Citation Nr: 1320676 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-48 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a back disability, to include as secondary to a service connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from August 1980 to August 1984. The Veteran also had service with a reserve component from September 1984 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2012, the Veteran testified by videoconference at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In May 2012 and September 2012, the Board remanded the appeal for additional development. 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). In March 2013, VA treatment records were added to the virtual VA claims file. In June 2013, the Veteran's representative waived agency of original jurisdiction (AOJ) of this evidence. See 38 C.F.R. § 20.1304 (2012). Therefore, the Board may adjudicate the appeal without first remanding it for the AOJ review. FINDING OF FACT The preponderance of the evidence shows that the Veteran back disability was not caused or aggravated by service; arthritis of the back did not manifest itself to a compensable degree in the first post-service year. CONCLUSION OF LAW A back disability was not incurred in or aggravated by military service, may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101, 106, 1101, 1112, 1113, 1116, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that a letter dated in October 2009, before the February 2010 rating decision, along with letters dated in June 2010, June 2012, and October 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess as well as in substantial compliance with the Board's September 2012 remand request. While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the February 2010 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the February 2013 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error here 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, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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, during the April 2012 Board hearing, the Veteran was assisted at the hearing by his accredited representative and the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether his current disability is related to his service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in Remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service treatment records from the Portland and Minneapolis VA Medical Centers in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this regard, in October 2009, February 2010, and September 2010 the National Personnel Records Center (NPRC) notified the RO that it did not have any other service treatment records of the Veteran including in-patient clinical records from Fort Benning and Fort Jackson. Similarly, in June 2010 the Adjutant General's Office notified the RO that it did not have any other reserve component treatment records of the Veteran. Likewise, in December 2012 the Adjutant General's Office, after again being asked for any outstanding copies of the Veteran's records, mailed the RO duplicate copies of the medical records it had already provided VA as well as a copy of his personnel record in substantial compliance with the Board's September 2012 remand request. See Stegall; D'Aries; Dyment. In November 2009 and November 2010, the RO made formal findings that no other service records of the Veteran were available. Also in November 2009 and in November 2010, the Veteran was notified of this finding. In May 2010, the Veteran also notified the RO that he did not have copies of any of his service treatment records. Where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The record shows that the Veteran was provided with a VA examination in July 2012 and an addendum to that examination was obtained in October 2012. Moreover, the Board finds that the VA examiner's opinion, when combined with the addendum, is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because after a review of the record on appeal, after taking a detailed medical history from the claimant, and/or after an examination, the examiner provided an opinion as to the origins of his back disability which opinion was based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran contends that he has a back disability directly due to his military service. In the alternative, the Veteran asserts that he has back disability due to his depression. Specifically, during an Informal RO Conference in July 2010, the Veteran reported that he had been treated with bed rest and medication in service following a fall and that he was also treated by a private doctor shortly after service. He also reported that he received worker's compensation for his 1998 post-service work-related injury, but that he did not have any of the paperwork. Similarly, at a hearing held in April 2012, the Veteran testified that in 1980, during basic training, he fell from a vertical rope that was about 20 feet off the ground. He stated that he fell about 15 feet, landed flat on his back, and also hit the back of his head. He recalled waking up in the hospital afterward and spending two to three days there. He also testified that he continued to have a waxing and waning of back pain and his military occupational specialty of a cook aggravated his symptoms as he had to stand for long periods. He recalled that he visited sick call when the pain became too severe. He also stated that he did not have an exit physical prior to separation. He also testified that his back pain had continued intermittently since 1980, although he also experienced an employment-related injury in the late 1990's. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1131. 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 such as arthritis. 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. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). As to a current disability, post-service treatment records document the Veteran's complaints and/or treatment for back disabilities variously diagnosed as lumbar strain, low back strain with muscle spasm, lumbar degenerative disc disease, status post L4-S1 fusion, and disc bulging. See VA treatment records dated in August 2009 and June 2010; lumbar spine X-ray dated in June 2010; lumbar spine magnetic resonance imaging evaluation (MRI) dated in August 2011; VA examination dated in July 2012. As to service incurrence under 38 C.F.R. § 3.303(a), the Veteran's DD Form 214 reflects his occupational specialty as food service. Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of a back disability (i.e., pain and limitation of motion) while on active duty since his alleged fall which pain periodically became worse due to his having to stand for long periods of time as a cook even when neither the fall or the back treatment is documented in his medical records because these events and symptoms come to him through his own senses. See Davidson. However, the Veteran's available service treatment records are negative for symptoms off or a diagnosis of a back disability. Moreover, while the Veteran as a lay person is competent to report on his symptoms of a back disability because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not credible because service treatment records are negative for a back injury nor a history of or a diagnosis of a back disability. Accordingly, the Board finds that the most competent and credible evidence does not show that the Veteran had a back injury or disability while on active duty. See Davidson. Therefore, the Board finds that entitlement to service connection for a back disability must be denied based on in-service incurrence despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309(a), the post-service record does not contain any evidence of the Veteran having arthritis of the back within one year of separation from active duty in 1984. Accordingly, entitlement to service connection for a back disability must be denied on a presumptive basis. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1984 and the first complaints and treatment for a back problems in 1998 to be compelling evidence against finding continuity. The Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with pain and limitation of motion of his back since service. See Davidson. However, upon review of the claims file, the Board finds that any claim by the Veteran regarding his having his current back disability since service are not credible. Such claims are contrary to what is found in the available service medical records which are negative for either a back injury or a back disability. Likewise, the Board finds that the claims by the Veteran are contrary to what is found in the post-service medical records including the September 1984 enlistment examination for the National Guard in which he did not report a history of back problems and which, on examination, it was specifically opined that his spine was normal. It is also contrary to the Veteran's self reported medical history as found in his treatment records. In this regard, in an August 2009 VA treatment record the Veteran only complained of having a problem with low back pain for a couple of weeks. Moreover, in a September 2009 VA treatment record he reported that he had only had low back pain since he injured his back at work in 1998 and thereafter had surgery in 1999. In these circumstances, the Board gives more credence and weight to the negative service treatment records and normal reserve component enlistment examination conducted just one month after his separation from active duty as well as the Veteran's own statements to his treating doctors that he only started having back problems after his post-service work injury in 1998 than his latter self-interested claims to VA regarding his back problem having started while on active duty. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, because the most credible evidence does not show complaints, diagnoses, and treatment for back disability until after his separation from active duty, the Board finds that entitlement to service connection for a back disability based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(b). The Board will next address service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d) and service incurrence under 38 U.S.C.A. §§ 101(24), 106, 1131 due to an injury while on ACDUTRA or INACDUTRA. In this regard, the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current back disability and a disease or injury of service origin. See 38 U.S.C.A. §§ 101(24), 106, 1131; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the July 2012 VA examiner, after a review of the record on appeal and an examination of the Veteran, opined that it is less likely than not that his current back disability is a result of or aggravation of an injury or injuries he sustained during military service because while the appellant reported having several back injuries while on active duty there is no medical evidence to suggest that these in-service injuries "resulted in a diagnosable ongoing, chronic" back disability. It was also opined that, while on active duty he more likely as not sustained lumbar strains to the back, lumbar strains are self limiting conditions which do not result in an ongoing, chronic condition. Moreover, the examiner noted that the Veteran clearly had a significant work-related injury to the low back, years after military service, requiring surgical fusion and this injury accounts for his current back disability. Furthermore, in spite of the Veteran's reported claims of significant in-service back problems, the examiner observed that he was still able to perform his regular duties as a cook with prolonged standing and complete his four years of military service time. Lastly, the examiner obtained that the Veteran's self-reported post-service employment in printing, cleaning, carpentry, plumbing, and landscaping put excessive forces on the lumbar spine which more likely as not contributed to his current back disability. In the October 2012 addendum, the examiner reaffirmed his July 2012 opinion. These opinions are not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As to the lay assertions that the claimant's back disability was caused by service, the Board finds the VA examiner's medical opinion more probative than his lay account in light of the examiner's review of the claims folder, medical knowledge and training and in light of the explanation offered in support of the assessment. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Moreover, the Board finds that diagnosing a chronic back disability requires special medical training that lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence. See Jandreau. Therefore, the Board finds that the most competent and credible evidence of record does not show that the Veteran's current back disability was caused by his military service. Accordingly, the Board finds that entitlement to service connection for a back disability is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. §§ 101(24), 106, 1131; 38 C.F.R. § 3.303(d). As for secondary service connection under 38 C.F.R. § 3.310, the Veteran maintains that his back disability was caused or aggravated by his depression. However, the record shows that the RO denied service connection for depression in a February 2013 rating decision. In fact, service connection is in effect only for tinnitus. The Board notes that a condition president for establishing secondary service connection is the Veteran already being service connected for the disability that is causing or aggravating the new disability. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310; Allen. Therefore, because the Veteran is not service connected for depression the Board finds that service connection for a back disability due to depression must be denied. Accordingly, the Board must conclude that entitlement to service connection for a back disability must be denied on a direct and secondary basis because the weight of the evidence is against the claim. See 38 U.S.C.A. §§ 101(24), 106, 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most competent and credible evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs