Citation Nr: 1318121 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-31 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1977 to October 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Board sent the Veteran a letter requesting clarification regarding his request for a hearing, but the Veteran has not responded. Accordingly, the hearing request is deemed withdrawn. In April 2012, the Board remanded the appeal for initial RO consideration of additional evidence associated with the file since the RO had last adjudicated the claim. The requested review and readjudication have been accomplished. FINDING OF FACT A lumbar spine disability was not affirmatively shown to have been present during active duty; a degenerative lumbar spine disability was not manifested to a compensable degree within one year from the date of separation from active duty; and a lumbar spine disability, first diagnosed after the period of active duty beyond the one-year presumptive period for forms of arthritis as a chronic disease, is unrelated to active duty. CONCLUSION OF LAW A lumbar spine disability was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by a letter dated in November 2004. The Veteran was notified of the evidence needed to substantiate a claim of service connection. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on her behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA treatment records, and Social Security Administration records. The Veteran has not been afforded a VA examination and related medical opinion, and the Board acknowledges the Veteran's representative argument that the 2006 VA medical opinion authored by one of the Veteran's treating physicians is sufficient to trigger VA's duty to provide the Veteran with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability). However, as will be fully discussed below, this medical opinion was predicated on the only evidence of record suggesting a theory of service connection, namely the Veteran's lay statements. The Board finds that these statements are not credible; therefore, the evidence of record is insufficient to trigger VA's duty to provide the Veteran with an examination. The Veteran was also offered an opportunity to testify at a Board hearing; however, as outlined above, no response was received to the Board's request for clarification as to whether he did indeed desire to participate in such a hearing, and accordingly his hearing request is deemed withdrawn. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires 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." Continuity of symptomatology after discharge is required where the condition noted during service 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). Service connection may also be granted for any disease diagnosed after discharge, 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 connection is presumed for chronic diseases, including forms of arthritis, that although not otherwise established as incurred in or aggravated by service, manifest to a compensable degree within one year of service. 38 C.F.R. § 3.309(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran had peacetime service. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records do not document any back complaints, treatment, or disorders. All medical examination reports, including the separation examination, reflect findings of a normal spine, and on all medical history reports, including on separation, the Veteran denied ever having experienced recurrent back pain. In April 1983, the Veteran injured his right hand when an explosion simulator malfunctioned. At the time of treatment, the Veteran did not report falling or sustaining injuries other than to his hand. The Veteran separated from service in October 1984. VA treatment records from 1985 through 2004 reflect no complaints of back pain or related diagnoses of a back disorder. On VA examination in June 1985, the only musculoskeletal abnormalities noted were of the Veteran's right hand. The Veteran was subsequently service-connected for the residuals of his in-service right hand injury. When seeking workers' compensation benefits in February 1992, the Veteran reported experiencing lower back pain with onset during his post-service employment as a tree trimmer from 1990 to 1991. As examinations of the Veteran's back were deemed normal, the disability evaluators variously characterized the Veteran's back symptoms as attributable to myalgia of the lumbar spine, fibromyalgia, and myoligamentous injury to the lumbar spine. In December 1999, the Veteran's back was examined by a VA treatment provider as a part of a comprehensive physical exam and was assessed as normal. During an examination performed for VA purposes (a QTC examination) in July 2000, the Veteran characterized his 1983 injuries resulting from an explosion as only affecting his right hand. Additionally, when reporting his medical history, the Veteran stated that he experienced episodic knee pain, with no mention of back pain or a back impairment. When seeking VA treatment in December 2004, the Veteran reported experiencing lower back pain and a history of lower back injury, although not specifying the type of injury or date of onset. Based on the results of a November 2004 radiographic study, an assessment of severe L-5/S-1 discogenic disease was noted. In April 2005, the Veteran reported to his VA treatment provider that he had been experiencing back pain that had been progressing in severity since an in-service fall. In August 2005, a VA treatment provider transcribed the Veteran's report of experiencing lower back pain with radiculopathy that began during his active service. At the time of treatment, the Veteran was requesting a letter characterizing him as disabled to allow him to bypass a waiting line for a homeless shelter. However, the treatment provider declined to do so, noting that the clinical examination of the Veteran was inconsistent with his reported symptomatology. Subsequent VA treatment records continue to reflect the Veteran's reports of the onset of his current lumbar spine disability during his active service, relating his back pain to the 1983 in-service simulator explosion, as specifically reflected in November 2005, January 2006, April 2006, December 2006, February 2007, and December 2007 VA treatment records. Based on the Veteran's reported history of his back disability, a VA physician authored a letter, at the Veteran's request, in February 2006 stating that the Veteran has been disabled since 1983 and continues to be so due to chronic low back pain and left leg weakness. In October 2007, a VA physician authored letter stating that the Veteran has been diagnosed with chronic lower back pain and left S1 radiculopathy. However, the physician offered no opinion regarding the etiology of this disability. Subsequent VA treatment records characterize the Veteran's lumbar spine disability as degenerative joint disease with some neural foraminal stenosis. Analysis On the basis of the service treatment records alone, lumbar degenerative joint disease was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. Additionally, as lumbar degenerative joint disease was first diagnosed in 2004, the chronic disease did not manifest to a compensable degree within one year of service, entitling him to presumptive service connection pursuant to 38 C.F.R. § 3.309(a). Nevertheless, service connection may be established by chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b) or on the basis of an initial diagnosis after service, when all the evidence establishes that the disability was incurred in service under 38 C.F.R. § 3.303(d). Here chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do apply, because a lumbar degenerative joint disease is a chronic disease (a form of arthritis) enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38C.F.R. §§ 3.303(b), 3.309(a)). As for chronicity, in the absence of any complaint, finding, history, symptom, treatment, or diagnosis of back pain during service, the service treatment records lack the documentation of the combination of manifestations sufficient to identify a lumbar spine disability and sufficient observation to establish chronicity during service. As the Veteran is competent to describe an impairment of his lumbar spine, as these symptoms are within the realm of his personal experience, his statements that he had back symptomatology during service are admissible evidence. 38 C.F.R. § 3.159 (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); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). However, the Veteran's statements are both internally inconsistent and inconsistent with the evidence of record, thereby indicating their inherent unreliability. The Veteran's post-service reports of incurring a back injury in 1983 as the result of a simulator explosion are inconsistent with his failure to report any such back injury at the time of his related treatment in 1983 or thereafter until 2005. Likewise, the Veteran's post-service reports of experiencing a recurrent back disability since service are inconsistent with his denial of ever having experienced recurrent back pain when completing his separation medical history report. Moreover, the Veteran's affirmation of experiencing other physical impairments at this time indicates his willingness to report such physical impairments. The Veteran's recent reports of in-service injury are also inconsistent with statements made in 1992, in conjunction with seeking workers' compensation disability benefits, at which time he reported the onset of lower back pain during his period of employment from 1990 to 1991. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). The Veteran's assertion that he incurred a back injury in service and has experienced a chronic residual back impairment since service is inconsistent with the voluminous VA medical treatment of record, which spans from 1985 to the present, and which reflects no reports of a back impairment until 2004, approximately 20 years after service and during the year in which the Veteran filed the instant claim for service connection compensation. These treatment records also reflect clinical assessments of the Veteran's back as normal in 1999 and 2000. Additionally, the conclusion noted in the Veteran's August 2005 VA treatment record that his reported back symptoms were inconsistent with clinical findings, as well as VA examination reports (conducted to assess the Veteran's service-connected right hand disability), which find that the Veteran's reports of his right hand symptoms were not explainable by any clinical observations, further indicate that the Veteran is an unreliable historian. As the Veteran's lay evidence is not credible, the lay evidence has no probative value. As the only medical opinion of record, which summarily states that the Veteran has been disabled since 1983 due to his back disability, was clearly predicated on the Veteran's unreliable medical history, the medical opinion is also of no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994) (holding that an opinion based on an inaccurate history has little probative value); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board must reject medical opinions that are based on incorrect facts); see also Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). As there is no probative evidence of record linking the Veteran's current lumbar spine disability to service, the Board finds that the preponderance of the evidence is against the claim of service connection for a lumbar spine disability, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs