagnosis of back spasms, and that medication and bed rest were prescribed.  Throughout the course of this appeal, she has reported several different dates for this alleged injury.  But some of the records in the file, including some of her personal statements, reveal she has impaired memory, so perhaps reason for this discrepancy.  As an example, in her original August 2003 claim, she said the fall occurred in 1974, and in a January 2006 statement she was a bit more specific and said the fall occurred in March 1974.  But in January and May 2006, she said she fell on her back in the mid-to-late 1970s.  In September 2006 she stated the injury occurred in 1977, but in October 2006 she said it occurred in 1976.  An October 2006 lay statement from her niece (which appears to have been written by her but signed by her niece) reflects that the injury occurred in January 1976.  In December 2008, she reported that the injury occurred in January 1977.


The Veteran's DD Form 214 indicates she served in Germany from March 29, 1974 to June 24, 1976.  She therefore has at times alleged to have sustained this injury within this timeframe when she was stationed in Germany, whereas at other times the date that she has given has not coincided with this service.  Pursuant to the November 2011 remand, the Board requested that she provide a closer approximation of the actual date of the injury; however, although she responded in a statement, she did not provide any further details.

At any rate, the evidence of record confirms she has disabilities affecting her low back.  Private medical records dated in March 2003 reflect that she was treated for complaints of back pain after a motor vehicle accident, but also indicate she reported a "long history" of back pain, so even prior to that accident.  An April 2004 X-ray of her lumbosacral spine revealed mild degenerative arthritic disease, but noted as probably normal for her age.  November 2005 private X-rays of her lumbar spine showed no fracture, but there was degenerative change at L3, L4, and L5.  A February 2006 private treatment note reflects that a physician's assistant, K.B., diagnosed low back pain with a questionable compression fracture of L4, after reviewing an X-ray taken that same day.  A May 2006 note from a VA physician indicates she had reviewed the Veteran's private X-ray of the lumbosacral spine, and that it showed no evidence of fracture, but did show degenerative changes of the lumbar spine.  The report of a June 2006 X-ray shows disc space narrowing, degenerative change, and slight anterior wedge compression of L2.  VA outpatient treatment records dated in June 2006 show the Veteran complained of low back pain since a fall onto her back in a store in early June 2006.  Finally, the most recent VA examination report dated in December 2011 shows diagnoses of both degenerative joint and disc disease of the lumbar spine.


Despite her current low back disability, however, there is no evidence of an injury to her back during her service.  Her STRs are completely devoid of any reference to a low back injury or low back diagnosis.  The Board observes that she did report low back pain along with urinary urgency and frequency in December 1968 when seen at Darnall Army Hospital in Fort Hood, Texas, but a urinalysis confirmed a kidney infection, so not a diagnosis specifically referable to her low back, including in relation to any prior injury such as a slip and fall.  That also was well before she alleges the injury to have occurred, even considering all of the different dates that she has provided or approximated.

Similarly, in April 1970, she reported pain in her kidneys and low back and was prescribed medication from the 539th General Dispensary, APO, New York, for what appears to have been another kidney infection.  Indeed, she was noted to have chronic urinary frequency when she had similar complaints in July 1970.  Notably, however, there is no suggestion of any low back complaints related to any slip-and-fall injury.  A re-enlistment examination report dated in May 1971 indicates that her spine was normal, and she denied a history of recurrent back pain.  Similarly, her spine was listed as normal during her second separation examination in January 1978 and, at that time, she also denied a history of recurrent back pain. What is perhaps even as significant is that that examination occurred after many of the dates she provided for when she was injured in the slip-and-fall accident.   Thus, this evidence on the whole tends to show that her complaints of low back pain in service were instead related to a urinary condition or kidney infection and not a low back injury as she is now alleging.

But even assuming for the sake of argument that a low back injury occurred in Hanau, Germany, as alleged, the fact remains that her low back complaints reported during service were ultimately determined to have been the result of her kidney/urinary problems, and there is absolutely no evidence of low back complaints unrelated to her kidney/urinary problems.

There also is no X-ray evidence of arthritis of the low back within the first 
post-service year.  To the contrary, X-ray evidence of arthritis of the low back is not first shown in the record until 2004, decades after her discharge from service.

Arthritis, including if, as here, claimed to be the result of trauma, so post-traumatic,  must be objectively confirmed by X-ray.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010.  Therefore, the Veteran is not competent to say she had arthritis affecting her low back within the initial year after her service, that is, absent objective radiographic confirmation of this.

The determinative issue, therefore, is whether her current low back disability, including the degenerative changes since shown, are the result of the type of trauma during service alleged or, instead, the result of factors unrelated to her military service, including the injuries she has sustained since service in the intercurrent motor vehicle accident and when she fell in a store.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

Following and as a result of the Board's January 2011 remand, a VA examination was scheduled, but the Veteran failed to report for the evaluation.  In an October 2011 written brief, the Veteran's representative asserted the Veteran had not received the required notice of that scheduled VA examination and said the Veteran was willing to report for the examination if rescheduled, to support her appeal.

In the file is a copy of the letter sent to the Veteran notifying her of that scheduled VA examination.  There is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties."  See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for this presumption to attach).  This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary."  Schoolman v. West, 12 Vet. App. 307, 310 (1999).  Moreover, even omission of an examination notification letter in a claims file, which, again, is not the situation here, will not rebut this presumption where VA's regular practice does not include retaining a hard copy of the letter in the claims file.  See Kyhn v. Shinseki, 23 Vet. App. 335 (2010).

Since, however, the claim required further development for other reasons, the Board gave her another opportunity to report for her VA compensation examination for the needed medical nexus opinion concerning the etiology of her low back disorder and, in particular, any potential relationship to the claimed injury in service versus what has occurred since service.

After examining the Veteran and reviewing her claims file, a VA examiner determined in December 2011 that the Veteran's current low back disability is not caused by, or a result of, her military service.  Rather, the examiner noted intercurrent events such as the Veteran's motor vehicle accident in 2003 and her fall in 2006 as contributing to the current findings, and determined that her present findings are likely age-related and absolutely unrelated to her military service.  Hence, this VA examiner disassociated all current low back disability from the Veteran's military service, so did not attribute it to any low back injury or other trauma she sustained in service.

The Board acknowledges that the additional STRs showing her earlier complaints of low back and kidney pain were not available for review at the time of the December 2011 examination.  Nonetheless, even considering this evidence of a urinary condition manifested by low back pain, there still is no evidence of the claimed low back injury in service, and by most accounts the urinary condition or kidney infection that was causing those low back complaints in service even preceded the claimed slip-and-fall low back injury, rather than came after it.  By logical deduction, then, they are totally unrelated incidents.


And as further noted by the VA examiner, there is no evidence of a chronic or permanent low back condition during the Veteran's service since she denied having any recurrent back pain when questioned concerning this during her re-enlistment and separation examinations.  Additionally, there is no evidence of a chronic low back problem following service for many, many years, as also was noted by the VA examiner.  Also noted and equally significant is the fact that, when the Veteran sought medical treatment in April 2004, she reported having had back pain for only one year, so only since 2003 or thereabouts.  She therefore did not date or relate her low back pain back to her military service, including to any injury she had sustained while in service.  Moreover, the examiner ultimately was unable to relate the Veteran's low back disability to her service, especially given the lack of a chronic low back condition during her service and in the early years following separation.

This December 2011 VA opinion is highly probative evidence, as it relied on sufficient facts and data, provided a rationale for the opinion, and contains sound reasoning.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Hence, the probative evidence does not relate the Veteran's current low back disability to any disease, injury or even during her military service.  She has not offered a medical opinion linking her current low back disability to her service, so the VA compensation examiner's opinion against this notion is unrefuted.

The Veteran is competent to report observable symptoms, such as pain in her low back.  However, the question of whether her current low back disability is related to her service is a complex medical question, not capable of lay observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins).  Because the record is unremarkable for any evidence suggesting she has the appropriate training, experience, or expertise to provide a medical opinion concerning a back condition, she is not competent to comment on the etiology of her low back disability.  

Accordingly, the competent medical evidence outweighs her unsubstantiated lay reports regarding etiology, and it is entirely permissible in this circumstance to give more credence to the medical evidence, including the VA opinion, over her unsubstantiated lay testimony.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because she is an interested party, the claimant's interest may affect the credibility of her testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding 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 . . . .").  

Also, after considering all of the relevant lay and medical evidence, the Board finds that the weight of this evidence shows the Veteran has not experienced continuous symptoms referable to her low back since her service.  That is, her assertion of continuity of symptomatology since service, while competent, is not also credible, therefore not ultimately probative.  As explained, arthritis is amongst the conditions listed in § 3.309(a) as chronic, per se, so subject to this continuity of symptomatology pleading and proof exception allowing for the showing of continuity of symptomatology since service to establish the required chronicity of disease or injury in service and linkage between current disability and service.  But as the VA compensation examiner observed, here, there is no evidence of a chronic low back condition until many, many years after the Veteran's discharge from service.  The record shows she did not report a history of back pain until 2003, and only after she had been involved in an intervening motor vehicle accident.  Indeed, actual low back pathology is not shown until April 2004, which in either case is decades after her military service ended.  And while this, alone, is not altogether determinative or dispositive of whether she had low back problems during those many intervening years dating back to her service, it is nonetheless probative evidence tending to refute this notion.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability).  She therefore has not established the required linkage between her current low back disability and any event, disease or injury during her military service - including by alternative showing the required continuity of symptomatology since her service discharge as pertaining specifically to her low back arthritis.  And, as indicated, the medical evidence of record does not include any medical nexus opinion linking her current low back disability to her service.  In fact, to the contrary, the only medical evidence of record addressing this ultimately determinative issue does not support this notion.

For these reasons and bases, the preponderance of the evidence is against finding that the Veteran's low back disability is related to her active military service, including especially to her claimed slip-and-fall injury.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

ORDER

The claim of entitlement to service connection for a low back disorder is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs