Citation Nr: 1322662 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-23 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and friend ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from November 1961 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in Portland, Oregon, in June 2011. A transcript of the proceeding has been associated with the claims file. This claim was previously before the Board in September 2011 and August 2012, at which time it was remanded for further development. FINDINGS OF FACT The competent and credible evidence of record establishes that the Veteran injured his back in-service and there is post-service continuity of symptomatology demonstrating a nexus between the current low back disability and the in-service injuries. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Since the Board is granting service connection for a low back disability, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Applicable Laws and Regulations Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a), to include arthritis -benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39. In this case, the Veteran has been diagnosed with arthritis of the lumbar spine; as such, the relaxed evidentiary standards under 38 C.F.R. § 3.303(b) are applicable here. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (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"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Facts and Analysis The Veteran contends that his current low back disability, diagnosed as degenerative disc disease of the lumbar spine, is due to several in-service injuries. At his June 2011 Board hearing, the Veteran testified that he initially injured his back in Okinawa during a repelling exercise; he then sustained additional injury to the low back at Camp Pendleton while moving a heavy safe out of a truck; and, finally, he testified that he re-injured his back in December 1965 at Da Nang Air Base (Vietnam) when he was thrown into the air and landed on his back during a mortar attack. He has endorsed ongoing low back problems since the initial repelling injury in Okinawa (1963). See Hearing Testimony, p. 14. The Board notes that the Veteran also provided testimony consistent with above at his RO hearing before a Decision Review Officer in February 2009. VA examination reports and treatment records establish that the Veteran has a current low back disability, namely, degenerative disc disease of the lumbar spine. See, e.g., October 2011 VA Spine Examination. As such, the first element of the Shedden analysis has been met here. Id. With respect to the second element of Shedden, in-service incurrence, the Veteran's service treatment records (STRs) are silent as to complaints, treatment, or diagnoses relating to a low back disability and/or abnormalities of the lumbar spine. His February 1966 physical separation examination showed a normal clinical assessment of his spine; on the contemporaneous Report of Medical History, he denied having swollen or painful joints, or arthritis. Nevertheless, as noted above, the Veteran has asserted that he injured his low back on at least three occasions in-service; he is competent to report on such matters. See Layno, supra. Moreover, the Board finds his assertions of in-service injury to be credible as they have been consistently reported throughout the record and are otherwise corroborated by several "buddy" statements of record, which relate eye witness accounts of the various back injuries. See, e.g., September 2006 Statement from Major D.A., and February 2009 Statement from G. C. Indeed, Major D.A. stated that he was stationed with the Veteran in Okinawa in 1963 and witnessed him "fall on his rear" and injure his back while rappelling. Another fellow service member, G.C., recalled that the Veteran suffered a "back sprain or some kind of issue" with the low back in 1965 while stationed at Camp Pendleton, followed by an additional injury to the low back while serving in Vietnam and coming under mortar attack. G.C. stated that he did not recall the specifics of the injury in Vietnam, but did remember the Veteran having subsequent problems with his back and needing to take time off to lie down. In addition, the Veteran's wife, who has been married to the Veteran since 1964 and has witnessed the Veteran's back problems since that time, recalled him telling her about "the incident on the base when lifting a safe" and injuring his back. The Board finds that these lay persons, and in particular Major D.A. and G.C., are competent to report that they witnessed the Veteran's various injuries/back problems during service, and the Board finds no reason to doubt the veracity or credible of their statements. See, Barr and Jandreau, supra. Based on the foregoing then, the Veteran meets the first and second requirements of the Shedden analysis. Accordingly, the question then becomes whether his current disability of the lumbar spine is attributable to the injury (or injuries) he experienced in service, or the result of other unrelated factors. Establishing that he has a current disability and that he had an injury during his service does not obviate the need for competent and credible evidence linking his current disability to the injury (or injuries) in service. The Board again notes that the Veteran's service treatment records are negative for any complaints or findings related to the low back. Thus, no chronic disease is shown in-service. There is also no evidence showing a diagnosis of arthritis of the low back in-service or within a year of discharge. Indeed, the first documented findings of lumbar arthritis are not shown until 2006. Thus, entitlement to service connection is not warranted on a presumptive basis. However, since the Veteran's current low back disability is a chronic disability under 38 C.F.R. § 3.309(a), and since the Veteran has expressly endorsed continuous back symptoms since his initial injury in-service, the Board must consider whether continuity of low back symptomatology has been demonstrated in this case. See also Walker, supra. In terms of post-service evidence, the Veteran testified that he initially sought treatment for low back problems in 1966 (and thereafter) when he began his employment with the County Sherriff's Office. See Hearing Transcript, p. 5. In its September 2011 remand, the Board requested that the Veteran submit records of such treatment. In an April 2012 letter, the Veteran responded that he received this initial treatment from the Eugene Hospital and Clinic, River Road Medical, and Drs. H and C, but his search for those medical records was fruitless as they were only kept by those facilities for a period of 10 years. See April 2012 Response Statement Regarding Post-Service Treatment. He stated that he also self-medicated with pain medications during this period. In further corroboration of ongoing post-service back symptoms/treatment since 1966, the claims file contains statements from the Veteran's former co-workers (J.W. and R.G.) and his wife. In a September 2006 statement, J.W. (a retired police officer) reported that he had known the Veteran since September 1966, when they first starting working together in the County Sherriff's Office. J.W. recalled that the Veteran spoke of his tour in Vietnam and that he received injuries to his back while in-service. J.W. stated that the Veteran displayed "signs of a back problem getting in and out of a vehicle and lifting. He also received medical treatment for his back at various times." Likewise, in a December 2007 statement, R.G. (also a retired police officer), reported that he had known the Veteran since the mid-1960's when they both worked together at the County Sheriff's Office. He recalled that the Veteran told him he was in the military and that he had sustained back injuries while moving some heavy items out of the back of a military truck, and while serving in Vietnam after coming under mortar attack. R.G. stated that the Veteran had really never complained about his back problems that much "verbally," but it was "evident from his walk and appearance when he was having a bad day that his back was bothering him." Finally, the Veteran's wife submitted a statement in December 2007, stating that she had been married to the Veteran since 1964 and "his back problems have been known to me since the time we were married." She specifically recalled that he sustained an injury to his back while lifting a safe in-service. She also stated that the Veteran had a very high tolerance for pain and that he would just lie in bed on his back and put his fist in the small of his back to relive some of the pain he was experiencing. She recalled that "he would continue to do whatever he needed to do while in pain...he would then take a hot bath to relive the pain as much as possible." The Board notes that the Veteran is competent to report that he sought medical treatment for his back as early as 1966 and that he self-medicated with pain medications for many years thereafter; moreover, the fact that the identified post-service treatment records are no longer available (through no fault of the Veteran), should not be fatal to his service connection claim. See also Savage v. Gober, 10 Vet. App. 488, 496 (1997) (holding that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology). Additionally, the statements from J.W. (a competent eye witness to the Veteran's post-service condition) corroborate the Veteran's assertions that he was treated for back problems contemporaneously with his employment at the County Sheriff's Office in the late 1960's and that his back problems were evident (i.e., readily observable) at that time. Again, the Board has no reason to doubt the veracity of J.W.'s statements as they are consistent with other lay evidence of record. The Board also has no reason to doubt the Veteran's statements as they have been consistently reported throughout the record. Therefore, the Board finds that the Veteran's statements, and those of J.W. regarding ongoing post-service low back symptoms and treatment, are credible. The statements from C.G. (another competent eye witness to the Veteran's post-service back condition) also demonstrate that the Veteran experienced ongoing back problems from 1966 onward. These are likewise consistent with the other lay evidence of record and they, too, are deemed credible. Finally, the statements from the Veteran's wife (another competent eye witness to the Veteran's back condition both during and after service) show that the Veteran had back problems in-service, and observable back problems since service, and that he largely self-medicated his pain for many years. There is also no reason to doubt the veracity of her statements and they are thus deemed credible. In addition to the lay statements of record concerning post-service symptomatology and treatment, a July 1980 private treatment record shows narrowing of the L-5 disc space, and VA treatment records dated from 2006 to 2012 document ongoing complaints of low back pain and diagnoses of degenerative disc disease of the lumbar spine. In sum, the competent and credible evidence outlined above establishes that the Veteran has experienced continuous low back symptoms since time of his initial repelling injury in-service, and to the present day. See Barr, Jandreau, supra. There is nothing in the record which expressly contradicts this finding. The Board is aware that the August 2012 VA examiner opined that the Veteran's degenerative disc disorder of the lumbar spine was not related to service. (Note: the October 2011 VA spine examination was deemed inadequate by the Board for lack of rationale - see August 2012 Remand). However, the Board finds this opinion to be less persuasive than the competent and credible lay statements provided by the Veteran, his wife, and his co-workers regarding continuity of low back symptoms since service. Indeed, the examiner reasoned that the current back disorder was age-related because he found no "evidence of identifiable back tissue damage or pathology during service" and there was a "lack of finding of current back pathology greater than expected for natural progression for a man of his age and circumstances." However, the examiner appears to have based his opinion, at least in part, on the absence of documented low back findings/treatment in-service (i.e., "identifiable back tissue damage or pathology). In order to rule out "back tissue damage" in-service, it would have been essential for the examiner to have reviewed any contemporaneous x-rays of the lumbar spine. Notably, the service treatment records do not contain any radiological studies of the lumbar spine. Thus, the rationale based on the lack of "back tissue damage or pathology" in-service is without merit. In addition, the examiner entirely failed to address the Veteran's statements regarding the three, separate back injuries in-service, and his continued back symptoms thereafter. For these reasons, the Board finds the examiner's opinion to be of diminished probative value.. Given the particular facts of this case, to include the competent and credible statements of the Veteran and fellow service members regarding multiple in-service injuries to the low back; the competent and credible statements of the Veteran, his co-workers, and his wife as to continuous low back problems (and medical treatment) since 1966 to the present; and the lack of evidence of any intervening, post-service injuries to the back; the Board finds that at the very least that the evidence is in equipoise as to whether the Veteran's current back disability had its onset in service, especially given the Veteran's continuity of symptoms since service. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Thus, resolving all doubt in the Veteran's favor, the Board concludes that Shedden element (3), nexus or relationship, is satisfied based on a showing of continuity of CONTINUE ON THE NEXT PAGE symptoms since service. 38 C.F.R. § 3.303(b). As such, service connection for degenerative disc disease of the lumbar spine must be granted. 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs