Citation Nr: 1322949 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 13-00 019A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a lumbar spine disability (back disability). REPRESENTATION Appellant (the Veteran) is represented by: John March, Agent ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from October 1999 to April 2000, and from March 2003 to May 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the RO in Columbia, South Carolina. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran did not sustain a disability of the lumbar spine in service; and, symptoms of arthritis of the lumbar spine were not chronic in service. 3. Arthritis of the lumbar spine did not become manifest to a degree of 10 percent or more within one year of service separation; and, symptoms of arthritis of the lumbar spine have not been continuous since service separation. 4. No current lumbar spine disability is related to service. CONCLUSION OF LAW A lumbar spine disability was not incurred in service; arthritis of the lumbar spine is not presumed to have been incurred in service. 38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a lumbar spine disability on the basis that it was incurred during service. Current lumbar spine diagnoses include arthritis, and disc-related lumbar radiculopathy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include arthritis, but do not include degenerative disc disease, intervertebral disc disease, or lumbar radiculopathy. 38 C.F.R. § 3.309(a). Where arthritis is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity at some later date. For the showing of chronic disease in service there is required 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disability of the lumbar spine during service, symptoms of arthritis of the lumbar spine were not chronic in service, arthritis of the lumbar spine did not become manifest to a degree of 10 percent or more within one year of service separation, symptoms of arthritis of the lumbar spine have not been continuous since service separation, and no current lumbar spine disorder is related to service. Based on these findings, the Board concludes that service connection for a lumbar spine disability is not warranted. Service treatment records reveal no treatment for a disease or injury of the lumbar spine during service. The Board acknowledges that the Veteran's service treatment records are incomplete, as certified by the RO in September 2012. The Veteran asserts that she was involved in a motor vehicle accident in Iraq in 2004. \ As she described it, she was riding on the passenger side in a Humvee on a four-lane road when another vehicle side-swiped her vehicle and pushed it to the opposite side of the road (see April 2011 VA examination report). While the Veteran reported that she was checked out at a medical clinic, she stated that no X-rays were taken and she was not hospitalized. She has not asserted that she was provided a diagnosis of a lumbar spine disability. A March 2004 health self-assessment completed by the Veteran at the end of her deployment indicates that she experienced back pain during her deployment, but that her health stayed about the same or got better during the deployment. Although there is no record of a motor vehicle accident, the Board finds that the account is credible. The Board also finds that the Veteran's assertion that she experienced back pain during service to be credible. However, the Board finds that a lumbar spine disability did not begin during service. Important in this finding is that, whatever back pain was experienced by the Veteran during service apparently resolved by the time of service separation. As noted above, the service treatment records are not complete; however, the service separation examination is of record. The Veteran's spine was found to be clinically normal after a complete medical examination. In a comprehensive report of medical history completed by the Veteran at the time of the service separation examination, she reported no history of "recurrent" back pain and no history of arthritis. She also reported that she had not been treated by clinics, physicians, healers, or other practitioners within the prior 5 years for other than minor illnesses. Thus, while the service treatment records are admittedly incomplete, a military clinician found her to have no disability of the lumbar spine at service separation, and the Veteran reported that, to the extent she experienced back symptoms, such symptoms were not recurrent and she had not been treated for any but minor illnesses. The Board finds that this evidence, combined with the Veteran's recorded assertion on the post-deployment assessment that her health stayed about the same or got better during the deployment, weighs strongly against the incurrence of a lumbar spine disability during service. Simply stated, the Veteran herself has provided highly probative evidence against her claim that she has had back problems since the accident in service. The Board's finding as to a resolution of symptoms prior to service separation is also supported by the Veteran's account to an April 2011 VA examiner that she did not experience back pain until after being discharged. The onset of current pain was described as occurring while she was working as a cook in a convenience store. This account is, in turn, consistent with another account provided by the Veteran on a May 2010 VA Form 21-4138. After describing the accident in service, the Veteran reported that "my back didn't start bothering me until later on." Once again, the Veteran provides evidence that does not support the claim of back problems since the accident in service. The Board also notes that the Veteran reported a "slip and fall incident" during advanced infantry training; however, she has not identified any lumbar spine symptomatology experienced in conjunction with that incident, and she has not reported any treatment or diagnosis associated with it. Once again, the service separation examination and the report of medical history at service separation weigh against the incurrence of a lumbar spine disability stemming from this incident or any other incident. In sum, the evidence pertinent to service, including the Veteran's own assertions made contemporaneous with service separation, demonstrates that, to the extent she experienced back pain during service, including that associated with a motor vehicle accident and a slip-and-fall, her symptoms had resolved by service separation, and she did not incur a lumbar spine disability during service. The first treatment for symptoms of the lumbar spine appears to be in August 2006 when the Veteran was seen at Barnwell County Hospital emergency room for mid- and low-back pain associated with ambulation. She reported that the pain began the prior evening at work. An X-ray showed mild lumbar scoliosis with mild chronic-appearing disc space narrowing at L4-5 and L5-S1. The impression was acute myofascial strain and acute low back pain. The next treatment report is from December 2009, at which time the Veteran reported experiencing low back pain for 3 days with radiation of pain down the right leg. It was noted that the Veteran was working at a gas station and had to stand for 8 hours per day and that her job required lifting. She reported that the pain would flare up when she would lift too much. The clinical impression was sciatica. This report would appears to at least suggest the back problem resulted, at least in the Veteran's mind at that time, from too much lifting at her post-service work, providing some limited evidence against this claim. The Veteran was again treated in April 2010 for similar complaints. She again noted that she performed lifting at work. An X-ray showed moderate disc space narrowing at L5-S1, otherwise unremarkable. The diagnosis was acute low back pain. A September 2010 VA treatment report indicates that most of her back pain was occurring during work hours with prolonged standing and bending over to prepare food. The Board notes that, while X-ray results in August 2006 and April 2010 show some disc space narrowing, they do not show arthritis. This is persuasive evidence that arthritis did not become manifest to a degree of 10 percent or more within a year of service separation, and that there was no continuity of arthritis symptomatology after service. This is not a silent record. The Veteran's lumbar spine was examined on two occasions post-service, and the results were negative for arthritis. As degenerative disc disease and intervertebral disc syndrome are not listed under 38 C.F.R. § 3.309(a), neither the presumption of service connection nor the provisions regarding chronicity and continuity of symptomatology are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the question of nexus, the Veteran was afforded a VA examination in April 2011, and, after examining the Veteran and reviewing the evidence, the examiner opined that it was "as less likely as not (less than 50/50 probability)" that the Veteran's lumbar spine condition (diagnosed as degenerative arthritis and radiculopathy) was caused by or related to the period of active service. The rationale was that there was no significant spine injury or condition during service. While the examiner's use of the terminology "as less likely as not" leaves room for interpretation, the subsequent qualification of less than 50/50 probability indicates clearly what the examiner intended. Moreover, his intent is also clear within the context of the rationale provided. See Lee v. Brown, 10 Vet. App. 336 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). There is no medical opinion that purports to relate any current lumbar spine disability to service. The Veteran certainly believes that a lumbar spine disability is related to service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Board finds that establishing the etiology of arthritis and lumbar radiculopathy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summation of the Board's findings, a disability of the lumbar spine did not begin in service, symptoms of arthritis of the lumbar spine were not chronic in service; arthritis of the lumbar spine did not become manifest to a degree of 10 percent or more within one year of service separation; symptoms of arthritis of the lumbar spine have not been continuous since service separation; and no current lumbar spine disorder is related to service. In light of these findings, the Board concludes that service connection for a lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veterans Claims Assistance Act of 2000 (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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted her claim for service connection in May 2010. She was sent a letter in May 2010 which advised her of the information and evidence necessary to substantiate the claim. That letter also advised her as to how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the May 2010 letter was sent to the Veteran prior to the initial adjudication of the claim in May 2011, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's available service treatment records, post-service VA and private treatment records, and the Veteran's written assertions. The RO made an exhaustive search for the Veteran's service treatment records, and certified the unavailability of at least a portion of those records in a September 2012 memorandum. The efforts undertaken to locate the records were detailed in that memorandum. In these circumstances, when a Veteran's service treatment records are unavailable through no fault of her own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Here, the absence of a complete service record is mitigated greatly by the presence of the service separation examination. This provides persuasive evidence that there was no disability of the lumbar spine at service separation. It is also a reliable reflection of the Veteran's symptomatology at the time, as she was afforded the opportunity to report her symptoms, and she indicted that she did not have a history of recurrent back pain. In addition, the Veteran was afforded a VA examination to address the nature and etiology of the claimed lumbar spine disability. This examination was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the examination report demonstrates that the examiner not only reviewed the evidence in the claims file, but that he understood the evidence, and that his opinion was informed by the evidence. The resulting opinion was accompanied by rationale that is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board acknowledges that there are issues of concern regarding the April 2011 VA examiner's rationale, in that it relied to some degree on what the examiner described as the absence of evidence of a significant spinal injury in service, when, as already discussed, the Veteran's service treatment records are incomplete. As the VA examiner was aware of and acknowledged the Veteran's account of a motor vehicle accident during service, and was also aware of her report that her current symptoms did not begin until after service, the rationale is interpreted as a finding that the in-service accident did not result in any significant spinal injury. To the extent however, that the Veteran was relying on the absence of treatment records, the rationale provided still does not render the opinion inadequate. The Board has rendered specific findings regarding the events of service. The Board has acknowledged that the Veteran was involved in a motor vehicle accident during service. The Board has also acknowledged that she experienced some back pain during service. The Board has found that, to the extent that there were lumbar spine symptoms during service, there was no lumbar spine disability at the time of service separation. The Board has relied on competent medical evidence for this finding, to include the service separation examination. As the VA examiner's rationale is consistent with the facts as found by the Board, to the extent there was any error in the examiner's reliance on the absence of treatment records, this error did not result in any prejudice that would render the opinion inadequate. In this regard, it is important for the Veteran to understand that it is her own statements at key points in the record that provides significant and highly probative evidence against this claim. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs