Citation Nr: 1319842 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-24 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right hip disability, to include as secondary to a lumbar spine disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to February 1962. This matter came to the Board of Veterans' Appeals (Board) on appeal from April 2009 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In July 2012, the Veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folders. In September 2012 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note 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. Any currently diagnosed low back disability, to include degenerative disc disease (DDD) of the lumbar spine, and spinal canal stenosis, did not have its onset in service or within one year thereafter and has not been etiologically linked to the Veteran's service or any incident therein. 2. Any currently diagnosed right hip disability, including total joint replacement, is attributable to the Veteran's low back disability and radiculopathy and has not been etiologically linked to his service, any incident therein or to any service-connected disabilities. CONCLUSIONS OF LAW 1. A low back disability, to include DDD and spinal stenosis, was not incurred in active military service; and cannot be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A right hip disability, to include total joint replacement, was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his/her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA must inform the claimant of any information and 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 that pertains to the claim. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 Vet. App. at 119. With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Prior to initial adjudication of the Veteran's claims, letters dated in June 2008, June 2009 and August 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, these letters also informed the Veteran of the evidence needed for the assignment of evaluations and effective dates for initial awards of service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In view of this, the Board finds that VA's duty to notify has been fully satisfied with respect to these claims. See also Duty to Assist Letters dated in July 2008, January 2009, and March 2009. VA has secured or attempted to secure all relevant documentation to the extent possible. The Board notes that the majority of the Veteran's service treatment records are not on file and the National Personnel Records Center (NPRC) has verified that there are no service treatment records available for this Veteran. August 1961 and October 1961 treatment records are the only service treatment records associated with his claims files. In cases where a veteran's service treatment records are unavailable, through no fault of the veteran, there is a "heightened duty" to assist the veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). July 2008, January 2009, and March 2009 VA letters requested the Veteran provide any service treatment records he possessed. In correspondence received in June 2009, the Veteran advised VA that he had submitted all medical evidence available to him. Moreover, in another June 2009 letter, the Veteran advised VA that he was unable to secure private treatment records for his claimed disabilities because his private physician had died and his treatment records were destroyed in a fire. Based on the foregoing, it is clear that further requests for service treatment records and the identified private treatment records would be futile. VA medical examination reports, as well as private treatment records are of record. A transcript of the Veteran's testimony at a personal hearing is also of record. The Veteran's written contentions, as well as written statements from his wife and another veteran who served with him and that have personal knowledge of either his conditions and/or of the initial back complaints, are also of record, and these records were reviewed by both the RO and the Board in connection with the Veteran's claims. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. A VA examination and a subsequent VA record review and opinion with respect to the back issue on appeal were obtained in October 2009 and February 2013. 38 C.F.R. § 3.159(c) (4). The examination report and subsequent opinion are adequate as they are predicated on an examination of the Veteran or review of the medical evidence of record and provided opinions regarding the etiology of his low back disability. The Board acknowledges that the Veteran has not had a VA examination to specifically address the etiology of his diagnosed right hip disability. He contends that his current right hip disability is either the result of an in-service injury or was caused by his back disability, for which he believes service connection should be granted. In the subsequent decision the Board determines that a basis of claim is not presented, either as raised by the Veteran or as reasonably implicated by the record, for service connection for a right hip disability on a direct basis or as secondary to a service-connected disability. 38 C.F.R. § 3.310; See Sabonis v. Brown, 6 Vet. App. 426 (1994). The decision is based on all the available evidence of record that fails to show any event, disease or injury in service, and the medically uncontested October 2009 and February 2013 VA examiner's opinions that the Veteran's low back disability is less likely a result of his service. Therefore, the Board finds that a VA examination is unnecessary with regard to the Veteran's claim for service connection for a right hip disability. 38 C.F.R. § 3.159(c)(4)(i); see McLendon, supra. As noted above, the Veteran testified at a July 2012 hearing at the RO before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veterans Law Judge who presided over the appellant's hearing effectively complied with Bryant's directives by identifying the pertinent facts and laws underlying the appeal and noting the elements that were lacking to substantiate his low back and right hip claims. She also elicited testimony from the Veteran regarding the etiology of his disabilities. The Veteran's testimony alerted the Board to the need for additional evidentiary development, which was thereafter accomplished to the extent possible pursuant to the September 2012 remand. Therefore, the above Veterans Law Judge not only succeeded in explaining the relevant issues "in terms of the scope of the claims for benefits," but also fully articulated "the outstanding issues material to substantiating the claims." See Bryant. Moreover, the Veteran has not contended, and the evidence does not otherwise show, that the undersigned Veterans Law Judge committed prejudicial error, either by failing to adequately apprise the Veteran of the issues presented or by neglecting to suggest the submission of helpful evidence that may otherwise have been overlooked. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.103(c)(2); Bryant. The Board finds that VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Analysis The Veteran contends that his currently diagnosed DDD of the lumbar spine with spinal canal stenosis and degenerative changes, is a result of an in-service back injury. He further contends that his current right hip disability, to include a total joint replacement, is either the result of an in-service injury or the result of his low back disability and service connection should be granted on a secondary basis. As noted above, when a veteran's service treatment records are unavailable, VA's duty to assist and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (see 38 U.S.C.A. §§ 71204(d)(1), 5107(b)) are heightened. McCormick, supra; O'Hare, supra. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be competent evidence of (1) the current existence of the disability for which service connection is being claimed; (2) a disease contracted or an injury suffered, in active service; and (3) a nexus or connection between the disease, or injury, in service and the current disability. In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). 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 shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. After carefully considering all of the evidence of record under the laws and regulations as set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disability. Initially, the Veteran's available service treatment records show he was treated for a lumbosacral strain in late August 1961 that was not due to an accidental incident. In October 1961, he was treated for acute myositis of the lumbosacral muscles. An October 31, 1961 progress note indicates that his back pain had subsided and that he was essentially asymptomatic. There are no other available service treatment records to indicate subsequent complaints, findings, treatment or diagnoses associated with his low back during service. Further, despite the Veteran's assertion that he sought private treatment for back complaints in 1963 within one year of his discharge from service, the objective evidence of record fails to show that he had any diagnosed degenerative changes or arthritis, prior to November 2004, more than 42 years after his discharge from service in February 1962. Consequently, as no degenerative changes were demonstrated during the first post service year, a grant of service connection on a presumptive basis is not warranted. Likewise, the October 2009 VA examiner, after reviewing the Veteran's claims files including his service treatment records and private treatment records, opined that the Veteran's low back complaints during service were likely acute and transitory, with no indication of chronicity or continuity of treatment. The examiner noted that the Veteran's work history required standing for prolonged periods of time involving complicated pediatric care and surgery. The examiner further opined that there was no indication that any current low back disability was caused by or associated with any low back disability during service as it was more likely that the Veteran's work history that required standing for prolonged periods of time was more likely a causative factor. In a subsequent February 2013 report, the same VA examiner, after further review of the Veteran's claims files, notes private treatment records indicate the Veteran initially sought treatment for low back pain in November 2004 after having fallen in March or April 2003. The examiner also notes that April 1978 private treatment records show the Veteran denied any joint pains or backache except for some left knee discomfort. The examiner again opined that the Veteran's low back disability was less likely than not incurred in or caused by his claimed in-service injury, noting that decades transpired from the date of his discharge and when he sought treatment in 2004. The examiner further opined that the in-service back complaints were remote, as well as acute and transitory in nature, as there was no evidence of chronicity or continuity in treatment. The examiner opined that the Veteran's subsequent fall history and his occupational history were more likely causative factors. There is no objective evidence of record that etiologically links the Veteran's currently diagnosed low back disability to his service or any incident therein. In this respect, although a May 2009 private orthopedic initial evaluation notes the Veteran's history of an initial onset of back pain in 1961 in service after he transferred an obese patient from a stretcher to a chair, as well as his history of chiropractic treatment for recurrence of symptoms, the evaluation also notes his history of increased lumbar pain following a fall on wet slippery concrete, and did not provide an opinion regarding the etiology of his current disability. The Veteran testified that he had sought treatment for his back pain less than a year after his discharge from service and has repeatedly submitted written statements indicating continuity of his back symptoms with intermittent chiropractic treatment. Likewise, in her written statement received in April 2009, the Veteran's wife states that she remembers his initial back injury in service and that lumbar fusion surgery was recommended but that the Veteran opted instead for private chiropractic treatment with resolution of his symptoms. Several months later, while still on active duty, his back pain was exacerbated. He again sought chiropractic treatment. She indicates that he did not have another back episode until several years later and was treated by a chiropractor who later passed away. Her statement further indicates that the Veteran's back pain again returned in 2004. In an October 2009 written statement, another veteran who served with him, indicates that while he could not recall the exact details, he was aware of the Veteran's back problems in service. The Board acknowledges its consideration of the lay evidence of record, including the Veteran's, his wife's and another veteran's reports that his back disability began in service, as well as his and his wife's statements that he experienced recurrent episodes ever since that were treated by private chiropractors until 2004. The Board further notes that the Veteran, his wife and fellow veteran are competent to report the onset of his back disability. See Layno v. Brown, 6. Vet. App. 465, 469-71 (1994) (a layperson is competent to report symptoms based on personal observation when no special knowledge or training is required). However, the Board finds that the Veteran's reported history of continuity of symptoms is not probative as it substantially conflicts with his wife's written statement that he had only 2 episodes of back pain after service, with the first episode occurring several years after service and the second episode not occurring until 2004. Indeed, the Board finds that the Veteran's statements also conflict with contemporaneous evidence, while his wife's are more consistent with such. In this respect, the Veteran reports that he sought treatment within one year of his discharge while his wife alleges he did not seek treatment until several years after discharge. An April 1978 private treatment record shows he denied having joint pains or backaches and also denied any serious injuries. A December 1981 treatment record also indicates that the Veteran's joints and spine were normal. A December 2004 chiropractic initial evaluation notes that he had last been to a chiropractor 25 years before for low back pain. Moreover, prior to the date he filed the current claim in June 2008, contemporaneous treatment records do not show any history of the Veteran's 1961 back complaints, but rather indicate an onset of symptoms following a 2003 fall. The Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336. As a finder of fact, though, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence. In this role, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton, 21 Vet. App. at 38; Caluza, 7 Vet. App. at 511. In this case, the Board finds the Veteran's report of having a continuity of back problems since service is inconsistent with the evidence of record and thus not credible. The Board acknowledges that the Veteran and the fellow service member who submitted a lay statement on the Veteran's behalf are doctors. The fellow service member noted that he served in the dental corps and it was noted that the Veteran was the base optometrist during service, and the record indicates that post service the Veteran worked in pediatric care. Nonetheless, their statements still are not credible. In his statement, the fellow service member added that he could not recall the details of the Veteran's back injury. Most importantly however, the other objective evidence of record contradicts the Veteran's assertions that he sustained chronic disability in service, or has experienced continuous symptoms since service. By contrast, the Board finds the October 2009 and February 2013 VA examiner's opinions more probative than the one offered by the Veteran and the history noted in the May 2009 private evaluation because the VA examiner's opinion is well reasoned, is based on a review of the Veteran's medical history and record and the results of a clinical evaluation, and in light of the VA examiner's expertise, based on her education, training and experience. As such, service connection must be denied. As service connection has been denied for low back disability, a claim for service connection for a right hip disability as secondary to a low back disability is barred as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426 (1994). Likewise, after reviewing all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence shows that service connection is not warranted for a right hip disability on a direct basis. Although a May 2009 private X-ray study of the right hip showed advanced degenerative changes secondary to a previous impaction fracture of the femoral head, there is no evidence of any right hip complaints, findings, treatment or diagnoses in service. Indeed there is no evidence of any right hip complaints prior to November 2004, more than 42 years after his discharge from service. In November 2004, the Veteran complained of low back pain sometimes radiating into the right hip. At the time his leg pain and weakness was of unknown etiology with possible etiologies including lumbar radiculopathy or stenosis, neurogenic claudication or diabetic neuropathic pain. During a May 2009 initial evaluation, the Veteran indicated that his left leg was problematic in 2003 or 2004, but that his pain had switched from the left leg to the right since that time. All the competent evidence of record either attributes the Veteran's current right hip disability to his low back disability or to other nonservice-connected disabilities. There is no evidence of any right hip complaints, findings, treatment or diagnoses in service, and the Veteran has not alleged having any right hip pain prior to November 2004. Nor is there any evidence that etiologically links his current right hip disability to his service or any incident therein. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right hip disability. 38 U.S.C.A. § 5107(b). In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability, to include lumbar DDD and spinal canal stenosis, is denied. Service connection for a right hip disability, to include total joint replacement, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs