Citation Nr: 1319976 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-08 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which, in pertinent part, denied service connection for a low back disability. The Veteran requested to testify at a hearing before the Board, but subsequently cancelled that request in a November 2009 statement. The Board denied the claim in a November 2010 decision. However, the Board's decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in an October 2011 Order, which endorsed a joint motion for remand and remanded the matter for further action consistent with the terms of the joint motion. In the joint motion for remand, it was noted that in a November 2009 statement, the Veteran had identified treatment for low back pain in 1964 and 1965 by a Dr. Jones in Arthur, Illinois. The parties agreed that VA has a duty to attempt to obtain these records pursuant to its duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(2000). See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.102. Further, the parties concluded that VA has a duty to notify the Veteran of the need to submit any of these records. The joint motion also noted that there were conflicting statements in the Board's decision regarding whether the Veteran's lay statements asserting continued back pain since service were credible, and also that the Board did not properly account for evidence that the Veteran had a marked low back disability in 1993, which was prior to his post-service 1994 work injury. It was noted that based on these issues, the Board should provide an adequate statement of reasons and bases as to whether an examination with medical opinion was warranted. The Board remanded the claim in April 2012 so that efforts could be made to obtain hospital records from Dr. Jones. Reasonable efforts were made to obtain these records. The letter requesting records from the private hospital was returned as undeliverable. A statement from the Veteran in September 2012 notes that Douglas County Hospital, also known as Jarman Memorial Hospital, closed in June 1990 and that the physician who treated him there, Dr. Jones, had been deceased for many years. The Veteran noted that any efforts to obtain medical records would almost certainly result in failure. He also attached an article noting the hospital closure. Therefore, it appears that any further efforts to obtain the hospital records would be futile and that the RO has substantially complied with the directives of the Board's remand. In February 2013, the Board again remanded the case for medical examination and opinion, which was conducted in April 2013. The case has been returned for review by the Board. FINDINGS OF FACT The most probative (competent and credible) medical and other evidence of record indicates the Veteran's low back disability is unrelated to his military service, to include any acute injury that he experienced in service. CONCLUSION OF LAW The Veteran's low back disability was not incurred in or aggravated by his military service and osteoarthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act 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 at 38 C.F.R. § 3.159. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided letters dated in April 2005, August 2005, and December 2005 that indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The letters, however, did not provide notice pertaining to the downstream disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. Nonetheless, the Board finds that the Veteran is not prejudiced by the lack of Dingess notice because for reasons that will be explained below his claim is being denied and any questions as to the disability rating to use to rate his disability and/or the effective date of such rating is moot. Furthermore, even if the above letters did not provided adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, and the supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private treatment records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's February 2013 remand directive, he was provided VA compensation examination for medical opinion concerning whether the claimed disability is related to his military service. The findings were reported in a manner and format enabling the Board to address the elements needed to show entitlement to service connection. The Board finds that the VA examination, is more than adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its February 2013 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Certain chronic diseases (such as arthritis) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). The Veteran has the required current diagnoses to account for his complaints of low back pain. More specifically, a January 1993 private X-ray report noted scoliosis with degenerative disc disease (DDD) of the lumbar spine. In October 1994, he underwent decompressive lumbar laminectomy with medial facetectomy of the L3-L4 with partial L5 laminectomy and pedicle screw fixation. Thus, since the Veteran has established he has current disabilities affecting his low back, resolution of this appeal instead turns on whether these current disabilities are attributable to his military service - and, in particular, to injury in service that he cites as the source of this current disabilities. 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."). Regarding what occurred in service, the Veteran contends that he has a low back disability due to an injury he sustained moving ammunitions boxes while on active duty. The Veteran's STRs do not show any complaints, findings, or diagnosis regarding a low back injury. However, the report of the December 1963 examination that was conducted prior to service discharge in February 1964 included a note that said; "no heavy lifting." Otherwise, the discharge examination report indicates that his musculoskeletal system was considered normal. At the December 1963 examination, not only did the Veteran not report a history of a low back injury but he reported that he had a history of good health. That said, the Veteran's DD-214 confirms the Veteran's last duty assignment was with the 696th Ord Co (Ammo). Although there is no specific objective evidence of the Veteran's claimed in-service injury, the injury is consistent with his MOS as an ammunition specialist and the circumstances of his military service. Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis. The question then becomes whether his current low back disability is attributable to the claimed injury he experienced in service or, instead, the result of other unrelated factors. Establishing an injury in service does not obviate the need to still have medical nexus evidence linking any current disability to that injury in service. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). And, unfortunately, in this particular instance the most probative-meaning competent and credible-evidence is against this claim for a low back disability. Regarding the low back disability, a VA examination was conducted in April 2013. The VA examiner found that it was less likely than not that the low back disabilities were related to military service. This examiner found that the most likely explanation was that he had age-related osteoarthritis. She noted that STRs were negative for any complaints or treatment for low back injury. She considered the Veteran's account of an injury as credible. She also noted that there were no post service treatment records for a low back disability until the finding of osteoarthritic changes in 1993. She also noted the work-related injury that resulted in finding significant lumbar degeneration with L4-L5 disc herniation. She stated the evidence would rationally suggest that the Veteran had an acute back strain due to lifting during service, noting, that she did not find any evidence of damage to the low back during service. The physician assistant added that current medical literature would support that he had an acute back strain which is supported by his normal PUHLES rating at separation, no reported injury, and normal examination (at discharge). (The "PUHLES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of fitness for retention in the military service].) She further stated that this type of acute injury would not be expected to result in any permanent or chronic disability. She found it feasible that the Veteran may have had years of mechanical back pain, as this is one of the most common musculoskeletal complaints seen, as supported by medical literature. However, she also noted that this is rarely accompanied by any objective pathologic changes. Besides the unfavorable opinion the Board also notes that in reviewing his post-service history, there are no medical records reflecting complaints, diagnosis, or findings, related to a low back disability until 1993, so not until nearly 30 years (i.e., nearly three decades) after the Veteran's military service ended. There is certainly no evidence showing that he had osteoarthritis within a year of service discharge, let alone to a degree of 10 percent disabling. The Veteran has stated that he sought treatment for his back but the records from that treatment are no longer available due to the death of the physician. The Board notes that it cannot conclude lay evidence lacks credibility simply because it is unaccompanied by any contemporaneous medical evidence, such as treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). But that said, the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Cf. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, actual evidence that weighs against a party, must not be equated with the absence of substantive evidence). Although the April 2013 VA compensation examiner disassociated any current low back disability from the acute injury the Veteran had experienced while in the military, she readily acknowledged the Veteran had experienced the type of injury claimed in service, just ultimately concluded that the Veteran's degenerative disease and herniated disc were not a consequence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). Moreover, in regard to the Veteran statements that he has experienced back pain rather continuously since service, from the time of the injury claimed to the present, not only has to be competent but also credible. See Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). And, again, this determination is not just based on his written statements submitted at times during the course of his appeal, but also in light of and in relation to the other evidence in the file addressing this issue. The Board took into consideration not only his current arguments regarding the onset and severity of his back pain, but also his past statements regarding his back problems. The Board notes that when privately examined on March 6,1996, in reporting his medical history, the Veteran insisted that his back problems had its onset in July 1994 when he was carrying a 10-gallon bucket of ice upstairs while working. He specifically denied that he had any prior back problems. In fact he pointed out that he jogged, lifted weights, and was very athletic as far as his job and health were concerned. So, he in essence confirms that he did not have significant back problems until his injury in 1994, more than 30 years after service. This would seem to bolster the VA examiner's determination that the Veteran's in-service injury was acute in nature. To make it clear, the Board finds the Veteran's statements regarding in-service injury competent and credible. In regards to his post service history of back pain the Board finds that he is competent to report continuing pain, but not credible, as far, as diagnosing a chronic back disability and relating it to service. The VA examiner took in consideration and accepted his statements regarding continuing post service back pain, nevertheless, still found his current back condition unrelated to military service. The Board gives greater probative weight to the report and opinion of this evaluating VA physician assistant because of the consideration of the Veteran's pertinent medical and other history-as accomplished by reviewing the evidence in the claims file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value. Moreover, this examiner's opinion is mostly supported by the other evidence of record, which, as mentioned, does not show any earlier indication of osteoarthritis or DDD, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. There also is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and the Veteran's lay statements are insufficient to rebut this opinion given their lessened probative value. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER Service connection for a low back disability is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs