Citation Nr: 1323030 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 12-08 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1953 to August 1957. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. In that rating decision, the RO denied the claims for service connection for bilateral hearing loss, tinnitus, and a low back disorder. The Veteran perfected an appeal to those denials. In August 2012, the Board awarded service connection for tinnitus, but denied the Veteran's claim for service connection for bilateral hearing loss. The Board also remanded the claim for entitlement to service connection for a low back disorder the RO (via the Appeals Management Center (AMC)) for additional development. The Board instructed that any outstanding identified records of pertinent private treatment should be obtained and associated with the claims folder. In addition, the Veteran was to be afforded a VA examination to determine the nature and etiology of his claimed low back disorder. A review of the record reflects that attempts to obtain identified pertinent private treatment records were successful. The Veteran was afforded a VA examination in August 2012, and an addendum medical opinion was obtained in December 2012. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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). FINDING OF FACT The Veteran's current low back disorder, including degenerative arthritis and herniated disc, did not first manifested during his period of service or within the first year thereafter, and the preponderance of the competent evidence is against a finding that his current low back disorder is related to any aspect of his service. CONCLUSION OF LAW The criteria for service connection for low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations requires VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in June 2010, prior to the initial unfavorable August 2010 rating decision, of the evidence and information necessary to substantiate his claims, and the responsibilities of the Veteran and VA in obtaining such evidence. He was further advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his claim. With regard to the duty to assist, the Veteran's service treatment records, VA treatment records dated since 2000, and pertinent private treatment records, as well as his lay statements of argument have been obtained and associated with the claims folder. The Board acknowledges that an April 2010 Personnel Information Exchange System (PIES) response indicates that the Veteran's service treatment records were fire related and presumed to have been destroyed. However, a copy set of the Veteran's service treatment records was obtained from the National Personnel Records Center (NPRC) in May 2010 and those records have now been associated with the claims folder. Pursuant to the Board's August 2012 remand directives, the Veteran was afforded a VA examination in October 2012 and an addendum VA medical opinion was obtained in December 2012. In the October 2012 VA examination report, the VA examiner reviewed the claims folders and recorded the Veteran's reported history and the clinical findings in the examination report. In the December 2012 addendum, the VA examiner noted a further review of the claims folder and the findings from clinical evaluation, and provided a comprehensive statement in support of his conclusions. The Board finds that the medical opinion is adequate for adjudication purposes, and the adequacy of this medical opinion is discussed in further details below. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO/AMC has substantially complied with the Board's August 2011 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not 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. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may also be allowed on a presumptive basis for arthritis and organic neurological disorders, and if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, including arthritis and organic neurological disorders, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Service connection may also 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). To prevail on the issue of service connection, generally, there must be competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2008). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for a low back disorder. The Veteran contends that he sustained injury to his low back when lifting heavy ammunition crates in 1953. He contends that he further injured his low back in 1956 from a motor vehicle accident, in which the car that he was riding in flipped over two and half times. Although the Veteran indicated that he did not seek any medical treatment following the motor vehicle accident, he reports that he has experienced low back pain since that accident. A review of the Veteran's service treatment records does not reflect any complaints or treatment for problems involving his spine. The reports of an August 1956 periodic examination and a July 1957 examination prior to separation show that the Veteran's spine was evaluated as normal on both occasions. In the July 1957 associated report of medical history, the Veteran did not indicate that he had experienced any spine problems during his period of service. A subsequent reserve enlistment examination report from January 1964 continues to show that the Veteran's spine was evaluated as normal. The first available post-service VA and private treatment records come in 2000. A May 2000 private MRI report of the lumbar spine revealed that the Veteran had severe degenerative disc disease at all levels between T11 and S1 and with a retrolisthesis at L2-3. The Veteran underwent spinal decompression and fusion surgery in June 2000. He continued to complain of low back problems and he underwent a second spinal decompression and fusion surgery in 2004. The most recent private treatment records from 2012 show that the Veteran has been assessed with severe disk degeneration and sciatica. Pursuant to the Board's August 2012 remand directives, the Veteran was afforded a VA spine examination in October 2012. In that examination report, the VA examiner noted a review of the claims folder and recorded the Veteran's reported medical history, as well as the clinical findings from the examination. The Veteran reported that he injured his back while lifting gun ammunition in 1953. He reported that he has undergone two lumbar spine surgeries, as well as received cortisone injections. The Veteran complained that his back hurt most of time with constant numbness in his legs. He reported that he required the use of a walker to ambulate for any significant distances. Based on the findings from the clinical examination, including an x-ray report, the VA examiner provided the following diagnosis: low back strain with intervertebral disc syndrome and radiculopathy, status post spine surgery. In a December 2012 addendum VA medical opinion, the VA examiner noted a review of the claims folder as well as the clinical findings from the October 2012 examination. The VA examiner opined that the currently diagnosed low back disorder was less likely than not incurred in or caused by the Veteran's period of service, to include his claimed in service injuries. In support of the medical conclusion, the examiner noted that there was no evidence of history of back injury or back symptoms in the Veteran's service treatment records. The examiner further noted that the Veteran's first spinal surgery was 40 years after his claimed in-service back injuries from lifting ammunition in 1953 and from the motor vehicle accident in 1956. The examiner further noted that even if these injuries were noted and documented in the Veteran's records, it would be impossible to make a connection between such distant occurrences. In this case, the Veteran seeks entitlement to service connection for his current diagnosed low back disorder. However, the Board finds that the Veteran's currently diagnosed disorder was not incurred in service or within the first year thereafter. In addition, the Board finds that the preponderance of the competent lay and medical evidence is against the finding that the Veteran's current diagnosed low back disorder is otherwise related to his period of service. The evidence does not show that the Veteran was diagnosed with arthritis or a neurological disorder of the lumbar spine within one year following his separation from service. Rather, the first available medical evidence of degenerative arthritis comes four decades after the Veteran's separation from service. As such, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The remaining question on appeal is whether the Veteran's current diagnosed disorder is related to his reported in-service injuries. Based on a review of the competent evidence, the Board finds that the preponderance of the competent lay and medical evidence is against a finding that his current low back disorder is related to his period of service. With regard to the decades-long evidentiary gap in this case between active service and the earliest manifestations of claimed disorders, the Board finds this gap in time significant, and, as noted above, it weighs against the existence of a link between current back disorder and his time in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider a prolonged period without medical complaint when deciding a claim). In addition, the record lacks any medical evidence that links the Veteran's current low back disorder to his military service. Indeed, the December 2012 VA examiner provided a medical opinion that heavily weighs against the Veteran's claim. The VA examiner opined that it was less likely than not that the Veteran's current diagnosed low back disorder is caused by or related to his period of service, to include his reported in-service injuries. The Board finds it highly pertinent that there is no contradictory medical opinion of record. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claim, and against the reasoned conclusions of the VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) (it is a claimant's responsibility to support a claim for VA benefits). The Board considered whether the Veteran's lay evidence constitutes competent and credible evidence of etiology in this particular case. Lay 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 the symptoms at the time support at later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). In this case, the Board concludes that the etiology of degenerative disease of the spine is a complex matter requiring medical expertise. Although the Veteran is competent to report his symptoms of pain and immobility, the diagnosis of degenerative disease and determination of its etiology require medical examination, imaging, and detailed assessment of medical history. The Board concludes that the Veteran does not possess the necessary medical training and is not competent to provide an etiology of the disorders. As noted above in the legal criteria above, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service-connection element for certain chronic diseases, including arthritis, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Indeed, the Veteran has asserted at times during the appeal period that he has experienced low back since his service period to the present day. The Board accepts the Veteran's accounts that he injured his spine when he was lifting heavy ammunition crates and that he further injured his back when he was involved in a motor vehicle accident during his period of service. The Board also acknowledges the competence of the Veteran's statements that he has had symptoms involving his spine since his period of service. These are competent recitations of facts as he recalls them. Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). The United States Court of Appeals for Veterans Claims has made clear that the Board cannot determine that competent lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board places less probative weight on the report of injuries and continuity of symptoms after service because it is inconsistent with service and post service treatment records. The Board places less probative weight on the Veteran's contended spine injuries because he made no mention of such injuries in the Veteran's service treatment records, and he failed to report a history of injuries to any VA or private clinicians throughout his treatment until 2010 when he initiated filing a claim for service. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current low back disorder had an onset in service or is otherwise related to his period of service. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs