Citation Nr: 1320401 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-10 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a lumbar spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which reopened service connection for a lumbar spine disorder, but denied service connection on the merits. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system includes documents that relate to the present appeal; these have been considered as part of the present appeal. FINDINGS OF FACT 1. A June 2005 rating decision denied service connection for a lumbar spine disorder; the Veteran did not file a timely Notice of Disagreement following the June 2005 rating decision. 2. The evidence associated with the claims file subsequent to the June 2005 rating decision relates to unestablished facts that are necessary to substantiate the Veteran's service connection claim regarding the presence of a current diagnosed disability and the etiological relationship of that disability to service. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran did not engage in combat with the enemy during service. 4. The Veteran sustained a low back injury of lumbar-spine muscle sprain during service. 5. The Veteran has a currently diagnosed lumbar spine disability of degenerative disc disease of the lumbar spine with spondylosis and spondylolisthesis of L5 on S1. 6. The current lumbar spine disability is not etiologically related to service, to include a lumbar spine muscle strain during service. CONCLUSIONS OF LAW 1. The June 2005 rating decision denying service connection for a lumbar spine disorder became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. Evidence received since the June 2005 rating decision is new and material to reopen a claim of service connection for a lumbar spine disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in November 2008, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case in the November 2008 letter, the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the VA Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Such a letter was sent to the Veteran in February 2008, thus meeting the requirements of notice as related to Kent. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records, records of VA examination and treatment, as well as records from the Social Security Administration (SSA) have been obtained. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In testimony before a VA Decision Review Officer in August 2011, the Veteran indicated that he had been treated at a VA medical facility in New York in 1979, at a VA facility in Texas in 1980 or 1981, again in 1984 or 1985, and had been treated by private doctors. VA attempted to acquire records of treatment in New York and Texas from the purported periods, however no such records were found. With regard to private treatment records, the Veteran was told of the need for such records during the August 2011 hearing, and he indicated that he would supply the records to VA. VA has not received such records or authorizations from the Veteran to seek them out. VA's duty to assist in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. Given the Veteran's actions, no additional duty with regard to obtaining private treatment records is owed. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). With regard to the August 2011 hearing, the DRO presiding over the hearing clarified the issue on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of his claim. These actions supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103 (2012). The Veteran was afforded a VA examination in September 2008, during which the examiner conducted a physical examination of the Veteran, was provided the Veteran's claims file for review, took down the Veteran's history, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record, including testimony provided at an August 2011 hearing before a DRO. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Reopening Service Connection for a Lumbar Spine Disorder Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen service connection for a lumbar spine disability. In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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, 253 (1999). In a June 2005 rating decision, the RO denied a claim for service connection for a lumbar spine injury. The RO based the denial on a lack of evidence showing that an in-service lumbosacral strain had become chronic during service, that the Veteran had experienced unremitting symptoms since service separation, and a lack of evidence otherwise etiologically connecting the Veteran's in-service lumbosacral strain with a current lumbar spine disorder. The Veteran did not submit a timely Notice of Disagreement. Thus, the June 2005 rating decision denying service connection for a lumbar spine injury became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the June 2005 rating decision, several of the Veteran's statements have been associated with the record that include his August 2011 testimony to a DRO in which he indicated that immediately following service separation he sought treatment for his low back at a VA medical facility in New York. The Veteran further indicated that since separating from service he has had unremitting low back symptoms which have continued until the present day. The Veteran is competent to report of observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus the foregoing testimony regarding unremitting low back symptomatology, to the extent that such symptoms are observable such as pain, is competent testimony. Id. In determining whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 513. When credibility is presumed, as is required when determining solely whether to reopen a previously denied claim, the Veteran's August 2011 testimony before a DRO shows evidence of unremitting symptomatology and ongoing medical treatment since service. As this represents evidence not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen service connection for a lumbar spine disorder. Service Connection for a Lumbar Spine Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Diagnoses associated with the Veteran's low back have included spondylolisthesis, spondylosis, degenerative disc disease, and "degenerative changes" of the lumbosacral spine. However, none of these diagnosed disorders is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With regard to the diagnosis of "degenerative changes," in the context of the evidence where such a diagnosis appears, "degenerative changes" reference the Veteran's degenerative disc disease. While degenerative joint disease is a form of arthritis, Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992), degenerative disc disease is not. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that 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. The Veteran contends to have injured his low back during active service. Specifically, he stated at the August 2011 hearing before a DRO that his low back was injured during service at Fort Bragg, North Carolina. He reported that while driving a jeep on guard duty at night, he swerved to avoid an animal and was thrown from the vehicle. The Board finds that the Veteran did not engage in combat with the enemy during service. The Veteran does not allege that the claimed injury occurred as a result of combat against enemy forces nor does he allege that he ever had such combat. Furthermore, a review of the official military documentation contained in the claims file does not otherwise indicate that the Veteran engaged in combat against enemy forces as contemplated by VA laws and regulations. For these reasons the weight of the evidence demonstrates that the Veteran did not "engage in combat" with the enemy during service, and the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. The Board finds that the Veteran's low back was injured in service. Service treatment records reflect that on enlistment examination in August 1976, the Veteran's spine was normal and he affirmatively denied recurrent back pain. In January 1978 the Veteran reported having fallen out of a jeep. He was without apparent muscle spasms and range of motion was good. 10 days later, the Veteran endorsed a back ache without relief from medication. Examination revealed muscle tension at the base of the back on both sides of the lower spinal column. The assessment included a possible muscle sprain. Several days later, the Veteran complained of muscle spasms on the right side of his low back. Following the in-service injury and complaints of back-related symptomatology in January 1978, service treatment records do not reflect any ongoing complaints regarding the back. On service separation examination in April 1979, the Veteran's spine was normal and he was reportedly "in good health." The Board finds that the Veteran has a currently diagnosed lumbar spine disability. In September 2008, the Veteran underwent a VA examination during which he endorsed symptoms including significant lower back pain as well as muscle spasms. On physical examination, there was no indication of lower extremity radiculopathy or sensory deprivation and Achilles tendon deep tendon reflexes were normal. X-ray imaging of the lumbar spine revealed decreased L5-S1 intervertebral disc space, spondylolysis of the L5 pars interarticularis and spondylolisthesis of L5 on S1. The impression also included "degenerative changes at L5-S1." The examiner's final assessment was degenerative disc disease of the lumbar spine with spondylosis and spondylolisthesis of L5 on S1. Additional treatment records throughout the claims file confirm these diagnoses including a June 2006 x-ray which showed left pars at L5 indicating spondylitis as well as grade 1 spondylolisthesis of the L5 on S1. June 2009 and January 2010 x-ray imaging studies revealed persistent levoscoliosis, slight increase in the retrolisthesis S1 on L5. The June 2009 study also showed degenerative changes, and an increase in the disc space narrowing at L3-4 and L5-S1. The Board finds that the weight of the evidence demonstrates that the Veteran's current lumbar spine disability is not etiologically related to service. Following service separation, the Veteran was seen at a VA medical facility in Houston, Texas beginning in 1998. In February 2001 he reported left hip pain, which was similar to hip pain he had experienced in 1998; however, not until 2004 did he seek treatment for back pain. In November 2004, the Veteran endorsed a history of back pain dating back a few years, but having gotten worse in the prior month. He denied any history of trauma, and an examination revealed that his back was tender to palpation. In June 2006, the Veteran reported to a VA medical professional a 20 year history of low back pain. In April 2007, the Veteran indicted a history of lower back pain, muscle spasms, and non-radiating pian for "15 or more" years. On September 2008 VA examination, the examiner noted that the Veteran did not receive on-going treatment in service following his initial injury in 1978, and did not complain of back symptomatology until 25 years after separation from service. Additionally, degenerative changes appeared throughout the Veteran's spine, not only in the low back where the Veteran had in-service complaints. Based on the lack of complaints until many years after his in-service injury, combined with the minor nature of the initial injury, the VA examiner opined that the Veteran's current lumbar spine disorder was not related to in-service complaints referable to the low back. In June 2009, the Veteran told a treating VA medical professional that his back pain had been present for 30 years, but had worsened in the preceding week. During an SSA-ordered medical examination in August 2009, the Veteran stated the he had experienced back pain for approximately 15 years following being thrown from a jeep in service. The Veteran is competent to report symptoms such as back pain and to report that such pain has been unremitting since he was thrown from a jeep in a motor vehicle accident in service. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). However, the Veteran's inconstant statements when giving a history of onset of symptomatology reduces the probative value of his otherwise competent statements. While the Veteran is competent to report on observable symptoms, determining the cause of the Veteran's current low back pain is a more complicated matter and the Veteran has not been shown to possess the requisite medical expertise to evaluate and determine the cause of such pain. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly the Veteran's statements averring to the etiology of any current symptomatology are not competent. Of greater probative value than the Veteran's statements regarding etiology is the well-reasoned opinion of the VA examiner in 2008. The examiner's opinion was based, in large part, on the lack of treatment or complains referable to the back between separation from service in 1979 and treatment records beginning in 2004. The amount of time that elapsed between military service and first post-service evidence of complaint or treatment can be considered as evidence against the claim, it simply cannot be the only reason for a finding against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the examiner also pointed to the fact that degenerative changes manifest throughout the Veteran's spine, not only in the area of the low back where the Veteran had in-service complaints, and that the Veteran's initial in-service injury was a minor one. With regard to the Veteran's lack of treatment as evidence of a lack of symptoms prior to 2004, the Board finds that the probative weight of the evidence shows that symptoms did not manifest until many years after service. The Veteran has endorsed a long standing history of low back pain, including as far back as his in-service injury. However, in addition to reports of a 30-year history of low back pain, treatment records also include inconsistent reports of a 15 or 20 year history and reports that symptoms began only a few years ago. All of these inconsistent reports reflect a post-service onset of the current symptomatology and resulting current diagnosis. The Veteran did not begin to endorse low back pain until 2004, the same year he filed his claim of service connection for a low back disorder. The Board is of course cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits, and the personal interest a claimant has in his own case may be considered when weighing his credibility. However, the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Nonetheless, the Veteran previously filed a claim for compensation in September 1979 when he sought service connection for a hernia. In his December 2004 claim of service connection for a low back disorder, the Veteran indicated that his disability began in 1977, and that he had been continuously treated from 1997 until the present. Had the Veteran been experiencing low back symptomatology in 1979 when he filed for service connection of a hernia, it is reasonable to assume that he would also have sought service connection for a low back disability. The Veteran's silence when otherwise affirmatively speaking constitutes negative evidence. Furthermore, the Board finds the lack of in-service complaints following the Veteran's jeep accident to be especially probative because statements made to a medical professional during active service were made for treatment purposes; an individual has a great incentive to provide an accurate medical history to medical professionals in order to receive proper treatment. Based on the foregoing, the Board finds that the Veteran's normal spine at separation from service, combined with the 25 year gap between separation from service and the first recorded complaint of low back symptomatology are more probative than the Veteran's later history, made for compensation purposes, alleging continuous symptoms beginning in service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the appeal to reopen service connection for a lumbar spine disorder is granted. Service connection for a lumbar spine disorder is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs