Citation Nr: 1323337 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-05 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board remanded this claim in April 2010 and September 2012 and each time noted that although the claim had been developed as if a final prior decision had occurred, the Veteran had not been provided notice of the prior "final" denial (see January 1988 RO rating decision). Analysis of the claim on the basis of whether new and material evidence had been submitted was not appropriate. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1 (2009); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The claim was most recently remanded by the Board in April 2013. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may therefore proceed with appellate review. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). As noted in the prior remand, the Veteran raised a claim of service connection for posttraumatic stress disorder (PTSD). See VA Form 21-0820, Report of General Information. The Board referred the claim to the agency of original jurisdiction (AOJ) so that appropriate action could be undertaken. It is unclear whether any action has been taken so the claim is AGAIN referred to the AOJ. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran's back disability is related to active duty. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's 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 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. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to the September 2012 remand, appropriate notice was provided in November 2012 and the claim was subsequently readjudicated in January and May 2013 supplemental statements of the case (SSOCs). Mayfield, 444 F.3d at 1333. The duty to assist the Veteran in the development of the claim has also been met. VA obtained service treatment records, post-service VA and private medical treatment records and records from the Social Security Administration (SSA). The Veteran was afforded a VA examination in April 2013. The Board finds that the VA examination (and included nexus opinion) is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record. The examination report/opinion also is shown to have provided adequate medical information/opinions needed to adjudicate the affected claim. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Contentions As part of a VA Form 21-526, received in November 2001, the Veteran sought service connection for diabetes. As part of testimony at a May 2009 hearing conducted by a Veterans Law Judge, the Veteran asserted that his lumbar spine disorder was caused by his falling into a hole, which caused him to sprain his back, and that he had suffered from "nothing but problems" since that time. See page 15 of transcript. The Veteran also claimed as part of his July 2006 claim that he had served one week in Vietnam in July 1975 and had been exposed to Agent Orange. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (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 and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). There is a statutory presumption of service connection for certain diseases associated with exposure to herbicides for veterans who "served in the Republic of Vietnam." 38 U.S.C. § 1116. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(6)(iii). A lumbar spine disability, to include any of the Veteran's currently diagnosed back disabilities, is not among those diseases. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as arthritis, if the disease became manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 ; 38 C.F.R. §§ 3.307(a), 3.309(a). Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Factual Background The service treatment records show that examination of the Veteran's lumbar spine was normal in the course of examinations conducted in October 1973 (pre-induction) and July 1975 (discharge). He was seen on one occasion during his active duty in June 1974, at which time he complained of left-sided lower back pain. A history of trauma occurring two weeks earlier was reported. Spasm were shown on examination. Moderate muscle strain was diagnosed. The Veteran's DD 214 shows only foreign duty in Germany, and he was not awarded any Vietnam-related medals or commendations. During his May 2009 hearing, he testified that he was in Vietnam from January to August 1975, but as part of a January 2002 VA Form 21-526 indicated that he did not serve in Vietnam Post service medical records associated with the Veteran's claims file include records referable to several job-related accidents. A December 1989 private medical admission record details a November 1989 injury and included diagnoses of lumbar disc disease, herniated nucleus pulposus, and radiculopathy. The Veteran at this time hurt his back while lifting a 50 pound crate while delivering milk. He was admitted with acute back pain; a discharge summary of herniated disc L4 was provided. A December 1989 private X-ray report includes a diagnosis of lumbosacral spine osteoarthritis. A March 2002 private physician letter noted that the Veteran had slipped on the ice in January 2002, after which he reported right-sided low back pain. An April 2002 private examination report shows that the Veteran reported initially injuring his low back in 1982 at which time he underwent disc surgery. A September 1987 VA examination report shows that the Veteran provided a history of developing a herniated lumbar disc in 1986. No spine limitation of motion was shown on examination. A healed midline surgical scar was observed. The diagnoses included past disc surgery, no residuals. A private medical discharge summary dated in February 1990 shows that the Veteran underwent lower back surgery, to repair a recurrent herniated disc at L4-L5. The Veteran was noted to have a two month history of severe lower back pain that developed following a work injury. An April 1991 Social Security Administration (SSA) Disability Determination and Transmittal form shows that the Veteran was found to be disabled from December 1989. The primary diagnosis was low back pain post laminectomy, and the secondary diagnosis was recurrent disc herniation. A September 2000 VA history and physical examination report notes that the Veteran gave a history of injuring his right ankle in 1974 after falling into a hole. He was told nothing was wrong and he returned to duty. The Veteran made no complaints concerning his lumbar spine at this time. A back-related diagnosis was not supplied. A January 2002 private X-ray report shows that mild to moderate degenerative disc disease of the lumbar spine was diagnosed. An April 2002 private examination report shows that the Veteran's chief complaint was low back pain. A history of back surgeries in 1982 and 1989 was reported. The Veteran reported that his initial back injury happened in 1982, and that he did well until incurring another injury in 1989. Status post L4-L5 discectomy times two with January 2002 soft tissue injury was diagnosed. The report of a July 2002 VA examination report shows that the Veteran reported incurring an on the job injury after slipping on ice, and that he continued to collect workmen's compensation for this injury. The Veteran reported that he was also getting SSA disability compensation for his back. He reported two prior lumbar spine surgeries, occurring in 1982 and 1989. Following the examination, diagnoses of status post lumbar laminectomy with residual scar, and degenerative joint disease with limitation of motion were supplied. Pursuant to the Board's remand, the Veteran was afforded a VA examination in April 2013 which included a physical examination of the Veteran and review of his claims folder. The examiner was instructed to consider that the Veteran had been seen in service in 1974 for complaints of left-sided low back pain, and a history of trauma occurring two weeks earlier. The remand also advised the examiner that the July 1975 discharge examination was normal, and that after his service separation the Veteran was shown to have sustained back injuries in 1982, 1989, and 2002. Following the examination and review of the record, the examiner offered three diagnoses: lumbar disc herniation with radiculopathy, lumbar degenerative disc disease, and "SI" (sacroiliac) joint syndrome. The Veteran provided a history of serving in the Army from 1974 to 1975 and he reported back pain beginning in 1992 caused by a herniated disc which occurred without injury. He added he underwent back surgeries in 1982 and 1986 (after a work-related injury). The examiner opined that it was less likely as not (less than 50 percent or greater probability) that the Veteran's back disorders were incurred in or caused by an in-service injury, event, or illness. As rationale for that opinion, the examiner observed that that the claims folder included evidence of well-documented surgery in February 1990 which followed the incurrence of a work-related lifting injury. The examiner did take note of the Veteran's in-service single visit for low back pain for two weeks in June 1974 and observed that there was no in-service follow up treatment noted, and that a strain is likely to resolve over a period of weeks or up to at most one to two months. The examiner further added that the Veteran himself noted that his back pain had started in 1982, eight years after the in-service event. The examiner indicated that the 1982 back pain was due to a disc herniation, which was "much more likely an acute event unrelated to a resolved strain occurring eight years prior." Analysis The only medical opinion to address causation is that offered by the April 2013 VA examiner who concluded that the Veteran's current back disability was not due to service and offered a supporting rationale. To the extent the Veteran asserts his current back problems are due to service, the Board finds that given the particular facts of this case, his condition could have multiple causes and is not a disability for which a lay opinion is competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran testified in May 2009 that his current back problems have been constant since he sprained his lower back in service, and has even alleged that his 1982 back surgery was in effect needed due to his chronic back pain experienced since service, he was first treated for such symptoms in 1982. None of the medical records on file show that the Veteran was treated for his back earlier than 1982 following his 1975 service separation and he does not allege otherwise. While continuity of symptomatology, rather than continuity of treatment is the focus, medical records pertaining to back treatment dated after 1982 include the Veteran's recitation that his initial back injury was in 1982. The records detailing various other post-service back injuries, including some work-related, are silent for any reference to back complaints dating to service, or even prior to 1982. The Veteran has given inconsistent statements regarding the onset of his back problems. Thus the Board finds the Veteran's assertions of continuous symptoms since service are not credible and places no probative value on those reports. Caluza v. Brown, 7 Vet. App. 498 (1995). As for the Veteran's assertion that his lumbar spine problems are the result of exposure to Agent Orange while he was in Vietnam for a week in 1975, service personnel records do not show that the Veteran was ever in Vietnam. His DD 214 shows only foreign duty in Germany and he was not awarded any Vietnam-related medals or commendations. He has offered an inconsistent history of his service; testifying at his Board hearing that he was in Vietnam from January to August 1975, but noting on a January 2002 VA Form 21-526 that he did not serve in Vietnam. Given his inconsistent reports, the Board places no probative value on the Veteran's claims to have been in Vietnam. Nevertheless, none of the Veteran's diagnosed back disorders are included on the list of presumptive diseases associated with exposure to herbicides. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Also, as mentioned above, as the Veteran did not have lumbar spine arthritis which became manifest to a compensable degree within one year after his active service, service connection cannot be awarded on a presumptive basis pursuant to U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Thus, the only competent, credible evidence of record is the April 2013 VA opinion which weighs against the claim. There is no competent, credible evidence of continuity of symptomatology since service or evidence that service connection can be awarded on a presumptive basis. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs