Citation Nr: 1320104 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-24 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has been previously before the Board. In an April 2010 decision, the Board denied entitlement to service connection for a lumbar spine disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2010, the Court granted a Joint Motion of the Parties and remanded the case to the Board for action consistent with the joint motion. In March 2011, the case was remanded by the Board for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT A lumbar spine disability is not etiologically related to the Veteran's active service and thoracolumbar spine arthritis was not present within one year of the Veteran's separation from active service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service and the incurrence or aggravation of thoracolumbar spine arthritis during active service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed letters in December 2005, March 2006, and October 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The March 2006 and October 2008 letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded appropriate VA examination. The Board notes that the Veteran has identified additional treatment records from various facilities and organizations that are not currently of record. In the March 2011 remand, the Board directed that the Veteran be sent a letter asking for an authorization for release of medical records for all identified treatment providers so that VA may obtain the outstanding records on his behalf. The Veteran was sent the directed letter in March 2011. The letter also informed the Veteran that while the VA is able to obtain the records on his behalf once proper authorization was received, the Veteran was also encouraged to obtain the records and submit them for review. The Veteran did not respond to the letter and no authorizations for release of medical records were received. In a February 2012 supplemental statement of the case, the Veteran was notified of his failure to respond to the March 2011 letter and that as a result, his case was be decided based on the evidence of record. As VA took appropriate action in an attempt to obtain medical records on the Veteran's behalf and the Veteran failed to provide authorization for release of medical records, the Board finds that the development conducted complies with the directives of the March 2011 remand. Therefore, VA has fulfilled its duty to assist and there is no bar to proceeding with a final decision at this time. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of that service, the arthritis shall be presumed to have been incurred or aggravated in service, even though there is no evidence of the arthritis during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has a lumbar spine disability as a result of an injury during active service. Specifically, the Veteran reported that in January 1970 while serving in Germany, he was cleaning the snow off a five ton truck when he slipped from the bumper and landed on his back. He reported that he felt immediate and severe pain and that he continued to experience back pain for the remainder of his service and following his separation from active service. A review of the STRs is negative for treatment for or a diagnosis of a lumbar spine disability while the Veteran was in active service. In January 1971, the Veteran was afforded a separation examination. At that time, the Veteran expressly denied experiencing any recurrent back pain and there is no other indication from the examination report that the Veteran reported back pain at the time of his separation. Further, the Veteran's spine was noted to be clinically normal upon examination at the time of his separation. There are multiple lay statements of record from the Veteran's spouse in which she reported that she had been living with the Veteran off base while stationed in Germany. She reported that she remembered when the Veteran injured his back and how much pain he experienced as a result. In her various statements, the Veteran's spouse also reported that the Veteran did not seek medical treatment for his back injury in service because the sergeant in charge of his unit at that time did not report the injury. Also of record is an October 2008 statement from the Veteran's mother in which she reported that while the Veteran was stationed in Germany, he had told her that he injured his back when he fell of a truck and landed on his tailbone. She reported that the Veteran has experienced back pain since that injury in active service. Also of record is an October 2008 statement from the Veteran's son, in which he reported that his father had experienced back pain for as long as he could remember and that his father had told him when he was very young that he had injured his back while serving in the Army. Also of record is an October 2008 statement from Ms. L.W. a friend of the Veteran. In her statement, Ms. L.W. reported that she had known the Veteran for approximately 10 years and that the Veteran had experienced back pain for as long as she had known him. A review of the post-service medical evidence of record shows that in December 1996, the Veteran was seen by a private physician for complaints of sudden onset of back pain following lifting over 100 pounds in the performance of his duties as a machinist while at work. In January 1997, the Veteran was afforded X-rays of his lumbar spine which revealed moderate degenerative spondylolysis and facet arthritis and degenerative disc disease (DDD) at L5-S1. In a February 1997 neurosurgical consultation, the Veteran reported that he had experienced an abrupt onset of low back pain when doing heavy lifting at work. There is no indication from the evaluation report that the Veteran reported an in-service injury at that time. In an April 1997 treatment note, the Veteran reported that he fell in 1970 while serving in the Army and sustained a low back injury, but that he had no residual problems from that reported injury. In October 1998, the Veteran was afforded a magnetic resonance imaging scan (MRI) of his lumbar spine which revealed mild disc bulging at L4-5 and severe disc narrowing at L5-S1. In January 1999, the Veteran was seen for a final evaluation of his low back. At that time, the Veteran reported that he had persistent low back pain that had never fully resolved following his December 1996 lifting injury. In March 2003, the Veteran was granted entitlement to Social Security Administration (SSA) disability benefits as a result of his lumbar spine disability. There is no indication from any of the private treatment notes of record or the SSA records that the Veteran ever reported experiencing back pain since his reported injury during active service. In February 2009, the Veteran was afforded a VA examination. At that time, the Veteran reported that he fell from a truck in 1970 and injured his back and that he has been having back problems since his separation from active service as a result. The examiner diagnosed DDD of the lumbosacral spine with left L4, L5, and S1 radiculopathy with chronic pain and sensory changes over the left lower extremity. The examiner opined that the Veteran's lumbosacral spine disability was not caused by his active service. In this regard, the examiner noted that the Veteran was never evaluated or treated for back problems while in active service and there was no mention of back problems on his January 1971 separation examination report. The examiner further noted that there was nothing in the claims file to suggest that the Veteran was ever evaluated or treated for back problems during the subsequent years until he sustained the lifting back injury while at work in December 1996. Additionally, the examiner noted that even if the Veteran's report of falling from a truck was true, there is simply no evidence of record that he experienced significant symptoms of a back disability prior to his December 1996 injury. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of back pain and lay persons are competent to report observable symptoms, such as pain. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board notes that while the Veteran and his spouse have both reported that the Veteran has experience back pain ever since falling from a truck while in active service, these statements are inconsistent with the other evidence of record. In this regard, as discussed above, there is no indication from the Veteran's STRs that he ever sustained a back injury while in active service. Additionally, at the time of his January 1971 separation examination, the Veteran expressly denied recurrent back pain. Further, there are numerous medical records on file in which the Veteran clearly reported that he sustained a sudden and abrupt onset of back pain while at work in December 1996. Throughout the course of his treatment for the 1996 back injury, the Veteran himself reported that while he did sustain a back injury during active service, he experience no residual problems from such. Additionally, there is no indication from the record that the Veteran ever filed a claim of entitlement to service connection for back pain until over 30 years following his separation from active service and there is certainly no evidence of a claim prior to the December 1996 back injury at the Veteran's place of employment. Because the statements provided by the Veteran and his spouse that he has experienced back pain ever since falling while in active service are inconsistent with all of the other evidence of record, the Board finds that the lay statements of record are simply not credible. Further, while the Veteran might sincerely believe that his low back disability is related to a fall he sustained in active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current low back disability is related to a reported fall sustained more than 30 years ago falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, there is no documented evidence of record indicating that the Veteran was diagnosed with thoracolumbar spine arthritis prior to the January 1997 private X-ray report, at which time he was noted to have DDD of the lumbar spine. That diagnosis was made more than 20 years following the Veteran's separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran was not treated for or diagnosed with a back disability while in active service. The statements provided by the Veteran and his wife in which they report that the Veteran has experienced back pain ever since his fall during active service are not credible. The Veteran sustained a low back disability while at work in December 1996, more than 20 years following his separation from active service. The Veteran was not diagnosed with thoracolumbar spine arthritis within one year of his separation from active service. The VA examiner has competently opined that the Veteran's lumbar spine disability is not related to his active service. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lumbar spine disability is not warranted. ORDER Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs