Citation Nr: 1319961 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-00 947 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1981 to July 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the St. Paul, Minnesota RO. The claims file is now in the jurisdiction of the Little Rock, Arkansas RO. The Veteran had requested a formal Decision Review Officer hearing at the RO, he withdrew the request in November 2009. In August 2012, the Board remanded the matters for additional evidentiary development. The issue of service connection for bilateral hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT A chronic low back disability was not manifested in service; lumbar spine arthritis was not manifested in the first year following the Veteran's discharge from active duty; and a low back disability is not shown to be related to the Veteran's service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claim. An October 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in February 2013. As will be discussed in greater detail below, the Board finds this examination to be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (including arthritis) may be service-connected on a presumptive basis if manifested in a specified period of time following a veteran's discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). 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 layperson. 38 C.F.R. § 3.159(a)(2). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran contends that he has a current chronic low back disability that was incurred in service. His STRs show that in November 1983 he was seen at an emergency room radiology department, where X-rays of the lumbosacral spine found it to be normal. The record does not include a treatment record corresponding to the X-ray studies. The STRs are otherwise silent for any complaints, findings, treatment, or diagnosis regarding the back. The record does not include a service separation examination report; there is a signed document by the Veteran to the effect that he was advised of his right to seek VA compensation (and indicating that he had filed such claim). The Veteran has reported that he did not have a separation physical examination. A claim for VA compensation benefits received in August 1984 reflects that the only disability for which compensation was sought was cold injury to both feet. The earliest documented postservice complaint pertaining to the Veteran's back was on October 2008 VA treatment, when he reported lumbar area pain at the midline with occasional radiation to both hips and both sides of the groin. He contended that the pain was related to an injury in service (from a fall in the barracks in 1982). X-rays showed the lumbosacral spine to be within normal limits. On January 2009 VA treatment, the Veteran reported that his back pain was not improved by taking naproxen. Some tenderness was noted to the lower lumbar spinous process and in the left paraspinal area. On February 2009 VA treatment, the Veteran complained of lower lumbar area pain, radiating mainly to his right lower extremity and bilaterally on occasion; it was not associated with any known trauma, but he reported slipping and falling in 1982 while coming down some stairs while in service. He reported that he spent approximately a week on bedrest at that time due to pain, with gradual resolution of the pain. He dated the onset of his lumbar symptoms to that event. X-rays showed mild lumbar levorotoscoliois apexed at T-12/L-1, and an unusually painful positional right sacroiliac joint vs. right facet degenerative joint disease symptoms. MRI showed multilevel degenerative disease of the lumbosacral spine, most pronounced at L4-L5, causing severe left neural foraminal narrowing. A bone scan showed moderate increased radiotracer uptake at L4-L5 on the right, consistent with degenerative joint disease; there was symmetrical mild increased radiotracer uptake in the sacroiliac joints without any focal changes to suggest arthrosis. The assessment on later February 2009 VA treatment was lumbar facet osteoarthritis at L4-5. In a December 2009 statement, the Veteran related that he fell down stairs at his barracks in service in Fort Stewart, Georgia and was taken to an aid station, where he was given muscle relaxers and pain relievers and placed on light duty for two weeks. He stated that he has had back problems ever since. In August 2012, the Board, noting that the alleged fall in the barracks in service is not shown in available service treatment records, remanded the matter for an examination (to secure a nexus opinion). On February 2013 VA examination, the Veteran reported he had had low back pain over the previous seven years, with the pain shooting down the legs. He reported full time pain with any activity and regular use of a brace and a cane. X-rays of the lumbosacral spine showed interval disk narrowing at L4-5. Following a physical examination which found decreased ranges of movement and pain on movement, the diagnoses included sprain, spondylosis, degenerative disc disease, stenosis, spondylolisthesis, and scoliosis. The examiner opined that it is less likely than not that the Veteran's current low back condition is secondary to, related to, or a result of his military service. The examiner explained that the Veteran had a lumbar spine X-ray in November 1983 after a fall but continued military service afterward without further complaints of low back pain until about seven years prior to the examination. The examiner also noted that after service, the Veteran worked as a plumber and drove a forklift until the mid-2000s, when he had low back pain and substance abuse issues which caused him to stop working; he had remained in substance abuse programs over time, off and on, since then and had not worked again. The Veteran has also submitted VA treatment records through November 2012 showing findings similar to those on the VA examination outlined above. A low back disability was not diagnosed in service or postservice until approximately 24 years after the Veteran's discharge from active duty. While he has reported (including in a December 2009 statement) that he has had continuous back problems since an injury in a fall in service, and in medical records since October 2008 has attributed his current back complaints to such injury, his accounts have been inconsistent and are self-serving. Furthermore, where contemporaneous records would be expected to provide support for the accounts, they do not. Consequently, the Board finds his reports of low back symptoms existing ever since an injury in service to not be credible. In that regard the Board finds particularly noteworthy that when the Veteran was seen (apparently for low back complaints) in service in 1983, no chronic low back pathology was noted (X-rays were interpreted as normal). Furthermore, the Board also finds significant that when the Veteran was being separated from service (and was advised of his right to seek VA compensation), the only disability for which he sought compensation (service connection) was residuals of a cold injury of the lower extremities. Logically, if a low back problem was manifest at the time, he would have included such disability in his claim). Additionally, the Veteran himself informed a February 2013 VA examiner that he had experienced back pain for approximately 7 years (i.e., only since about 2006, or 22 years after his separation from service). Furthermore, postservice the Veteran (per clinically recorded history) participated in strenuous employment (such as plumbing/forklift driver) which would have been inconsistent with a longstanding back problem, and he has not reported (upon VA requests, including with his VCAA-mandated notice in 2008, to identify any such treatment) seeking back treatment postservice prior to 2008, as would also be expected with a significant longstanding back problem. Consequently, service connection for a back disability on the basis that such disability became manifest in service, and persisted, is not warranted. Inasmuch as there is no evidence that lumbar arthritis was manifested in the first year following the Veteran's separation from active duty, presumptive service connection for such disability (as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) likewise is not warranted. The Board finds further that the preponderance of the evidence is against the Veteran's claim seeking service connection for a back disability. While (in light of the clinical record showing lumbosacral X-rays were taken in service) it may reasonably be conceded that the Veteran suffered some sort of back injury in service, it is not shown that such injury resulted in any chronic back pathology/disability. The negative X-ray in service weighs against a finding that there was chronic back pathology present in service, as does the fact that when the Veteran was advised at separation that he could file for VA compensation benefits, the only disability he sought to have service-connected was residuals of a cold injury of the lower extremities. The only medical evidence that directly addresses the matter of a nexus between the Veteran's current back disability and his service/injury therein is the report of the February 2013 VA examination (treatment records include the Veteran's history of injury in service and his attribution of current back disability to service, but do not include providers' opinions relating the current pathology to such injury), when the examiner opined that the Veteran's back complaints are unrelated to his service or any injury therein. The physician noted the history of the claimed and diagnosed disabilities and thoroughly explained the rationale for the opinions. The Board finds this evidence highly probative in the matter at hand (as the examiner is a medical professional qualified to provide it and supports it with explanation of rationale and citation to supporting factual data). Because there is no competent (medical opinion/treatise) evidence to the contrary, the Board finds the February 2013 VA examiner's opinion to be persuasive. In the absence of credible evidence of continuity of symptoms, the Veteran's own assertions that there is a nexus between his current back disability and an injury in service are not competent evidence. The etiology of an insidious process such as arthritis/disc pathology/stenosis is a matter beyond the capability of lay observation, but is a complex medical question that requires medical knowledge/training. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran is a layperson, and lacks the training/expertise to offer a probative opinion in the matter; he does not cite to supporting medical opinion or treatise evidence, and does not provide any adequate explanation of rationale for his theory or entitlement ( other than the allegation of continuity of symptoms, which the Board has found not credible). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. Accordingly, the appeal in the matter must be denied. ORDER Service connection for a low back disability is denied. REMAND The Board has reviewed the Veteran's claims file as well as Virtual VA (VA"s electronic data storage system). On review of the record, the Board finds that the matter of service connection for bilateral hearing loss must again be remanded for evidentiary development. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the August 2012 remand, the Board noted the Veteran's contention that his hearing acuity was damaged by his service as an infantryman, with exposure to machine guns, grenades, weapons, explosions, and tanks; he stated that he did not wear hearing protection all the time during field exercises, but did wear earplugs on the firing range. His exposure to noise trauma in service was conceded, as his service personnel records confirm that he served as an infantryman. The Board noted that audiometry on November 26, 2008 VA audiological examination did not show a hearing loss disability by VA standards (as defined in 38 C.F.R. § 3.385), and service connection was denied essentially on the basis that the claimed disability was not shown. The Board further noted that on audiological evaluation on November 7, 2007, just 19 days prior to the VA examination, speech recognition scores were 92 percent in the right ear and 88 percent in the left ear, reflecting a hearing loss disability in each ear (as defined in 38 C.F.R. § 3.385). The Board instructed on remand that the discrepancy in the findings must be reconciled. Upon review of the expanded claims file, this instruction was not fulfilled. The Veteran was afforded a VA audiological examination in February 2013, yet the examiner did not cite to either November 2008 audiogram or offer any explanation or opinion regarding the discrepancy between the two results. Virtual VA also includes no records pertinent to the remand instruction regarding the conflicting audiological reports. The Veteran is entitled to compliance with the Board's instructions. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims file to the VA audiologist who conducted the February 2013 examination of the Veteran to reconcile the conflicting reports noted above regarding whether or not he has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so its likely etiology (specifically whether it is related to his service). The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination/interview of the Veteran, the examiner must offer opinions that respond to the following: (a) Does the Veteran have a hearing loss disability as defined in 38 C.F.R. § 3.385. The explanation of rationale for the opinion should (to the extent possible) reconcile the conflicting findings in that regard made on November 7, and November 26, 2008 VA examinations. (b) If a hearing loss disability is found, the examiner should further opine whether such disability is at least as likely as not (a 50 % or better probability) related to the Veteran's acknowledged exposure to noise trauma in service (in his MOS as an infantryman). The examiner must explain the rationale for the opinion in detail; if the opinion is to the effect that the hearing loss is unrelated to service, the explanation should identify other (considered more likely) possible etiologies for the hearing loss. 2. The RO should then readjudicate the claim of service connection for bilateral hearing loss. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs