Citation Nr: 1319629	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  05-24 516		)	DATE
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On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Entitlement to service connection for a low back disorder.  

2.  Entitlement to service connection for Hepatitis B.  

3.  Entitlement to service connection for a right shoulder disorder.  

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel



INTRODUCTION

The Veteran served on active duty from January 1968 to January 1971 and from September 1971 to September 1992, including a tour in Vietnam.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

He testified at a hearing at the RO in August 2010 before a Veterans Law Judge of the Board (Travel Board hearing).  A transcript of that hearing has been associated with the claims file, so is part of the record on appeal.  At that time, the Veteran withdrew his appeal for higher ratings for Achilles tendonitis of his ankles, right and left.  38 C.F.R. § 20.204 (2012).

In November 2010, the Board resultantly dismissed those claims for increased ratings for the bilateral ankle Achilles tendonitis since withdrawn.  The Board also, however, reopened the Veteran's claim for service connection for a low back disorder and then proceeded to remand this claim, along with the claims for service connection for Hepatitis B and a right shoulder disorder, for further development and consideration.  The Board instead granted a still additional claim for service connection for hypertension, which was effectuated in a subsequent December 2010 rating decision.  And since the Veteran did not, in response, separately appeal either the rating or effective date assigned for his hypertension, that claim also is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156, 
1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).


In March 2012, the Veteran was informed that the Veterans Law Judge that had presided over the Travel Board hearing in August 2010 was no longer employed at the Board, since having retired.  The Veteran therefore was given opportunity for another hearing before a different Veterans Law Judge of the Board who would ultimately decide his appeal of the remaining claims.  38 C.F.R. § 20.707 (2012).  In April 2012, in response, the Veteran requested another Travel Board hearing.  So later in April 2012 the Board remanded these remaining claims to schedule this additional Travel Board hearing, which the Veteran since has had in July 2012 before the undersigned Veterans Law Judge of the Board.  A transcript of this additional hearing also is of record.

In December 2012, because of the medical complexities concerning the claim of entitlement to service connection for a low back disorder, the Board requested a medical expert opinion from the Veterans Health Administration (VHA).  The designated physician, who is a Staff Physician in the Neurosurgery Section of the VA Palo Alto Health Care System, provided her response opinion in March 2013, and the Board in turn provided the Veteran and his representative a copy of this opinion in April 2013.  Although given 60 days to submit additional evidence or argument in response to it, the Veteran elected not to, as he indicated on the enclosed Medical Opinion Response Form that he returned to the Board later in April 2013, perhaps because the opinion is favorable to his claim.  Indeed, on the basis of this opinion, the Board is granting this claim.  His representative submitted an additional statement in May 2013 in response to the medical expert opinion.



FINDINGS OF FACT

1.  The most competent and credible, so ultimately probative, evidence indicates the Veteran's low back disorder is not a congenital abnormality, so did not predate his military service, rather, more likely than not originated during or as a result of his service.

2.  But the most competent and credible, so ultimately probative, evidence indicates he has not had confirmation of Hepatitis B, such as in the way of a clinical diagnosis, at any time since filing his claim for this condition.

3.  However, it is just as likely as not that his right shoulder disorder originated during or as a result of his military service.


CONCLUSIONS OF LAW

1.  His low back disorder is due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  It is not shown he has present disability attributable to Hepatitis B, much less as a result of disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  But resolving all reasonable doubt in his favor, his right shoulder disorder is due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified in part at 38 C.F.R. § 3.159.

Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide.

The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that to the extent possible the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim.  Pelegrini at 119-20.  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA 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 not frustrated and 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); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

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

Here, in March 2003, prior to initially adjudicating his claims in the June 2003 rating decision at issue, so in the preferred sequence, the Veteran was provided notice of the VCAA.  An additional VCAA letter was sent in January 2005.  These letters, especially in combination, indicated the types of information and evidence necessary to substantiate the claims and the division of responsibility between him and VA in obtaining this supporting evidence, including lay evidence and both private and VA medical treatment records.  He also received notice in a letter dated in March 2006, but accompanying documents and evidence from 2010, concerning the "downstream" disability rating and effective date elements of his claims.  Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  As well, he since has been provided SSOCs in November 2006, February 2010, May 2010, and March 2012 readjudicating the claims, so since even the provision of this additional notice regarding these "downstream" elements of the claims.  See again Mayfield and Prickett, supra.

And as concerning the duty to assist him with these claims, all relevant evidence necessary for an equitable resolution has been identified and obtained, to the extent possible.  The evidence of record includes his service treatment records (STRs), private medical records, VA outpatient treatment records, the reports of his VA compensation examinations, including the medical nexus opinions obtained, the VHA medical expert opinion, a lay statement from the Veteran's ex-wife, a private physician's opinion, and personal statements and hearing testimony from the Veteran and his representative.

The April 2003, October 2006, December 2010, January 2011 VA examination reports reflect that the examiners reviewed the Veteran's medical history, documented his then current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  And with the benefit of the VHA medical expert opinion that was obtained additionally, including reconciling the conflicting opinions that previously had been provided, there is now the medical evidence needed to decide these claims, including especially as concerning the low back disorder.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).  Additional opinion or reexamination therefore is not needed.  38 C.F.R. §§ 3.327, 4.2.

Consider also that the Board remanded these claims in April 2012 so the Veteran could have an additional Travel Board hearing, which he had in July 2012.  So there has been compliance with that remand directive.  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).  But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with; in other words, there does not have to be "exact" compliance).

Regarding the Veteran's two Travel Board hearings, the initial one in August 2010 and the more recent one in July 2012, the transcripts reflect that the presiding judges fully explained the issues and suggested the submission of evidence that the Veteran may have overlooked and that would be advantageous to his position, in accordance with 38 C.F.R. § 3.103(c)(2) and as explained in Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The presiding judges identified the material issues towards establishing his entitlement to service connection for a low back disorder, Hepatitis B and a right shoulder disorder.  So to this end, during the course of the hearings, the presiding judges discussed with the Veteran whether any physician had attributed these claimed disabilities to his military service, whether they dated back to versus preceded his military service, and whether a physician's opinion could be obtained explaining why the person believed these disabilities are related or attributable to his service, to in turn establish the required nexus to his service.  The presiding judges also explained that there were, in total, three requirements for granting service connection for these claimed disabilities, namely, showing a relevant disease, injury or event during service, showing the Veteran now has these claimed disabilities (or that he at least has since filing these claims), and that there is a relationship or correlation between these disabilities and the disease, injury or event during his military service.  Thus, the Board finds that the presiding judges' duties and responsibilities according to 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by these hearings that were provided.  See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)).

The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  To the contrary, he specifically indicated in his recent April 2013 response to the medical expert opinion that was obtained, albeit only concerning the claim for his low back disorder, that he had no further evidence to submit, and that he therefore wanted the Board to proceed immediately with the adjudication of his appeal.  Hence, there is no indication there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of this appeal and most recently have in May 2013 in the additional brief from the Veteran's representative in response to the medical expert opinion.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2012).

Governing Statutes, Regulations and Precedent Cases

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 United States 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.  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.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (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))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. 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.").  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 or abnormal heart action in claims for arthritis or heart disease, for example) 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 noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing 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. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement 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).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the 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. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding 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 hearing loss was not among the chronic diseases listed in section 3.309(a)).  While degenerative joint disease (DJD), i.e., arthritis is recognized as chronic under § 3.309(a) and therefore within the purview of the continuity of symptomatology pleading exception afforded by § 3.303(b), degenerative disc disease (DDD), rotator cuff syndrome, shoulder impingement and Hepatitis B are not.

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine whether 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 the evidence also is 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).  Third, the Board must assess the probative value and weight of the proffered evidence in light of the entirety of the record.  Gonzales, 218 F.3d at 1380-81.  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

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); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder).


However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  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 the Secretary's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

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).


To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, 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).

Further, the Federal Circuit Court has held that, 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.  See Buchanan, 451 F.3d at 1336 ("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 he is an interested party, the claimant's interest may affect the credibility of his 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 . . . .").

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

Low Back Disorder

In statements and testimony during the pendency of this appeal, the Veteran steadfastly has maintained that his low back disorder is entirely the result of his military service, not instead anything, including injury, which had occurred prior to his service.


His STRs reflect normal findings of his spine upon clinical evaluation during his November 1967 enlistment examination.  In the summary of defects and diagnoses however, low back strain was noted, although the service medical officer noted there was no permanent disability and referred to a physician's letter that was contemporaneously dated in January 1968 and included in the STRs.  This notation indicated the Veteran was initially examined with normal findings of the spine upon clinical evaluation in November 1967 and reevaluated at a later time following receipt of the January 1968 letter from the private physician.  In a November 1967 Report of Medical History, the Veteran reported a history of recurrent back pain, specified as an old back injury that was noted however to then currently be asymptomatic.  In the January 1968 letter, the Veteran's private physician, Dr. Walter A. Johnson, M.D., indicated he had treated the Veteran in years past, in September 1964, for a low back strain that was the result of a football injury.  He also noted the Veteran did not return for further treatment and did not suffer any permanent injuries as a result of that earlier incident.  This physician's letter was referenced in the November 1967 enlistment examination report, and a notation dated in January 1968 on the enlistment examination report reflects that a physical inspection in January 1968 (so presumably referring to the reevaluation mentioned upon receipt of this additional letter from the private physician) was performed with no additional defects discovered.  The Veteran consequently was deemed physically fit for military service.

Thus, his STRs indicate he was evaluated a second time prior to his entrance into active service and found to have no defects, despite the January 1968 private physician's letter and notation of low back strain some 4 years earlier, in 1964, but with no permanent or residual disability from that prior injury.

A December 1970 expiration term of service (ETS) examination continues to reflect normal findings of the spine upon clinical evaluation, and the Veteran was noted to be in good health.  In a January 1971 statement of medical condition, he reported there had been no change in his medical condition since the last separation examination.  During a September 1971 enlistment examination, a clinical evaluation continued to reveal normal findings of his spine.  He reported having no history of recurrent back pain, broken bones, arthritis or bone or other joint deformity in a September 1971 Report of Medical History.  A December 1974 periodic examination and June 1977 reenlistment examination both revealed the same, normal findings of the spine upon clinical evaluation.  In a June 1977 Report of Medical History, he reported having no history of recurrent back pain, broken bones, arthritis or bone or other joint deformity.  An April 1979 periodic examination revealed normal findings of the spine upon clinical evaluation.  He reported having no history of recurrent back pain, broken bones, arthritis or bone or other joint deformity in the April 1979 Report of Medical History.  

An August 1983 STR, however, reflects that he complained of back pain and was diagnosed with rule out pinched nerve or dislocated disc.  Thereafter, he was seen again in August 1983 for complaints of severe low back pain without sciatica and was noted to have spasm of the paraspinal musculature from L2 to L5.  During a January 1988 over-40 examination, clinical evaluation of his spine revealed normal findings.  He reported having a history of recurrent back pain and arthritis, rheumatism or bursitis in the January 1988 Report of Medical History, although the history of arthritis, rheumatism or bursitis was not further specified as to whether that was in relation to his low back or elsewhere on his body.  In December 1989, he complained of a back spasm dating back to 1967.  He reported that he was told he had had a bony abnormality in his spine since birth, and the service medical officer noted questionable spondylolisthesis in parentheses.  The Veteran was diagnosed with lumbar spasm.  Prior to his separation from active service, a chronological record of medical care was compiled revealing his treatment for back pain in service in January 1968, August 1983 and December 1989.  During a June 1992 retirement examination, clinical evaluation of his spine revealed normal findings, although the summary of defects and diagnoses included occasional low back pain.  A June 1992 Report of Medical History reflects that he reported a history of broken bones and recurrent back pain, and the service medical officer noted in his summary that the Veteran's history included occasional low back pain.  

The Veteran's military service ended in September 1992, so a short time later.


During a January 1993 VA examination, so within a year of his separation from active service, the Veteran was diagnosed with status post low back sprain, noted as spondylolisthesis.  An accompanying X-ray report reflects findings of mild spondylolysis with L4 spondylolisthesis and no other significant abnormality.  During the examination, the Veteran reported that, while stationed at Fort Polk in January 1968, without any evidence of trauma or strain he suddenly had developed low back pain without leg radiation or worsening when coughing or sneezing.  He also reported recurrences in 1973 and 1989.

Private medical records from October 1994 to April 2008 and VA outpatient treatment reports from October 2002 to March 2010 reflect that, following the January 1993 VA examination, he thereafter was treated at the earliest in May 1996 for lumbar strain and rule out DJD.  Subsequent private and VA medical records reflect that he was variously treated for and diagnosed with low back disabilities including chronic low back pain, lumbar strain and rule out DJD, lumbar spinal stenosis, DJD with bulging discs at L4-L5 and L5-S1, acute lumbar strain, lumbago, spondylolisthesis, backache, not otherwise specified, and lumbar radiculopathy.

A July 2002 private X-ray report reflects degenerative disc changes and spondylolysis at L5.  

An August 2002 private magnetic resonance imaging (MRI) report reflects findings of dehydration of the intervertebral disc between L4-L5 and L5-S1, right paracentral focal disc protrusion at L3-L4 producing obliteration of the right lateral recess, broad based disc protrusion at L4-L5 and L5-S1 extending from the right to lateral recess, producing partial obliteration of the lateral recesses.  

A September 2002 private myelogram and computerized tomography (CT) scan revealed findings of extramedullary, intra/extradural defects at L3-L4, extramedullary intradural defect at L4-L5 with central spinal canal stenosis, degenerative disc at L5-S1, and minimal hypertrophy at L3-L4.  


A September 2002 private physician referenced the August 2002 MRI findings in his diagnosis when explaining the Veteran had pain in his lower back that went to the left leg with myelogram and CT studies showing significant spinal stenosis at L4-L5 and a lumbar MRI showing DJD with bulging discs at L4-L5 and L5-S1.

During an October 2006 VA orthopedic examination, the Veteran reported his then current low back symptoms to the VA examiner.  The examiner reviewed the claims file, including the STRs and summarized the Veteran's history of back problems.  An October 2006 X-ray of the lumbosacral spine revealed findings of generalized loss of disc space and marginal bony spur formation at L3 through L5 consistent with DDD.  The X-ray of the lumbar spine was also noted to show a pars defect at L5.  The Veteran was diagnosed with spondylolysis, pars defect at L5, no lower extremity radiculopathy and spondylosis of the lumbar spine secondary to the other diagnoses and age.  The examiner opined that the Veteran's active duty activities did not cause his present low back condition and that his current low back problems were not due to his military service.  Based on entry notes and the case file, that VA compensation examiner surmised that the Veteran knew he had injured his back prior to active duty and knew he had a congenital abnormality prior to his active duty service.  This VA examiner also observed that, during active duty, the Veteran did not sustain trauma to his back.  This examiner said he found just two entries during the Veteran's active duty service, which demonstrated treatment for his lumbar spine and did not reveal trauma, but simply reported subjective symptoms with functional limitations caused by a pre-existing condition that caused spasms.  This examiner also noted the congenital anomaly of the lumbar spine was evident prior to service, finding that the Veteran had an injury prior to active duty and he could not find an injury associated with the Veteran's lumbar spine based on the active duty medical records, but rather a susceptibility to paraspinal muscle spasms due to a pre-existing condition.  Therefore, he concluded, due to the facts he cited, the STRs, and the post service records, there was no reason to change the previous rating decisions regarding the Veteran's congenital abnormality and anomaly of the lumbar spine.  


During his initial August 2010 Travel Board hearing, the Veteran testified that he had a back spasm prior to his entry into active service while playing football during his high school years.  He stated he was treated for the spasm by a doctor and was cleared to enter the military.  The Veteran testified that he had no back problems when going through training in service in 1968 and it was not until 1983 that he had a back problem from playing racquetball and again in 1988.  He reported that he had back spasms in service and that someone had an opinion that it was due to a birth defect, although his mother disputed that report and the Veteran stated there was no proof of such in his records.  He reported he was then currently being treated for low back pain.  

In a December 2010 VA addendum report, the VA examiner who had performed the October 2006 examination also provided an addendum to his previous opinion.  Based on a review of the claims file, including additional evidence of record, he opined that the Veteran's current back condition was normal progression of the disease and this condition was not permanently aggravated by service.  He stated that, when working out in a known sport or exercise or a new sport or exercise, the musculature would tire and fatigue at some point and recover.  He noted that, if one did not recover, there may be a permanent condition that would flare up.  The examiner reiterated the Veteran had an injury prior to service with two references of the onset of the condition prior to service and that he entered active duty with a recurring injury of the lumbar spine with exacerbations with injury.  The examiner noted that, because of the Veteran's injury prior to his service playing football, which required specialty care and prescribed diathermy, his condition was recurring as a natural progression and was not caused by military service.  Thus, the VA examiner determined the Veteran's back problems in service were a normal progression and that his condition was not permanently aggravated by his service.


During his additional Travel Board hearing in July 2012, the Veteran continued to acknowledge sustaining a back injury before service while playing football in 1964, but he also continued to maintain that he had no residual or consequent problem and continued to play sports until 1967 when he graduated.  He stated he had no problems with his back from the time when he went into the military in 1968 to 1982, until he injured his back in 1983.  He reported that he initially hurt his back in service in 1983 while playing racquetball and had been seen by a physician.  Thereafter he reported injuring his back again and seeking treatment again in December 1989.  He testified that no X-rays of his back were taken during his active service and that, after he retired from active service, he went to physical therapy for his back, in the course of which X-rays and an MRI were taken.  He reported that he continued to receive treatment for his chronic back pain.  He reiterated that he believed all current disability referable to his low back was attributable entirely to things that had occurred during his military service, rather than beforehand.  

In December 2012, to try and resolve the medical complexities in this case and the conflicting medical opinions that had been provided to date regarding the origins, nature and extent of the Veteran's low back disability, the Board requested a VHA medical expert opinion from a specialist in neurosurgery.  In this request, the Board observed the need for an additional opinion was based on the fact that the VA examiner from the October 2006 VA examination and who had provided the December 2010 addendum report had based his opinions on an inaccurate factual premise.  Therefore, the Board found that the VA examiner's opinions were inadequate for resolving the determinative issue as to whether the Veteran's low back disorder had been aggravated during or by his military service.

The Board's request for this VHA medical expert opinion, however, started by asking whether the Veteran's low back disorder was a congenital abnormality necessarily predating his military service.  The Board therefore acknowledged the possibility that it was not, even though the majority of the evidence in the file and medical opinions obtained up to that point in time had concluded rather definitively that it was.

The designated physician, who is a Staff Physician in the Neurosurgery Section of the VA Palo Alto Health Care System, provided her response opinion in March 2013.  She explained that the Veteran's low back disorder is not a congenital abnormality.  Noting the available imaging reports, she found that the Veteran appears to have two entities:  (1) L5 pars defect (spondylolysis), without associated spondylolisthesis at L5-S1; and (2) Spondylosis or degenerative change of the lumbar spine, from L3-4 through L5-S1 and that, based on a single report, this may also include degenerative spondylolisthesis at L4-5.  She then summarized the pertinent imaging findings of record in chronological order and explained the terms and relevant anatomy to this issue.  She found that it appears as though two unfortunate misinterpretations of the imaging data occurred, including that the Veteran's pars defect was incorrectly concluded to be congenital and that his L4-5 spondylolisthesis was incorrectly concluded to be either congenital and/or associated with the L5 pars defect, which was at the wrong level to be associated with either.  She conceded that, because there was no imaging preceding the Veteran's military service, it was not possible to know whether he had spondylolysis prior to his military service.  She did however note that it was more likely than not that his symptomatic low back disorder was not related to spondylolysis (which lacked an accompanying spondylolisthesis at the L5-S1 level), but was rather related to the multiple degenerative changes observed on imaging, possibly to include degenerative spondylolisthesis at L4-5.  

She then pointed out that the Veteran may have recurrent back pain that was independent of radiographic findings.  She reiterated that his low back disorder was not a congenital abnormality and found there was no natural progression of the L5 pars defect (spondylolysis) to L5-S1 isthmic spondylolisthesis.  She found that the Veteran's degenerative lumbar spondylosis was, by far, the most likely cause of his low back disability, which was independent of his L5 pars defect and may be considered to be superimposed upon it.  Finally, she summarized that, from the Veteran's history as documented in the record and detailed in his report, his low back disorder was not a congenital abnormality and did not predate his military service.  Moreover, based on his history she considered it far more likely than not that the low back disability was caused or aggravated by his military service.

This VHA medical expert opinion is by far the most comprehensively detailed and contains the best explanation of its reasoning.  It therefore is the most probative medical opinion in the file.  Adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered the material evidence seemingly supporting the Veteran's position.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995).  This VHA medical expert's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (wherein the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file).

So, after considering the evidence of record as a whole, the Board concludes that service connection for a low back disorder is warranted.  In so concluding, the Board initially observes that there certainly is no disputing the Veteran has a low back disorder currently and indeed has for quite some time dating at least back to his time in service.  So there need only be attribution of this disability to his service to warrant the granting of service connection.  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.").

His STRs show that, while it initially appeared that upon his entry into active service a prior low back strain was noted, that primarily was by history only as the November 1967 enlistment examination report reflects normal findings of his spine upon actual clinical evaluation.  Indeed, based on the January 1968 letter from the private physician that had treated him for the injury prior to service, in 1964, that injury since had resolved with no permanent residual disability.  The Veteran was now entirely asymptomatic as concerning his low back.  And the reevaluation he apparently had in January 1968 upon receipt of this private physician's explanatory letter confirmed as much, assessing the Veteran as physically fit to serve on active duty in the military, which he did for many ensuing years.

His subsequently-dated STRs reflect that he was treated for low back pain in August 1983, diagnosed as spasm of the paraspinal musculature from L2 to L5.  Thereafter he reported having a history of recurrent back pain and arthritis, rheumatism or bursitis in the January 1988 Report of Medical History, although these reports were not further specified.  In December 1989, he complained of a back spasm dating back to 1967 and was treated for and diagnosed with lumbar spasm.  Prior to his separation from active service, a chronological record of medical care was compiled triaging his treatment for back pain during his service, specifically, in January 1968, August 1983 and December 1989.  During his June 1992 military retirement examination, clinical evaluation of his spine revealed normal findings, but the summary of defects and diagnoses included occasional low back pain, so he apparently was continuing to experience it even when separating from service.  A June 1992 Report of Medical History reflects that the he reported a history of broken bones and recurrent back pain and the evaluating service medical officer noted in his summary that the Veteran's history included occasional low back pain.

Thus, the STRs reflect the Veteran had symptoms referable to his low back on far more than just one occasion during his service, primarily in the way of chronic pain.

The post-service medical evidence of record also reflects evidence of continued complaints referable to his low back, starting rather immediately upon the conclusion of his service during his January 1993 VA compensation examination, so just some 6 to 7 months after his separation from service.  He was subsequently treated for and diagnosed with lumbar strain and rule out DJD in a May 1996 private treatment report and was thereafter continually treated by private and VA treatment providers alike for variously diagnosed low back problems.


And as the Board already acknowledged, the October 2006 and December 2010 VA opinions were inadequate as they impermissibly relied on an inaccurate factual premise.  See December 2012 Board Request for an Outside Medical Opinion to rectify this deficiency.  See also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (A medical opinion based on an inaccurate factual premise has no probative value).  The VHA medical expert opinion since obtained in March 2013 from the neurosurgeon attributes the Veteran's current low back disability to his military service, thereby providing the required nexus, i.e., linkage between this disability and his service to warrant the granting of service connection.  The Board affords this opinion a lot of probative weight, for the reasons and bases already discussed.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  The VA neurosurgeon not only reviewed the Veteran's claims file for the pertinent history of this disability dating back many years, including the STRs and post-service medical evidence, but also provided the necessary reasoning and explanatory rationale for concluding the Veteran's low back disorder is not a congenital abnormality, did not predate his military service, and is far more likely than not caused by his service.

The Veteran's lay statements and testimony regarding his low back injury prior to service versus his additional low back injuries during service, and the treatment that he has required and received for his low back disability since his service, especially in comparison to the just one isolated instance of treatment before service, are supported by the record and both competent and credible, so more probative evidence tending to support his claim.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).

Thus, as the evidence supports his claim, certainly is as supportive of his claim as it is against his claim, service connection for a low back disorder is warranted.  38 C.F.R. §§ 3.102, 3.303 (2012).  See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Hepatitis B

In statements and testimony during the pendency of this appeal, the Veteran also has maintained that his Hepatitis B is related to his military service or incepted during his service.  But unlike the claim concerning his low back disorder, the medical and other evidence is less favorable to this claim for Hepatitis B.

His STRs are completely unremarkable of any findings suggestive of Hepatitis B, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent clinical diagnosis.  The medical examinations and Reports of Medical History, including the November 1967 enlistment examination and Report of Medical History, the December 1970 ETS examination, the September 1971 enlistment examination and Report of Medical History, the December 1974 periodic examination, the June 1977 reenlistment examination and Report of Medical History, the April 1979 periodic examination and Report of Medical History, the January 1988 over 40-examination and Report of Medical History, and the June 1992 separation examination and Report of Medical History, reflect no findings or reports of Hepatitis B, risk factors or a history thereof.

During the initial VA compensation examination after service, in January 1993, there equally were no findings or reports or complaints of Hepatitis B.

But in a February 1993 letter to the Veteran from the Community Blood Bank he was advised by a physician that his donation the prior month, in January 1993, while not showing evidence suggesting he then currently had hepatitis, nonetheless had revealed that he had tested positive for the Hepatitis B Core Antibody.  This meant that he could have had hepatitis in the past, quite possibly without even knowing it.  He was assured he was probably not contagious and was almost certainly free of hepatitis, but he was advised to see his physician about this.  The letter also noted he may have contracted the virus at any time in his life, at birth, in childhood or sometime in the distant or even recent past.

Private medical records from October 1994 to April 2008 and VA outpatient treatment reports from October 2002 to March 2010 are absent of any findings related to Hepatitis B.

During his initial Travel Board hearing in August 2010, the Veteran testified that he did not have hepatitis when he went into service and that during his service he went to the Vietnam area, overseas, Honduras and Cuba.  He indicated that, after he had served overseas, he never donated his blood, however, when he got out of service he donated blood and got a letter from the Red Cross saying that sometime during his life he had contact with hepatitis.  He stated that he since had received a booster shot.  He testified that there were incidents during his military service with soldiers who had hepatitis, but they had never been tested for it.  Therefore, he believed he had contracted hepatitis while in the military.  He testified that he had 24 years of active service and that no physician had told him his hepatitis was attributable to his military service, except that he got the February 1993 letter from the blood bank informing him that he had contracted hepatitis at some unspecified time during his lifetime.  He clarified that he then currently was having testing done because he was a diabetic, but acknowledged that nothing had came up positive with respect to hepatitis.

During his January 2011 VA compensation examination, he reiterated this history of donating blood and being told his tests had screened positive for the Hepatitis B Core Antibody.  On further questioning, the examiner noted the Veteran denied any knowledge of an episode of hepatitis, although he had been deployed to many countries.  He denied any episode of hepatitis after separation from service or contact with blood or blood products.  Following diagnostic and clinical testing, the examiner indicated there was no record of prior Hepatitis B serology in the Veteran's record.  He was diagnosed with status post Hepatitis B infection with no residuals.  The examiner concluded that he could not resolve the issue without resorting to mere speculation as concerning whether the Hepatitis B infection was related to the Veteran's military activity.  The examiner explained that the current laboratory serology was negative for Hepatitis B, which implied the Veteran had successfully cleared the Hepatitis B antigen and was without current infection.  

Further, the positive Hepatitis B core IgM/IgG with a Hepatitis B surface antibody titer of 1000 confirmed he had developed an immunity to the Hepatitis B virus.  

The examiner explained these findings clearly indicated the Veteran had been exposed to the Hepatitis B virus and had a hepatitis B infection in the past, although he was without evidence of clinical hepatitis at the time of that VA compensation examination.  The examiner found the Veteran did have one potential risk factor for Hepatitis B when the documentation in his immunization record confirmed in May 1987 that he had received a 5.0 cc immunoglobin intramuscular injection prior to overseas deployment.  But the examiner added that it was his understanding that all human plasma was screened for Hepatitis B by that time and therefore this presented a very low risk for the Veteran's exposure to Hepatitis B infection.  The examiner concluded that he could not resolve the relationship to whether the infection occurred before, during or after service and military activity without mere speculation.  The examiner stated the Veteran's military activity may have placed him at risk for Hepatitis B infection, but neither the records nor history obtained during that examination had identified when infection actually had occurred.  This examiner therefore ultimately found that his evaluation of the Veteran clearly had provided no evidence of chronic liver disease or sequelae of chronic Hepatitis B infection; thus, there was no present disability, no matter when the Veteran may have had Hepatitis B.

During his additional Travel Board hearing in July 2012, the Veteran testified that he had worked in the military as a military policeman (MP) and had been involved in crowd control and had broken up fights, which he surmised had led to exposure to body fluids such as urine, saliva and blood.  He therefore cited those responsibilities in service as possible causes of his Hepatitis B infection.  He also stated he was deployed in Cuba and Honduras and was in contact with refugees and that some people had contact with blood.  He reiterated that he was only told of having Hepatitis B after service when he went to donate blood, after which, he went to see a physician, was provided a booster shot and the physician had said he was cured.  He had not given blood since that occasion, however.

So, after considering the evidence of record as a whole, the Board concludes that service connection for Hepatitis B is unwarranted simply because the Veteran has not shown he has Hepatitis B either currently or at any point since the filing of this claim (though he admittedly has had infection in years past, though exactly when remains indeterminate, including insofar as whether that was before, during or just since his military service).

The results of his January 2011 VA examination revealed clinical findings of no record of prior Hepatitis B serology in his record.  While he was diagnosed with status post Hepatitis B infection, that was predicated on him having been infected as some undetermined point in time in years past, not then currently as there were no residuals of that prior infection.  The examiner explained that his disability evaluation clearly had provided no then current evidence of chronic liver disease or sequelae of chronic Hepatitis B infection, thus, there was no present-day disability, no matter when the Veteran may have had Hepatitis B.  Accordingly, this does not constitute a presently existing ratable disability for which service connection may be granted.

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997).  The Court since has clarified that this requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 , 312 (2007).  Here, though, there simply is no showing the Veteran has a current diagnosis of Hepatitis B at any point throughout the pendency of this appeal, meaning since the filing of this claim.  In fact, the only indication of Hepatitis B was by way of the February 1993 letter, approximately nine years prior to the filing of this claim now on appeal, which merely noted he had tested positive for the Hepatitis B Core Antibody, meaning at most that he could have had hepatitis in the past, not also that he necessarily did then currently, that is, at the time of the writing of that informational letter.

In Brammer v. Derwinski, 3 Vet. App. 223  (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

In Degmetich, it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit Court observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability, namely Hepatitis B, there can be no valid claim.

To the extent the Veteran is attempting to specify that he had or currently has disability attributable to or on account of Hepatitis B, he is not competent to make this determination since it is based instead on the results of clinical testing (serology) and medical assessment, so on objective rather than subjective data.  See again 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).  Indeed, the Veteran himself has testified that he did not have a then current Hepatitis B diagnosis at the times of his hearings and that the only indication of Hepatitis B was by way of the February 1993 informational letter informing him of possibly having had Hepatitis B at some unspecified time in the past.

As pointed out earlier in this decision, during his July 2012 Travel Board hearing the Veteran was informed of the essential requirements in order to establish his entitlement to service connection.  However, as he does not have a currently diagnosed disability because of Hepatitis B, and since the medical evidence does not indicate the presence of said disability at anytime during the pendency of this appeal, there is no current disability for which service connection can be awarded.  Consequently, his claim of entitlement to service connection for Hepatitis B must be denied since the preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Right Shoulder Disorder

In statements and testimony during the pendency of this appeal, the Veteran has maintained as well that his right shoulder disorder is the result of his military service.  Specifically, he has maintained that his current right shoulder disability is due to an injury during his service in 1991 while he was playing sports, although he readily acknowledges not actually obtaining any treatment in the aftermath of that injury.  

His STRs do not mention any findings related to a right shoulder injury in service.  The medical examinations and Reports of Medical History, including the November 1967 enlistment examination and Report of Medical History, the December 1970 ETS examination, the September 1971 enlistment examination and Report of Medical History, the December 1974 periodic examination, the June 1977 reenlistment examination and Report of Medical History, the April 1979 periodic examination and Report of Medical History, the January 1988 over-40 examination and Report of Medical History, and the June 1992 separation examination and Report of Medical History, reflect no findings or report of a right shoulder injury or a history thereof.  His STRs make reference to several injuries sustained while playing sports, however, no right shoulder injury in particular was ever noted at any time in these records. 

The report of his initial VA compensation examination after service, in January 1993, equally contains no findings or reports related to a right shoulder injury or any consequent disability.

Private medical records from October 1994 to April 2008 and VA outpatient treatment reports from October 2002 to March 2010 reflect that he was initially treated by a private physician in October 1994, so the following year, for complaints of right shoulder pain.  At that time, he reported having had right shoulder pain for the past couple of months and also stated having the pain since "last year" - so at least dating back to 1993 or thereabouts.  These records reflect that he was subsequently treated for and diagnosed with right shoulder pain, right rotator cuff syndrome, right shoulder impingement syndrome, mild right shoulder DJD, right rotator cuff tear, adhesive capsulitis, chronic rotator cuff injuries and full thickness supraspinatus tear.  

In a May 1996 private medical record, he complained of having right shoulder pain for years.

In April 2003, he was provided a fee-basis VA examination by QTC Medical Services.  He reported a history of right shoulder pain in 1991, so since during his military service, while playing racquetball or softball.  He was diagnosed with chronic right shoulder strain.  An X-ray of this shoulder revealed a normal right shoulder.  

In a May 2005 VA outpatient treatment report, he again reported a history of right shoulder pain since 1991, again noting that he had sustained an injury while playing sports in the Army.  He was diagnosed with right shoulder impingement with radiographic evidence of cervical DJD without symptoms.  An X-ray of his right shoulder was noted at that time of demonstrating mild right shoulder DJD.

A July 2005 VA MRI of the right shoulder revealed full thickness supraspinatus rotator cuff tear with associated retraction with tendonopathy involving an intact supraspinatus and severe acromioclavicular osteoarthritis with reactive edema.  

A November 2005 VA outpatient treatment report reflects that the Veteran had a long history of right shoulder pain since being in the Army.  An MRI of the right shoulder was noted to reveal findings of full thickness tear of the supraspinatus tendon, type II acromion.  He was diagnosed with chronic rotator cuff injuries.  He was again diagnosed with a full-thickness supraspinatus tear in February 2006.

During an October 2006 VA examination, he reported that his ex-wife and platoon sergeant would provide documentation of a subjective history of an injury to his right shoulder secondary to playing football or sports during his active duty service.  The examiner summarized the Veteran's history of treatment in his STRs and 
post-service medical records.  An October 2006 X-ray report revealed findings of bilateral degenerative acromioclavicular joints and right proximal humeral soft tissue calcification in the region of the deltoid insertion site.  The Veteran was diagnosed with rotator cuff tear and supraspinatus tendon per MRI in 2005, without joint instability.  The examiner opined that the Veteran's right shoulder problem began post service, as evidenced by the record, and that his right shoulder condition therefore was not secondary to his active duty service.  The examiner found that the Veteran's STRs were silent with regards to a right shoulder issue.  He also noted that the Veteran's post-service records showed treatment for his right shoulder beginning in 1994, with recurrences and previous denial for service connection.  Because the Veteran's right shoulder condition occurred after service with positive treatment, the examiner disassociated it from the Veteran's service.  He also referred to an MRI showing what the present condition was.  He therefore concluded that he found no nexus or origin of the Veteran's right shoulder condition to his active duty service.  

During an August 2010 VA examination, the Veteran testified that, while in service in 1991, he injured his shoulder playing softball, at which time he was stationed in Germany.  He reported that he did not go to the infirmary and that when he got back to the United States, he had no problem with the right shoulder at all until 1994.  He also testified that he had physical therapy on the right shoulder in 2005.  

In an August 2010 lay statement, the Veteran's ex-wife reported that she was stationed with him in Germany during his active service.  She stated that he was actively playing in a sports unit and injured his right shoulder while playing softball.  She reported that he did not go to the health clinic and thought it was just a minor injury, but that it persisted.  She also stated they were reassigned to Fort Hood, Texas, until he retired from service and that he did not complain about his right shoulder during that time, which was not to say he was not still nonetheless having ongoing problems with this shoulder.

The Veteran again testified at a Travel Board hearing in July 2012, this time before the undersigned Veterans Law Judge.  The Veteran again reported injuring his right shoulder during his active service while playing softball, at which time he was stationed in Germany.  He reiterated that he did not go to sick bay in service, but only because he thought the problem eventually would go away, which unfortunately it never actually did.  He also testified to his then current right shoulder pain, symptoms and treatment.  He also reported he would have his private physician provide a statement regarding the etiology of the right shoulder disorder in support of its claimed relationship to the injury sustained in service.

To this end, in a July 2012 letter the Veteran's private treating physician indicated the Veteran had injured his left shoulder in a throwing accident in the military.  This doctor explained that, over the years, it had intermittently bothered the Veteran and he was currently unable to sleep on that side.  This private physician also noted that an MRI had shown chronic changes in the right shoulder.  So he believed it was likely the Veteran's current condition was related to his previous injury, referring to the injury in service.

So, after considering the evidence of record as a whole, the Board concludes that service connection for a right shoulder disorder is warranted.  The evidence supporting the claim is at least as probative as the evidence against the claim.  And in this circumstance, the Board must resolve this doubt in the Veteran's favor and grant his claim.  38 C.F.R. § 3.102.

Initially the Board observes that there is no disputing that a right shoulder disability currently exists and indeed has for quite some time, dating back at least to 1994 if not even earlier to around 1993.  That, then, takes the history of this disorder well back to around the time of the Veteran's service, even if not necessarily extending it back to while he was in service.

His STRs are absent of any findings, reports or complaints related to a right shoulder disability during his active service.  This includes the injury he claims to have sustained, but he has explained that he did not obtain treatment for his injury, so this means there necessarily would not be any documentary evidence in his STRs.

The Board, therefore, must look instead to the post-service medical and other evidence of record, which reflects evidence of complaints of the right shoulder pain initially in an October 1994 private medical report, so approximately a year and four months after his separation from service.  But the October 1994 private medical report also reflects that he reported a history of right shoulder pain for a couple of months and noted it had begun "last year", so meaning in 1993 or thereabouts, thus, within approximately a year of the conclusion of his service.  He subsequently was treated for and diagnosed with right shoulder disabilities of various sorts up to the present time, including right shoulder pain, right rotator cuff syndrome, right shoulder impingement syndrome, mild right shoulder DJD, right rotator cuff tear, adhesive capsulitis, chronic rotator cuff injuries, and full thickness supraspinatus tear.  

The Board also observes that the lay statement by his ex-wife and his personal lay statements and testimony regarding a right shoulder injury and pain during his active service are both competent and credible, since generally consistent with the other evidence in the file, although no actual treatment was sought until 1994.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).  

The October 2006 VA examiner opined that the Veteran's right shoulder problem began post service, as evidenced by the record, and that his right shoulder condition was not secondary to his active duty service.  But the Board also must consider the July 2012 opinion from the Veteran's private treating physician that the Veteran injured his shoulder in a throwing accident while in the military and that it was likely that injury in service could account for the Veteran's current condition.  This commenting private treating physician therefore associated the Veteran's current right shoulder disability with that injury in service, at the very least agreed this posited correlation is likely, which is sufficient to sustain the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).  Rather, this need only be an as likely as not proposition.

While the VA examiner who ultimately concluded unfavorably had access to the entire claims file, whereas the Veteran's private treating physician did not, this, alone, is not determinative or dispositive of a medical opinion's probative value, although it does have significance if evidence in the file, if considered, may have affected the underlying basis or outcome of the opinion.  In Kowalski v. Nicholson, 19 Vet. App. 171  (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  In this case, the Board has found the lay statements by the Veteran and his ex-wife competent and credible.  Therefore, the July 2012 private medical opinion relying on this proffered competent and credible lay history also derivatively has significant probative value, despite the private physician not having actually independently reviewed the claims file.


Therefore, the Board concludes that the October 2006 VA examiner's opinion, taken together or in comparison with the July 2012 private physician's opinion, the credible lay statements by the Veteran and his ex-wife regarding an in-service right shoulder injury, and the post-service medical evidence indicating the Veteran had reported right shoulder pain as far back as 1993, place the evidence in relative equipoise in regards to whether his current right shoulder disability is related or attributable to his service or dates back to his service.  And, as alluded to, the benefit of the doubt rule therefore must be applied to resolve this doubt in favor of the Veteran.  Hence, as the evidence supports the Veteran's claim, service connection for a right shoulder disability is warranted.  38 C.F.R. §§ 3.102, 3.303 (2012).  See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

The claim for service connection for a low back disorder is granted.  

The claim for service connection for Hepatitis B, however, is denied.  

But the claim for service connection for a right shoulder disorder also is granted.  




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



Department of Veterans Affairs