Citation Nr: 1321795 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-47 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine (back disorder). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1946 to October 1947 and from September 1950 to November 1951. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2013, the Veteran, sitting at the RO, testified during a hearing conducted via video conference with the undersigned Veterans Law Judge. In a March 2013 decision, the Board granted the Veteran's claims for service connection for bilateral hearing loss and tinnitus. At that time, the Board remanded his claim for service connection for a back disorder to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. Please note 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). FINDING OF FACT The evidence of record preponderates against a finding that a back disorder, currently diagnosed as degenerative disc disease, had its onset in or is otherwise related to the Veteran's active service; degenerative disc disease of the lumbar spine was not manifested to a compensable degree within one year of discharge from active service. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the 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 hearing, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty or a service-connected disability would be helpful in establishing the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in February 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The February 2008 letter provided notice as to how VA assigns an appropriate disability rating or effective date, curing any timing defect. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Some of the appellant's service treatment records are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC), according to a June 2008 record from the NPRC. An August 2008 RO file memorandum detailed VA's efforts to obtain the Veteran's service treatment records and concluded that these records were unavailable. The Board agrees. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of his claim, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule. Russo v. Brown, 9 Vet. App. 46 (1996). While it is unfortunate that some of the Veteran's service treatment records are unavailable, the appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened duty in mind. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file reveals VA medical records, dated from February to September 2012, also considered by the Board regarding the claim for service connection for a back disorder. In March 2013, the Board remanded the Veteran's case to the RO for further development that included obtaining records regarding treatment by M.B., M.D., and recent VA medical records, and scheduling him for a VA examination. There has been substantial compliance with the Board's 2013 remand as he was scheduled for VA examination in May 2013 and VA medical records, dated to September 2012, were obtained. The Veteran did not respond to the AMC's April 2013 letter requesting that he provide signed authorization for VA to obtain his medical records from Dr. M.B. The Board finds that the May 2013 examination report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). In sum, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused 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 the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background and Legal Analysis The Board has thoroughly reviewed the record in conjunction with this case, including the Veteran's service treatment records, VA and non-VA medical records and examination reports, dated from 2008 to 2013, and his written statements and oral testimony in support of his claim. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of orthopedic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In written statements and oral testimony in support of his claim, the Veteran asserts that he has a back disorder due to an injury incurred in active service. During his February 2013 Board hearing, the Veteran testified that, in June or July 1951, while on maneuvers at Fort Bragg, North Carolina, he injured his back while lifting five gallon gas cans onto the tailgate of a heavy truck. See Board hearing transcript at page 3. He felt low back pain that caused him to drop to his knees and was taken by jeep to a medical battalion. Id. The Veteran was told that he sprained his back and treatment involved taping it from his shoulder blades down. Id. Thereafter, the Veteran said that he periodically experienced episodes of back pain that worsened as he aged and made it difficult for him to walk while bird hunting. Id. at 4. He had constant back pain during the last twenty years. Id. at 6. The Veteran's wife stated that they married in 1962 and she noticed that he had back pain since that time. Id. at 8-9. Post service, the Veteran worked as a truck driver. Id. at 15. Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board finds that service connection is not warranted. As noted, some of the Veteran's service treatment records are unavailable and presumed destroyed in a fire. When examined for separation in November 1947, his musculoskeletal system and spine were normal and a back disorder was not noted. Morning reports dated, on June 19 and June 28, 1951, do not discuss complaints of, or treatment for, a back disorder. When examined for separation from service in October 1951, the Veteran's musculoskeletal system and spine were normal and a back disorder was not noted. Following service, a March 17, 2008 private treatment record from Dr. M.B. indicates that the Veteran was seen for complaints of low back pain. It was noted that "[t]he details of his past medical and surgical history are on the spine form which is signed and dated." That form is not included among the records from Dr. M.B. The diagnosis was lumbar degenerative disc diseases possible spine stenosis. According to a record dated the following day, results of x-rays of the Veteran's lumbar spine revealed diffuse degenerative disease with no spondylolisthesis or scoliosis. A magnetic resonance image (MRI) showed mild to moderate central spinal stenosis. In an April 2008 signed statement, R.W., the Veteran's friend, said that they frequently hunted together in the late 1960s and early 1970s and he saw the Veteran fall to his knees for no apparent reason. It appeared that the Veteran's legs gave out. The Veteran shared with R.W. his belief that such falls were due to an accident in service. VA treatment records, dated from February to September 2012, include complaints of back pain. An August 2012 VA primary care record indicates that he reported having back pain since the early 1950s. Results of x-rays of his lumbar spine taken at the time revealed multi-level advanced degenerative changes with advanced facet joint arthropathy and moderate degenerative joint disease in the spinous process. In May 2013, the Veteran underwent VA examination. According to the examination report, the physician-examiner reviewed the Veteran's medical records and performed a clinical evaluation. The Veteran gave a history of spraining his back in military service in the 1950s when he picked up a gas can that caused an acute onset of back pain. He was assessed and treated with rest and prescribed medication. The Veteran was placed on a limited duty profile and then returned to full duty. He further reported that after service he had various back injuries associated with activities of daily living that were treated by physicians. The Veteran developed progressive symtoms that became a chronic condition approximately 25 years ago. In the 2000s, he had a magnetic resonance image (MRI) that showed degenerative disc disease. Upon clinical evaluation, the diagnosis was degenerative disc disease of the lumbar spine. In the VA examiner's opinion, the Veteran's current low back condition was "less likely as not" (less than a 50 percent likelihood) related to, aggravated or caused by, or had its onset during, his time in active service. The VA examiner noted that, based on the Veteran's credible statement, the injury he had in service was a back sprain. The examiner explained that this was a muscle or ligament condition and was not the same as a degenerative disc or arthritis condition. According to the VA examiner, "[o]one back sprain does not cause arthritis." Further, the VA examiner stated that, based on the medical evidence, and the nature of the Veteran's condition, his back sprain did not have residuals. Specifically, the nature of the injury was insufficient to cause joint, bone, or disc injury. This was confirmed by the nonfocal nature of his lumbar spine imaging. The x-rays did not show any residuals from a specific trauma but, rather, showed an overall degeneration of the spine that was seen in arthritis and degenerative disc disease. Additionally, the examiner observed that the Veteran's statements described the "classic progression of arthritis." He continued to have repetitive episodes of sprains and injuries with his activities of daily living over the years. This spine condition required aging and accumulation of repetitive motion injuries over time. The extent of his spine condition was consistent with his age. The VA examiner provided references to relevant medical literature. Since the 2013 VA examiner's opinion was based on a review of the pertinent history, and was supported by a detailed rationale, it provides compelling evidence against the Veteran's claim. The VA examiner did not only provide data and conclusions, but also provided a clear and reasoned analysis that the court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). There is no medical opinion of record to refute the May 2013 VA examiner's opinion. Here, the Veteran reported treatment for a back sprain during military service in approximately mid 1951. The Board has no reason to doubt the Veteran's account of his injury in service. Nevertheless, when he was evaluated for discharge in October 1951, no problems with the spine were identified. The record unequivocally shows that there was no medical evidence of arthritis, or any other diagnosed disability, of the lumbar spine, within one year after service. The first documented evidence of any type of lumbar spine problem after service is from the private treatment record dated in 2008 that reflects the Veteran's history of back pain, over 55 years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In short, no medical opinion or other medical evidence relating the Veteran's back disorder to service or any incident of service has been presented. In adjudicating the claim on appeal, the Board has also considered the Veteran's contention that a relationship exists between his current back disorder, and military service. In considering this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Veteran is competent to describe his observable symptoms, such as back pain. Hence, his report that the back pain observed in service was the same as that observed after service, is competent. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. The Veteran is not competent to say, however, that the back pain in service was actually the same condition that has been identified currently. While the Veteran might sincerely believe that the in-service and post-service conditions appeared the same, the May 2013 VA examiner explained that the Veteran experienced a back pain in service that was a muscle or ligament condition and was not the same as a degenerative disc or arthritis condition. The examiner stated that one back sprain did not cause arthritis. Again, while the Veteran offered credible testimony regarding his treatment in service for a back sprain, a spine abnormality was not noted during service examination for discharge in October 1951. The post service records show that, while the Veteran reported back pain since the early 1950s, the first medical record of treatment for that disorder is from 2008, nearly 55 years after his discharge from active service. See Maxson v. Gober, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. at 354. The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology. However, to the extent that he is claiming continuity of back symptoms since service, he is not a reliable historian. He made no mention of his back problems in 1951 during his service examination for separation, and examination of his spine at that time was normal. He has not explained why he failed to mention pertinent difficulty when examined pursuant to service requirements. Therefore, the Board does not find that there is credible evidence of continuity of symptomatology present in this case. Moreover, the Veteran is not competent to state that he has degenerative disc disease of the lumbar spine or another orthopedic disorder. The clinical pathology of spine disorders is not readily recognizable by a layman, such as varicose veins or acne. See Jandreau v. Nicholson. Even medical professionals rely on laboratory test results, x-rays, and other diagnostic tools to diagnose spine disorders, including degenerative disc disease. Further, the May 2013 VA examiner, who reviewed the Veteran's in-service treatment records and his post service medical records, and performed a clinical evaluation, concluded that his degenerative disc disease of the lumbar spine was less likely than not due to his military service, and most likely due to the an overall degeneration process. The Veteran's contentions are outweighed by the medical evidence and opinion of the May 2013 VA examiner that reflects that he did not have a lumbar spine disorder related to his active military service. The Veteran's contentions as to etiology are not deemed competent and thus are not probative. Here, the Board is left with just one report of a back sprain in service, no reported complaints or findings of a diagnosed back disorder after service until 2008, and a VA medical opinion to the effect that the Veteran did not have a lumbar spine disorder due to his active military service. The questions involved regarding causation are medical in nature. As discussed above, the medical opinion of the May 2013 VA examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative. In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for degenerative disc disease of the lumbar spine, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs