Citation Nr: 1322836 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-06 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active duty for training from March 1961 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The rating decision denied the Veteran's petition to reopen a claim for service connection for a low back disability. The Veteran testified at a hearing in April 2012 before the undersigned. A copy of the transcript has been associated with the claims file and reviewed. In February 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the April 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current low back disability did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 C.F.R. §§ 1101, 1112, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is listed as a chronic disability under 38 C.F.R. § 3.309(a). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA), or for injury incurred in or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002 & Supp. 2012); 38 C.F.R. § 3.6 (2012). The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. In this case, service connection for migraine headaches has been established as etiologically related to the Veteran's period of ACDUTRA. 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) (2012). The Veteran has been diagnosed with degenerative changes of the low back. At issue is whether the Veteran's current low back disability had onset in service or was caused by the Veteran's active military service. The Veteran has alleged that his current problems began when he injured his low back trying to move a heavy latrine in service. Service treatment records show that the Veteran complained of low back pain in January 1961, associated with a fall several days ago. The Veteran was prescribed heat and a rub compound. In August 1961, the Veteran complained of back pain. There was no evidence of swelling or injury observed and the Veteran was again prescribed only heat therapy. At the Veteran's September 1961 separation examination, no disabilities of the back or spine were noted. Post-service, there is no evidence of any complaints of or treatment for a low back disability for many years after service. Although the Veteran claimed at his April 2012 Travel Board hearing that he received treatment for his low back from VA at the Jesse Brown VA Medical Center from 1971 to 1976, the RO was unable to find these records and a formal finding of unavailability was placed of record. Private medical evidence from Dr. E.T. shows that in September 1998 the Veteran was in a motor vehicle accident and sustained a thoracic strain. An examination following the accident noted increased tension and discomfort to palpation in the thoracic and lumbar spinal area. In August 2000, the Veteran was administered an x-ray of the lumbar spine at St. Francis Health Clinic. The x-ray report noted a reported three year history of back pain and found minimal degenerative spondylitic changes. In August 2002, the Veteran told a VA treatment provider that he had arthritis in his spine for the past five years. That same month, he was awarded disability benefits from the Social Security Administration (SSA) for osteoarthritis. At a March 2006 VA Spine Examination, the Veteran reported that he had only experienced low back pain for the past three years. The VA examiner opined, after a review of the Veteran's claims file, that the Veteran's degenerative disc disease of the lumbar spine and low back pain are less likely than not related to his military service. In a March 2009 statement, A. M., the Veteran's private physician's assistant, stated that based upon the Veteran's self reports, he believed that the "excessive manual labor" the Veteran performed in service contributed to his current arthritis. The Veteran's April 2012 hearing testimony is also material. He testified that he injured his back while moving a latrine in service, and that he has had back pain since that time. He described feeling a pop in his back while lifting. In March 2013, the Veteran was afforded another VA examination of his low back. The examiner opined that the Veteran's low back pain and degenerative disc disease is less likely than not incurred in or caused by an in-service injury. The examiner acknowledged the Veteran's contentions that he injured his low back in January 1961 while attempting to move a latrine and has suffered from low back pain since that time; however, the examiner concluded that the other evidence of record does not substantiate the Veteran's claims. He noted that following the Veteran's in-service complaints, there is no continuum of care until 1998, when the Veteran sought treatment following a motor vehicle accident. Based on all of the above evidence, the Board finds that entitlement to service connection for a low back disability cannot be granted. Although the Veteran's service treatment records do show two complaints of back pain, there is no evidence of any injury to the low back or spine. The Veteran's back and spine were within normal limits at his separation examination and there are no complaints of or treatment for a low back disability for decades after service. In short, there is no evidence of a chronic low back disability in service or for many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (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 Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). While in some of his statements to the Board, the Veteran has alleged that he continuously experienced low back pain following his active military service, other evidence of record contradicts these claims. As noted above, in August 2000, the Veteran was administered an x-ray of the lumbar spine at St. Francis Health Clinic. The x-ray report noted a reported three year history of back pain and found minimal degenerative spondylitic changes. In August 2002, the Veteran told a VA treatment provider that he had arthritis in his spine for the past five years. At a March 2006 VA examination, the Veteran reported a three year history of low back pain. Thus, the Veteran's own reports to his treatment providers support a finding that his current disability did not develop until many years after service. The Board finds that these contemporaneous medical records have greater probative value than history as currently reported by the Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Furthermore, the inconsistencies in the Veteran's reports of when his disability had onset undermine his credibility. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Based on the Veteran's conflicting accounts of when he first experienced symptoms of his low back disability, the Board concludes that he is not a reliable historian and finds that his testimony can be afforded only limited probative value. Finally, the Board has considered the medical opinions of the VA examiners, as well as the Veteran's physician assistant, A.M. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board gives greater weight to the opinion of the March 2013 VA examiner. A.M.'s conclusion that the Veteran's current low back disability is due in part to physical labor in service appears to be based solely on the Veteran's own self-reported medical history, which as discussed above, the Board has determined is not credible. A.M. did not review relevant clinical records, including the Veteran's separation examination and private medical records documenting an injury to the Veteran's back in a 1998 motor vehicle accident. In contrast, the March 2013 VA examiner reviewed all the evidence of record before reaching his conclusion. He provided a clear explanation for his opinion, which is supported by the evidence of record. To the extent that the Veteran has offered his own opinion concerning the etiology of his current low back condition, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has degenerative changes of the lumbar spine due to his alleged lifting injury in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, the preponderance of the evidence is against the Veteran's claim and entitlement to service connection for a low back disability must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2008. This letter informed the Veteran of what evidence was required to substantiate his service connection claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical 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 without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and SSA records. The Veteran was provided an opportunity to set forth his contentions during the April 2012 hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded a VA medical examination March 2013. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, 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). (Continued on the next page) ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs