Citation Nr: 1322403 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 08-12 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION 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). The Veteran had active military service from February 1960 to April 1962. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Wichita, Kansas, that denied the benefit sought on appeal. In June 2009, the Veteran testified at a Travel Board hearing at the RO before a Veterans Law Judge (VLJ). Then, in a January 2012 letter, the Board advised the Veteran that the VLJ who presided at his June 2009 Board hearing was no longer employed at the Board and offered him another hearing before the VLJ who would decide his appeal. In February 2012, the Veteran responded that he desired another Board hearing. In March 2012, the Board remanded his case to the RO to schedule another hearing, which was held in June 2012 before the undersigned VLJ. Transcripts of both hearings are of record and have been reviewed. In September 2012, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. The Board remanded the case again in March 2013 to complete development not done pursuant to the September 2012 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting, inter alia, that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his paper claims file. The Board has reviewed the contents of the Virtual file, as well as the physical file, in considering the claim on appeal. FINDINGS OF FACT 1. The AMC completed the development directed in the March 2013 remand, to include completion of the development directed in the September 2012 remand. 2. The preponderance of the evidence of record shows the Veteran's low back disorder did not have its clinical onset in active service or within one year of active service, nor is it causally related to his active service. CONCLUSION OF LAW The criteria for an award of service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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). Prior to issuance of the rating decision on appeal, the Veteran was sent a notice letter in July 2006. This communication explained the division of responsibilities between VA and a claimant in developing an appeal. The letter also expressly informed the Veteran how to substantiate a service connection claim and what type of information and evidence was needed to establish a disability rating and effective date in the event service connection is granted. The Board finds the July 2007 letter was fully time- and content-compliant. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Board notes that, at the June 2009 hearing, the presiding VLJ made certain the Veteran was aware of the issue before the Board and that all relevant records were included in the claims file. The Board then remanded the case to obtain additional records. At the June 2012 hearing, the undersigned did likewise, to include remanding the case for additional development. In light of these factors, the Board finds the duties imposed by Bryant were met. In light of all the above, the Board finds VA fully complied with the VCAA notice requirements. 38 C.F.R. § 3.159(b); see also Bryant and Dingess/Hartman, both supra. VA also has a duty to assist the Veteran in the development of the 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(c). Upon receipt of the Veteran's claim, the RO obtained the service treatment records, identified private treatment records, VA outpatient records, and arranged an examination of the Veteran. At the June 2009 hearing, the Veteran testified he was in receipt of disability benefits from the Social Security Administration. The Board remanded the case to seek those records as well as other records identified by the Veteran. The Social Security Administration informed the RO in September 2009 that any records related to the Veteran had been destroyed. The undersigned also remanded the case to obtain relevant records identified by the Veteran and for another examination. When it was determined the AMC inquired of the Veteran as concerned records of treatment rendered at Tripler Army Hospital, Hawaii, instead of the National Personnel Records Center (NPRC), the Board remanded the case again in March 2013 for full compliance, which has been accomplished, as noted in the June 2013 SSOC. The NPRC, in a May 2013 response, provided a negative reply, and the AMC promulgated a formal finding of unavailability that same month. Neither the Veteran nor his representative asserts that there is additional evidence to be obtained, or that VA has failed to seek any records identified as relevant. In light of the above, the Board finds VA has fully assisted the Veteran with his claim, and that the record is sufficiently developed for a decision on the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed all the evidence in the Veteran's Virtual and paper claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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 profession." See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.307, 3.309. The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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. Davidson, 581 F.3d at 1316; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy. 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. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran has a current low back disorder variously diagnosed as lumbar spine degenerative disc and degenerative joint disease. Hence, the first requirement for service connection is shown by the medical evidence of record, which will be discussed in detail later in this decision. As noted previously, the Veteran is fully competent to attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). His wife and other lay persons are also competent to attest to objective symptoms they may have observed the Veteran to have exhibited. The Veteran testified that he experienced the onset of low back pain in basic training as a result of carrying a heavy radio during field exercises at Ft. Hood, TX. He sought and received treatment for it. A fellow soldier and hometown friend who was assigned to Ft. Hood during the same timeframe, MGW, noted in a September 2006 statement that, while he did not witness the incident, the Veteran told him of it and frequently complained of back pain. Service treatment records dated in June 1960 note the Veteran's complaints of pain in the lower part of his back, and that he had trouble holding his urine. He reported that he was treated for kidney trouble in 1958. No findings on examination are noted in the entry. He was prescribed medication, told to force fluids, and told to return if there was no improvement. A few days later, in early July, the Veteran reported his back had not improved, and he also reported severe pain in his left chest as well as dizziness. His temperature was 98.6. No diagnostic impression was noted on either occasion. Approximately 10 days later, the Veteran presented with complaints of recurrent back pain, and that he could not sit straight for very long. Again, there is no entry of findings on physical examination or a diagnostic impression; yet, the Veteran was injected locally with 50 cc of xylocaine. The Veteran testified he received the injection prior to his departure from Ft. Hood for Hawaii. He testified further that the physician bent the needle during the injection. This is not confirmed by the notation in the July 1960 entry. Another entry dated in July 1960 notes that the Veteran sought treatment at the Oakland, California, Army terminal en route to Hawaii. The entry notes multiple complaints since entering service, and that the current complaint was that the Veteran's back was bothering him again. Examination revealed a slight spasm at the paravertebral level, and the examiner wondered if it was voluntary. The diagnostic impression was an illegible term versus poor posture. The Veteran was instructed to report to sick call at his next station if his symptoms continued. At his June 2012 hearing, the Veteran recalled receiving treatment at Tripler Army Medical Center for his feet and back. June 2012 Transcript, p. 4. As earlier noted, no records of treatment at that facility were obtained. The Veteran's service personnel records reflect he arrived in Hawaii in August 1960 and departed in January 1961. Thus, service treatment records entries between those dates would have been made while he was in Hawaii. The records in the claims file reflect that the Veteran received treatment at Schofield Barracks in Hawaii. A September 1960 entry in the service treatment records notes the Veteran's complaints of back pain and flat feet. The entry also describes the Veteran as a chronic sick call rider. He had very flat feet and chronic pain when wearing boots. Marital problems were also noted. He was prescribed medication for nerves and referred to orthopedics for his flat feet. No notation regarding the back is present. A November 1960 entry notes that the Veteran was depressed, and he had a myriad of complaints. Physical examination was entirely negative. A November 1960 consult notes the Veteran was evaluated for his flat feet. There is no mention of back complaints or findings related to the back. The Veteran testified he reinjured his back at Ft. Riley. An October 1961 entry in the service treatment records made at Ft. Riley notes the Veteran's complaints of pain in the heart area and in the lower back. A history of numerous urinary tract infections was noted, as well as a myriad of complaints. There is no indication the Veteran reported or complained of a back injury. There is no notation of an examination of the back. The only entry for examination was that a blood test was normal. The Veteran testified at the June 2012 hearing that he had a Physical Profile while on active duty. Neither the service treatment nor service personnel records contain a Profile. On his March 1962 Report of Medical History for his examination at separation, the Veteran noted that "I am in A-1 shape." He reported a prior history of left shoulder, left knee problems, and the flat feet, but no history of low back problems. The March 1962 Report Of Medical Examination For Separation notes the Veteran's spine was assessed as normal. Hence, while there is a documented history of complaints of back pain, as of March 1962, there is no diagnosed low back order of record. The Board finds that the Veteran and his wife are sincere in their statements supporting the claim. Nonetheless, the Board finds that the Veteran's recall of events in the 1960s is unreliable. At the June 2009 hearing, the Veteran described the in-service "injury" as "just back strain, I guess." He disavowed a fall or other type trauma. See June 2009 Transcript, p. 9. Neither the Veteran nor his wife's testimony provides a specific time as to when he sought treatment after his separation from active service. The Veteran testified he believed he sought treatment the same year he separated from service, which was 1962, but he was not sure that such treatment was for his back, as he testified he saw a doctor every year after his separation. See June 2012 Transcript, p. 15. The records of doctors the Veteran may have seen several years ago are no longer available. As noted earlier, there are certain circumstances under which a lay person without medical training, which is the case with the Veteran, can provide competent evidence to establish a diagnosis. One of those instances is where a condition or disorder is readily susceptible to lay identification, such as varicose veins. The Veteran's current disorder is degenerative arthritis of the lumbar spine. The Board finds that degenerative arthritis is not a medical disorder that a lay person of average training and experience is capable of diagnosing. Jandreau, 492 F.3d at 1377. Neither is a lay person qualified to opine on an etiology for arthritis. The Veteran has not asserted, nor did he testify, that a medical professional told him his back manifested symptoms of arthritis within one year of service, or that his current disorder is causally related to his active service. In light of the above finding, the evidence of record shows the Veteran's documented history of complaints of back pain during his active service, though none was noted at the March 1962 physical examination at separation. Pain alone is not sufficient for service connection, as there must be a diagnosed underlying disorder associated with the pain. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). As noted, the medical examination at separation did not indicate a diagnosis of a low back disorder. Neither is there competent evidence that the Veteran's lumbar spine degenerative arthritis manifested at least to a compensable degree within one year of his separation from active service. As just noted, neither the Veteran nor his wife is competent to make that determination. See 38 C.F.R. § 3.159(a)(1). Thus, the preponderance of the evidence shows lumbar spine arthritis did not manifest at least to a compensable degree within one year of the Veteran's separation from service. Hence, there is no factual basis for service connection on a presumptive basis. 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran's private physician, PC, M.D., wrote a letter in March 2006. In that communication, he explained that he had treated the Veteran for many years and that the Veteran had severe back pain due to an injury he sustained at Ft. Riley in 1960. In a January 2007 letter, received by VA in April 2007, Dr. C again noted that the Veteran injured his back in the Army in 1960, and that he had experienced persistent problems intermittently since that time. The Veteran's treatment included non-steroidal anti-inflammants and narcotics. The records obtained from Dr. C date only from July 2003 to November 2007. They note the Veteran's back pain and diagnosis of lumbar disk disease and spinal stenosis but no history, to include any reported in-service low back injury. The Veteran candidly conceded at his June 2012 hearing that he sustained a work-related injury in the 1970s. A June 1999 VA outpatient entry notes his report of chronic low back pain times many years, which the Veteran attributed to a work injury, and that he was on disability as a result. The June 2010 VA examination report reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran's reported history of in-service back pain after carrying the radio, and that he had back problems right after he got out of service. The Veteran also reported a work-related back strain. The examiner noted the genitourinary symptoms the Veteran reported were due to benign prostate hypertrophy rather than his low back symptoms. The examiner also noted the Veteran's June 2009 cervical spine surgery, which relieved significant symptoms of the upper extremities. Physical examination revealed the Veteran's posture as stooped, and his gait was slow and steady. The Veteran's lumbar spine range of motion was limited and painful. X-rays showed degenerative changes in the thoracic and lumbar spine. The examiner diagnosed degenerative changes of thoracolumbar spine with decreased range of motion. The examiner noted the documented in-service treatment for back pain, but there was no diagnosis of a spine condition. Although the examiner noted an absence of documented treatment between the Veteran's separation in 1962 and the June 1999 VA outpatient entry, it was opined that the Veteran's generalized arthritis of the lumbar spine was due to post-military service physically demanding occupations and aging. The March 2012 Board remand directed the AMC to obtain all of the Veteran's VA treatment records, and to arrange another examination. The November 2012 VA examination report reflects that the records added to the claims file did not change the examiner's opinion that there was less than a 50-percent probability that the Veteran's current low back disorder was causally related to his active service. The examiner again opined that the Veteran's low back disability was due to his physically demanding work after active service and the aging process. The Board notes the VA examiner's nexus opinion is the only competent medical opinion of record. Indeed, Dr. C's letters appear to merely contain his transcription of the history reported by the Veteran himself. Neither letter from that physician contains a definitive nexus opinion. While a diagnosis or opinion is not inadequate per se because it is based on a patient's reported history, a physician must also bring his professional training and experience to bear in addition to the history. See generally Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). Thus, Dr. C's letters are not in fact in conflict with the VA examiner's opinion. In light of the all of the discussions set forth earlier, the Board finds as follows: 1) as there is no competent evidence of a diagnosed low back disorder in active service or within one year afterwards (including arthritis), the Veteran's lay evidence of continuous low back pain, while competent, is not a basis for service connection. 38 C.F.R. § 3.303(b) and Walker, 708 F.3d 1331; and, 2) the VA examiner examined the Veteran and rendered a nexus opinion for which a full rationale was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran's wife testified at the June 2012 hearing that the Veteran was not hurt badly enough in service where he could not work, but his in-service injury contributed to the Veteran's current condition. June 2012 Transcript, p. 17. However, there is no evidence she has medical training. Thus, to the extent she opined the Veteran's current low back disorder is causally related to his active service, it is not probative. See 38 C.F.R. § 3.159(a)(1). Therefore, the Board is constrained to find the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a back disorder, to include lumbar spine stenosis, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs