Citation Nr: 1319678 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-47 223 ) 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 J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development and readjudication. After completing the additional development, the AMC continued to deny the claim (as reflected in an April 2013 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. The Board also notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in June 2012 and April 2013 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records are unavailable. 2. Competent medical and other evidence of record reflects that the Veteran's current low back disorder, diagnosed as degenerative arthritis of the lumbar spine, with compression fracture T-12, was not present in service or within one year of his discharge from service-or, indeed until many years later. There is no competent and credible evidence relating the current low back disorder to an established event, injury, or disease during service. CONCLUSION OF LAW A low back disorder, diagnosed as degenerative arthritis of the lumbar spine, with compression fracture T-12, was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). 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 December 2008 of VA's duty to assist him in substantiating his claim and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in April 2009, nothing more is required. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of his claim. He was notified in December 2008 that his service treatment records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. A January 2009 memorandum of unavailability of Federal records is included in the record, and the Veteran was provided proper notice of the inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e). The Veteran's pertinent post-service treatment reports have been obtained and associated with the claims file and/or Virtual VA folder. VA treatment records from the Kansas City VA Medical Center (VAMC) dated from January 1, 1990 to August 21, 1995 could not be obtained in connection with this claim. An April 2013 memorandum of unavailability of Federal records is included in the record, and the Veteran was provided proper notice of the inability to obtain the records. Id. Review of the record reveals that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The United States Court of Appeals for the Federal Circuit (Federal Circuit) rejected the argument that SSA records are always relevant and that VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In the Veteran's case, there is no indication in the record that the SSA records are relevant or would aid in substantiating his claim of service connection for a low back disorder. The record contains a June 2003 computer-generated SSA inquiry showing that the Veteran is receiving payments. However, there is no entry under the "disability onset" date, and the date of initial entitlement is October 1994, when the Veteran reached the age of 62 (the minimum non-disability retirement age). Thus, the overall evidence suggests that the Veteran's receipt of SSA benefits is based on age and/or retirement, as opposed to disability. Even if it is established that the Veteran's entitlement to SSA disability compensation is for a back disorder, it does not follow that it is attributable to his military service, i.e., a service-connected disability, only instead that he is in the assessment of this other Federal agency disabled because of it. The Board is not bound by the findings of disability and/or unemployability made by other Federal agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Moreover, the SSA's favorable determination more concerns the severity of his back disorder, not instead its etiology in terms of its claimed relationship to his military service. Thus, no useful purpose would be gained in further delaying a decision in this case by requesting SSA records in this instance. See Golz, 590 F.3d at 1323. The Board is also satisfied that the AMC has substantially complied with its June 2012 remand directives as they pertain to the matter decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, a VA examination was obtained in January 2013 to assist in determining whether the Veteran's low back disorder is attributable to his military service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examination is more than adequate, as it reflects a full review of all medical evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached. There is also no medical evidence of record that suggests a nexus between any currently diagnosed back disorder and his military service; nor has the Veteran provided credible evidence of continuity of symptomatology since separation from service. Accordingly, there is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for a low back disorder which he asserts is the result of an injury sustained in service. 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; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the Veteran contends that he injured his back in service during a 20-mile march in April 1953 while carrying a 64 pound pack and a M1 Garand which weighed 81/2 pounds. He reports having back problems since that time which have gotten progressively worse. See December 2009 statement accompanying his substantive appeal. Unfortunately, the Veteran's service treatment records are not available for review, despite the RO's attempt to obtain them. Certification of their unavailability was received from NPRC. See VA Form 3101 dated in December 2008. A formal finding on the unavailability of these records was also made in a January 2009 VA Memorandum. Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed. Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). While it is unfortunate that the STRs are unavailable, the appeal must be decided upon the evidence of record. That being said, the objective evidence indicates that the Veteran's current low back disability did not manifest until many years after service. Rather, the earliest relevant medical evidence is contained in an October 1999 VA outpatient treatment record and shows the Veteran was evaluated for complaints of back pain. Radiological findings at that time reflect generalized lumbar spondylosis, narrowing of the disc space between L5-S1 due to degenerative disc disease, and compression deformity of T-12 vertebral body anteriorly. These records also note that the Veteran was retired from construction. See also VA outpatient treatment records from April 2000, November 2002, and June 2008. These records do not, in any way, suggest that the Veteran's back symptomatology originated during military service, and no physician specifically related it to service. In this case, the gap between separation from service and the first post-service indication of back complaints fails to satisfy the continuity of symptomatology required to support the claim for entitlement to service connection. There is simply no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for symptoms suggestive of a back disorder in the immediate years after his service had ended consistent with 38 C.F.R. § 3.303(b). Consideration is given to the Veteran's assertion of experiencing continuous low back symptomatology since service. However, the fact that no active low back disability was identified prior to 1999, despite his complaints of low back pain, diminishes the probative value of this assertion. Also, because the earliest recorded medical history places the presence of an actual back disorder in 1999, almost 45 years after service separation in 1955, it is impossible to grant service connection on the basis of the manifestation of a chronic disability (e.g., arthritis) within one year after separation from service. 38 C.F.R. §§ 3.307 and 3.309. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, while the above post-service medical records provide evidence of current back disorders, they do not contain the required medical nexus opinion concerning the etiology of any back disorder, to in turn relate or attribute it to the Veteran's military service. To that end, the Veteran submitted a medical opinion from a private physician, who noted that the Veteran had a previous back injury in the military in 1953 and reported having back pain. He explained that a scan of the Veteran's lumbar spine showed disc space narrowing surrounded by osteophytes and foraminal encroachment, a compression fracture at T12, and diffuse osteophyte formation with posterior joint osteoarthritis and calcification of the abdominal aorta. This physician expressed his belief that these problems "most likely refer . . . to an injury in the spring of 1953 while he [the Veteran] was in the Army." See July 2009 statement from J.E. Scowley, M.D. Although the opinion does not include any clinical rationale in its discussion to support its medical assertion, the Board found that it was sufficient to remand the claim in June 2012 for additional development. The Veteran was afforded a VA examination in January 2013. At that time, the examiner reviewed the claims file in its entirety, including imaging studies of the Veteran's thoracolumbar spine, as well as papers the Veteran "hand-carried" to the examination. In addition, the Veteran's claimed in-service back injury was noted, and the examiner took a detailed history of post-service symptoms and complaints. The examiner also noted the Veteran's history of employment as a concrete finisher and carpenter before being forced to quit in 1992 due to back pain. Following examination of the Veteran, the clinical impression was degenerative arthritis of the lumbar spine and compression fracture at T-12, which the examiner concluded were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, while the Veteran appeared competent and his history of back injury was plausible, he had worked in the construction industry since getting out of the service. This, along with advancing age, was the more likely etiology for the Veteran's arthritis, and therefore it is therefore less likely as not that his back condition is service related. Also, VA clinical records show periodic evaluation of the Veteran's continued low back pain treated conservatively with pain medicine. See Virtual VA electronic file records dated from August 1995 to January 2013. After a review of the conflicting evidence in this case, the Board finds that the 2013 VA opinion is highly probative as it is based upon a complete review of the Veteran's claims file and supported by detailed rationale. In rendering his opinion, the VA examiner considered the Veteran's self-reported history and belief that his current back disorder is the result of an in-service injury, the relevant history as contained in medical records from service onward, the results of his personal clinical evaluation, and discussed the Veteran's symptoms in the context of that history. Also, the VA opinion reflects access to the findings from the Veteran's private treating physician as well as lay statements of record. Because the VA examiner reviewed the claims file he was able to fully address the salient question as to the origin of the Veteran's back disorder and its relationship military service. The VA examiner did not explicitly acknowledge or discuss the Veteran's reports of continuous low back symptoms since service in formulating the opinion. However, as explained above, the Veteran's reports of continuity of symptoms are somewhat undermined by the fact that the more credible and probative evidence of record documents the onset of his low back disorder many years after service. Careful consideration has also been given to the opinion of the private physician as to the nature and etiology of the Veteran's back disorder. The Board is cognizant that the physician has clearly evaluated the Veteran on at least one occasion and that thus is presumably aware of his condition and the medical treatment for it. However the opinion is fairly cursory in that he did not explain what evidence in the Veteran's treatment records supported his conclusions, and did not reference any clinical data or other evidence as rationale for the opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his or her opinion affects the weight or credibility of the evidence); Bloom v. West, 12 Vet. App. 1985 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board observes that such a general statement regarding the etiology of the Veteran's back disorder does not have enough probative value to suggest a specific link between the currently diagnosed degenerative arthritis of the lumbar spine and service. The opinion is further weakened as there is no indication that the private physician reviewed any other relevant evidence in the claims file in formulating his opinion. It is true that a review of the claims failure or lack thereof does not control the probative value of a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). However, had the private physician in the present case been able to review the claims file, he would have observed that there is no indication that the Veteran had a need for continued or ongoing medical care due to any acute back symptoms in the immediate years after service. The 2013 VA medical opinion, by contrast, offers a rationale that refers to the Veteran's actual treatment records, general medical principles, and benefits from the examiner's expertise. This fact is particularly important, in the Board's judgment, as the 2013 VA examiner's references and specificity make for a more persuasive rationale. After weighing all the evidence, the Board finds greater probative value in the 2013 VA opinion, and, in light of the other evidence of record, this negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidence. In reaching this conclusion, the Board has not overlooked the Veteran's contentions or his statements to healthcare providers. His primary assertion is that his claimed back disorder had its onset during service. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Federal Circuit Court has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Thus, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 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")). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for musculoskeletal disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Although the Board recognizes the sincerity of the arguments advanced by the Veteran, his contentions as to the etiology/onset of his low back disorder are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. That is to say, degenerative arthritis of the lumbar spine with compression fracture T-12 is not the type of condition that is readily amenable to mere lay diagnosis or probative comment on their etiology. So, while the Veteran is competent to say that he has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnosis of degenerative arthritis and/or compression fractures, he is not in turn competent to ascribe these symptoms to disability related to his active duty. Therefore, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the overall evidence of record. Jandreau, supra & Buchanan, supra. For the above reasons, the Board is of the opinion that it has fully discharged its obligation to evaluate and discuss all of the evidence that may be favorable to the Veteran as mandated by O'Hare, supra, and that case's progeny. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for a low back disorder is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs