Citation Nr: 1319112 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-06 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied service connection for a low back disability. In a September 2009 appeal, the Veteran requested a hearing before the Board. However, in an October 2009 letter, he withdrew his hearing request. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In an April 2010 decision, the Board dismissed the claim for service connection for PTSD after the Veteran submitted a written statement withdrawing the claim. The Board remanded the issues of entitlement to service connection for right ear hearing loss and a low back disorder for further evidentiary development. After completing the requested development, the RO granted service connection for right ear hearing loss in a January 2012 rating decision. This is a full grant of the benefit sought on appeal; hence, the issue is no longer in appellate status and will not be addressed herein. Service connection for a low back disorder remained denied in a January 2012 supplemental statement of the case. FINDING OF FACT A chronic low back disorder is not shown in service, arthritis of the lumbar spine is not diagnosed within a year of service discharge, and the preponderance of the evidence fails to shows that the Veteran's diagnosed lumbar degenerative joint disease and degenerative disc disease had its onset in service or is otherwise related to his period of active duty, including an in-service truck accident. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by active service, and arthritis of the lumbosacral spine may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2005 of the criteria for establishing direct and secondary service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. A November 2005 letter provided notice of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements. Nothing more was required. With respect with to the Dingess notice, this notice was not provided prior to the initial unfavorable decision on the claim by the RO. However, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. Such includes, but is not limited to, service, VA and private treatment records and records from the Social Security Administration. The Veteran recently reported a history of treatment for low back pain at Unionville Hospital during the "early days". See Report of VA examination dated July 2010. Records of from the facility are not on file. In this regard, the Board emphasizes that the Veteran has been provided notice on three separate occasions to identify any private care provider who had treated him for his back complaints since service, and to provide the necessary medical release form, and that the Veteran has done so with respect to several health care providers. Such demonstrates that he understood the nature of the request/notice, and that he has elected not to seek out those records. Even a sympathetic reading of his statement does not yield a request for VA's assistance in obtaining any records of treatment by this provider that may exist. Although he identified a treatment provider, he did so by name only, specified no dates of treatment, and provided no authorization or release for VA to obtain the records. This does not trigger any duty on VA's part. In July 2010, VA provided the Veteran a medical examination and obtained a medical opinion addressing whether his current low back disability had its onset during or was caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's back injury, he provided a sufficiently detailed description of the disability, and he provided an analysis to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that 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, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for arthritis will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he presently has a low back disability that is due to a motor vehicle accident that occurred during his military service in June 1968. He has related that when he was stationed in Okinawa, Japan, he was in a truck accident and was ejected. His personnel records reflect a military occupational specialty of motor vehicle operator. Photographs submitted by the Veteran show him in front of a military vehicle. While the vehicle looks like it may have been in a motor vehicle accident, the Veteran does not appear to be in any distress. There is no evidence of any injury in the picture. His service treatment records do not mention any complaints, symptoms, or diagnoses related to a low back disability or treatment for any injuries sustained as a result of a motor vehicle accident. Private treatment records dated in June 2003 reflect that the Veteran was injured in a recent motor vehicle accident, with multiple aches and pains, but there is no indication that he sustained, or was treated for, any low back injury. Records dated in April 2004 indicate that the Veteran injured his low back at work in March 2004 when he was lifting a metal folding table that weighed approximately 130 pounds and felt a pulling sensation in the mid-line of his low back. Since then, he complained of persistent pain and was diagnosed with an acute lumbar strain. The assessment was acute lumbar strain. There was no mention of a prior low back injury during military service. An MRI showed degenerative disc disease and degenerative changes. The Veteran was seen by C.M., D.O., in May 2004 and June 2004 with continued complaints of pain in his low back. A September 2004 treatment note from B.W.S., D.O., reported that the Veteran had low back pain with degenerative joint disease and facet arthritis as well as somatic dysfunction of the pelvis, sacrum, lumbar, thoracic and ribs. It was noted that he was no longer on workman's compensation but was getting his disability now. Earlier notes from this clinician showed that the Veteran was treated with injections with some improvement in his symptoms. None of those records make reference to the Veteran's active service, to include sustaining injuries in an motor vehicle accident or experiencing chronic low back pain since that time. Documents from the Social Security Administration show that the Veteran has been disabled since July 2004 with primary diagnoses of disorders of the back and emphysema. Upon VA general medical examination in July 2006, an MRI of the Veteran's lumbar spine revealed minimal sized osteophytes and spine and disc space narrowing at the L5 and S1 level. Lay statements from a friend and his spouse dated in May 2009 indicate that the individuals recalled the Veteran complaining of back pain for many years. His wife recalls him complaining of low back pain since 1969. His friend similarly reports that the Veteran had no complaints of back pain prior to service, but that he has endorsed low back symptomatology since he left. Upon VA examination in July 2010, the Veteran gave a history of a back injury after he was involved in a truck accident. He indicated that he was examined in sick bay but could not recall if X-rays were performed. He reported that he has sought medical care for his back since 1969. A thorough clinical evaluation was performed and the diagnosis was lumbar degenerative joint disease and degenerative disc disease with questionable old T11 compression on radiograph. The clinician opined that that the Veteran's currently lumbar diseases were not related to his military service, including the in-service accident. He noted that the Veteran's service treatment records did not document any back injuries or complaints. Moreover, when asked to detail his back injuries, the Veteran did not mention the work-related injury he sustained in 2004. Additionally, the lay statements submitted by the Veteran did not offer any additional documentary evidence on the timeline of the Veteran's injuries and complaints. The Board finds that the preponderance of the evidence is against the claim for service connection for a low back disorder because the most probative evidence of record, the July 2010 VA examination report, concluded that the Veteran's currently manifest lumbar degenerative joint disease and degenerative disc disease were not related to his military service, including the in-service accident. Winsett v. West, 11 Vet. App. 420 (1998). That opinion was based on a full review of the record, the Veteran's statements regarding the initial injury, his reports of continuity of symptomatology, and a thorough clinical evaluation. Bloom v. West, 12 Vet. App. 185 (1999). There is no medical opinion of record that contradicts the negative findings made in the July 2010 VA report. Further, as arthritis of the lumbar spine was not diagnosed until many years after service, a presumption of service connection is not warranted. The claim is also supported by the Veteran's lay statements that he believes there is a nexus between his current low back disorder and service. Initially, he has not demonstrated that he is an expert when it comes to diagnosis or etiology of orthopedic conditions; he is therefore a layperson in this regard. Nonetheless, the Board finds that it is within the realm of common medical knowledge for the Veteran to state that an injury to his back (from an motor vehicle accident) may cause the subsequent development of lumbar degenerative joint and disc disease. Therefore, the Veteran's lay opinion could be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, in this case, the evidence demonstrates that there was a substantial gap in time between the Veteran's alleged in service motor vehicle accident and the initial manifestation of his current low back disability. In such a circumstance, other potential causes of his current low back disability must be considered. Significantly, determining the precise etiology of the Veteran's low back disability is not a simple question, as there are multiple potential etiologies of the Veteran's lumbar degenerative joint and disc disease, including several injuries that occurred post service and his age, as cited by the VA examiner. Ascertaining the etiology of lumbar degenerative joint and disc disease involves considering multiple factors and knowledge of how those factors interact with the human orthopedic structure. In this case, the facts are complex enough that the Veteran's intuition about the cause of his low back disability is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") Thus, the Board finds that the Veteran's opinion is not entitled to significant weight as compared to the July 2010 VA opinion. Additionally, the Board finds that the Veteran's assertions of continuity of symptomatology, as well those of his friend and spouse, are not credible in light of the contemporaneous medical reports that failed to show that the Veteran had any chronic low back disability or complaints related to his low back at the time of his discharge or in the immediate years following his separation. Moreover, the private treatment records clearly denote a work-related low back injury in 2004, more than 30 years after separation. None those records, which were prepared prior to the Veteran filing his claim for VA benefits, make reference to an inservice motor vehicle accident or chronic low back pain since service. Clearly, had he been experiencing low back pain since 1969, as he now alleges, it would have been in his best interest to report such to his treating physicians. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative/credible than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing low back pain or problems since service. The Veteran has been provided with ample opportunity to present competent medical or competent and credible lay evidence to support his claim. However, he has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). In the absence of any persuasive evidence that the Veteran's currently manifest low back disabilities are etiologically related to active service, service connection is not warranted and the claim must be denied. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs