Citation Nr: 1322548 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-26 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from February 24 to April 11, 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is associated with the claims file. In March 2013, the Board remanded this case for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This virtual file contains additional records including VA treatment records and the February 2013 hearing transcript. FINDING OF FACT The evidence does not show that the Veteran's current back disability was present during service or for many years after service; it is not otherwise attributable to the Veteran's period of military service. CONCLUSION OF LAW The Veteran does not have a back disability that is the result of disease or injury incurred in or aggravated by active military service; it may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in October 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 letter also explained what type of information and evidence was needed to establish a disability rating and effective date. 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 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also 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. In compliance with the Board's March 2013 remand, VA sought and obtained the Veteran's Social Security Administration (SSA) records. Thereafter, the claims file, including these additional records was forwarded to the September 2012 VA examiner for an addendum opinion. In a May 2013 addendum opinion, this examiner reviewed the additional evidence, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Thus VA has complied with the March 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 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). Analysis Certain chronic disabilities, such as arthritis, are entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The record does not contain any records from the relevant time period. X-rays taken at the time of separation do not show arthritis. Furthermore, the record contains no evidence of further back complaints until September 1990, at which time the Veteran was injured in a motorcycle accident. Therefore, as there is no indication that any arthritis manifested to a degree of 10 percent or more within one year after discharge, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record contains a current diagnosis of spondylosis. See September 2012 VA examination. Thus, the current disability requirement has been met. In his lay statements, the Veteran has stated that he was prematurely separated from service due to a back injury. This is not supported by the evidence of record. His service treatment records show a finding of exogenous obesity (with recorded weight at 218 to 234 pounds) not in the line of duty, lack of cooperation with weight reduction program (for which he was admitted to the hospital), and an associated Medical Board recommendation for separation. See generally Service Treatment Records. The listed discharge reason was for "not meeting medical fitness standards at time of enlistment." The March 1969 Medical Board noted that the Veteran's physical examination was within normal limits except for obesity. A lumbar spine x-ray showed spina bifida occulta, but no significant pathology. An undated service treatment record notes that, aside from obesity, the Veteran had no other medical problems except "vague lower back pain." A March 1969 record notes that the Veteran was seen for possible lumbosacral strain due to his complaints of back pain during physical training. Thus, the in-service occurrence or injury requirement is met with regard to complaints of back pain in service. The third requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's current disability. The VA examiner opined that it was less likely as not that the Veteran's current back disability was incurred in or caused by his military service. In a September 2012 opinion, the examiner found no evidence of chronic back pain treatment following service, a several decade delay prior to a back diagnosis, and an intervening motor vehicle accident that coincided with the start of the Veteran's back treatment. Thus, she found no chronological sequence of the Veteran's back condition. In May 2013, this examiner reviewed the additional evidence of record and again opined that it was less likely as not that the Veteran's back disability was incurred in or caused by his military service, noting that the newly received records did not change any aspect of her previous opinion as it confirmed that there was no chronic back condition between the Veteran's separation from service in April 1969 and his September 1990 motorcycle accident, which included multiple fractures, including a fracture of the thoracic spine. To the extent that the Veteran himself believes that his spondylosis is due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and includes a significant intervening injury. As such, the Veteran is not competent to address etiology in the present case. Thus, the Board finds that the medical nexus requirement has not been met. Alternately, service connection for these disabilities may be established by a continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions, such as arthritis, explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In his various lay statements to VA, the Veteran has reported that his back disability began in service. Likewise, the Veteran's wife provided testimony at the February 2013 hearing that the Veteran had suffered from back pain for the entire time that she knew him, approximately 37 years, which coincides with the Veteran's separation from service. Both the Veteran and his wife are competent to report a history of back symptoms; however, these statements must be considered in light of the entire record. Layno v. Brown, 6 Vet. App. 465 (1994); Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In this regard, the Board notes that the first evidence of post-service back complaints of record is in 1990, more than 20 years after the Veteran's service. These complaints are noted within the context of his post-service motorcycle accident. Prior to that, there is no objective record of back symptoms. In the evidence submitted in conjunction with his claim for SSA benefits, approximately a decade prior to his VA claim, the Veteran reported significant injuries following a September 1990 motorcycle accident. A December 1990 letter from Dr. R.G.C. notes that the Veteran was treated for multiple injuries, including thoracic spine fracture, following a September 1990 motorcycle accident. Later private treatment records note the Veteran's continued back pain following this accident. See R.G.C.'s June 1991 letter, M.J.T. records dated July 1993 and February 1995. While a post-service injury in and of itself foreclose the possibility of continuous symptoms since service, the records also contain a November 1990 statement from the Veteran's wife wherein she stressed that the Veteran had always been very strong and had performed physically demanding work, including heavy lifting, as a commercial carpenter and in construction prior to his 1990 injury. His reported work history corroborates this statement. Although the Veteran and his wife are competent to report the onset of his back symptoms, the Board finds that their statements as to continuity since service lack credibility. Given the prior seemingly conflicting statements in the SSA application, the lack of medical treatment, the lack of reference to prior back complaints during his treatment following the motorcycle injury, and the Veteran's history of physically demanding employment, the Board finds that the Veteran did not experience a continuity of symptoms since service. In short, for reasons expressed immediately above, the claim of service connection for a back disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a back disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs