Citation Nr: 1323461 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-04 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Veteran and Ms. SCM ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION 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). The Veteran served on active duty from October 27, 1977, to November 21, 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for a low back disorder. In a December 2008 decision, the Board determined that reconsideration of the claim was required, based on receipt of additional relevant service treatment records and remanded the matter for further development and consideration. 38 C.F.R. § 3.156(c), The Veteran testified at personal hearings before a Veterans Law Judge in March 2008 and again in January 2012. Transcripts of the hearings are associated with the claims file. Each hearing, before different presiding Judges, involved the appellate issue. A panel decision of three Veterans Law Judges is therefore required. 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3. Any Judge who conducted a hearing must participate in the decision on appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. The Veteran was offered the option of a third hearing, before a third Veterans law Judge, in April 2012 correspondence. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran failed to respond, and is presumed to not desire an additional hearing. Most recently, in June 2012, the Board remanded the matter to the RO for additional development. FINDING OF FACT The Veteran's back disability did not originate in service or for many years thereafter and is not related to any incident during active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1131, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in May 2006, January 2009, August 2012, and December 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in February 2009. 38 C.F.R. § 3.159 (c) (2). At the time of the June 2012 remand, the Board found that there was insufficient evidence to warrant scheduling of a VA examination. While there was evidence of a current back disability, there was no competent and credible evidence of an injury in service, or of the reasonable possibility of such. 38 C.F.R. § 3.159. The June 2012 remand directed that if, and only if, additional information tending to corroborate the Veteran's statement regarding an in-service injury was discovered, a VA examination to obtain a medical opinion with respect to a low back disability was required. Despite the RO's compliance with the directives for additional development, no evidence to corroborate the occurrence of an in-service injury was obtained. Nevertheless, the RO scheduled the Veteran for a VA examination in November 2012. The Veteran however, failed to report for the examination, and the RO readjudicated the claim based on the evidence already of record. See 38 C.F.R. § 3.655. Although a June 2013 letter from the Veteran's representative notes the Veteran failed to report for the examination "For good cause and reasons beyond his control," VA was not statutorily obligated to provide an examination with respect to the claim of entitlement to service connection for a low back disability. Then and now, there is no competent and credible evidence of an injury in service, or of the reasonable possibility of such. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As discussed below, there is already medical evidence that the Veteran currently has a back disability. The record, however, is missing critical evidence, that an injury or disease was incurred in service, McLendon element (2), and the Veteran's claim is being denied on that basis. The outcome of this case thus hinges on matters other than those which are amenable to VA examination and medical opinion. Specifically, resolution of the Veteran's claim hinges directly or indirectly upon whether he suffered an in-service injury or disease. As discussed below, the Board finds the Veteran's assertions of in-service back injury to be not credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In the absence of evidence of in-service disease or injury, referral of this case for an opinion as to etiology would place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's claimed disability and his military service would necessarily be based solely on the Veteran's uncorroborated assertions regarding what occurred in service. A medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. With respect to the third McLendon element, association with service, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuing symptoms such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The competent evidence of record does not demonstrate an association between the Veteran's service and his diagnosed back disability. The Board has carefully considered the Court's language in McLendon - that the threshold for showing this association is a low one. However, the Court's language makes it clear that there is in fact a threshold. To the extent that treatment records note a history of chronic back pain, a transcription of the Veteran's self-reported medical history is not transformed into competent medical evidence simply because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Significantly, the Veteran has stated that his back disability began in 1991, many years after he separated from service. Only the Veteran's contentions provide any suggestion of such association, and the Board does not find the Veteran's contentions to rise to the level of the "indication of an association" referred to in 38 U.S.C.A. § 5103A or in McLendon. If a Veteran's mere contention, standing alone, that his claimed disability is related to his service is enough to satisfy the "indication of an association," then that element of 38 U.S.C.A. § 5103A is meaningless. An interpretation of a statute that renders part of the statutory language superfluous is to be avoided. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ["canons of construction require us to give effect to the clear language of statute and avoid rendering any portions meaningless or superfluous"]. It is clear that more than the mere contention of the Veteran is required under McLendon to satisfy this element of the test. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case, there is no credible evidence of in-service disease or injury. Under these circumstances, the Board finds that a remand to obtain a medical opinion would serve no useful purpose. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He was afforded two Board hearings. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (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). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For disabilities set forth at 38 C.F.R. § 3.309(a) such as arthritis, when a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. See 38 C.F.R. § 3.303(d). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran alleges that during boot camp, he fell while attempting to climb a rope, and injured his low back and right hip. He has testified that he spent two weeks in the hospital recovering, and was then medically discharged due to the injury. There has been no assertion of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. The evidence establishes that the Veteran has a current back disability to include lumbar spine degenerative disc disease. Thus, the issue is whether a current back disability is related to disease or injury incurred in service, a determination for which competent evidence is required. The Veteran is competent to report having sustained a back injury during service. Competence and credibility are to be distinguished. The Veteran has reported that he was hospitalized at both Camp Lejeune, North Carolina, and at Balboa Naval Hospital, located in San Diego, California. Service records document the Veteran spent his entire 25-day active duty period at Parris Island, South Carolina. Complete service treatment records show no back injury, or any treatment or complaint related to back problems. The September 1977 separation examination report shows that the spine and musculoskeletal system were normal. On the accompanying medical history, he specifically denied having or having had recurrent back pain. The sole incident for which treatment was offered during service was an episode of hyperventilation in November 1977. It was noted that he felt sick, and stated he did not feel like completing his training. He complained of asthma, but made no mention of any back problems or injuries. Within one week, the Veteran was recommended for discharge due to an immature/hysterical personality. He was noted to be unmotivated, belligerent, and disrespectful, and was not suited for retention. There is no mention of any back injury or problem of any kind. The service department, through the National Personnel Records Center (NPRC), certified in December 2007 that there were no records of hospital treatment at Balboa, physical profile, physical or medical evaluation boards, or absences from training for hospitalization. In July 2012, the NPRC certified that there were no inpatient clinical records for a low back disability at either Balboa or at Camp Lejeune. Further diminishing the Veteran's credibility are post service statements and actions. For example, a December 1991 private report of examination notes the Veteran entered the office walking normally, established that he was in the correct place for his appointment, and only then displayed an exaggerated limp. The examiner stated the Veteran's reliability was questionable due to exaggeration of physical problems. Although not bound by a Social Security Administration (SSA) determination, the Board has given consideration to the SSA records and determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim). An August 1993 SSA determination reflects disability began in 1991, and although determined to be primarily due to back disorders, concern with respect to exaggeration of back pain was noted. Regardless, the records do not establish a back injury during service. In a November 1996 statement in association with a Supplemental Security Income (SSI) benefits determination, the Veteran again reported back pain had its onset in 1991. A November 1996 private evaluation report reflects that although the Veteran stated he required a cane for ambulation, he would be able to stand and/or walk with normal breaks for a total of at least two hours in an 8 hour work day. The impression of x-ray examination of the lumbosacral spine was slight narrowing of L5-S1, and no significant arthritic changes were noted. Exaggeration of the severity of back pain was noted. Although a November 1996 private psychiatric evaluation report reflects the Veteran's report of having injured his back in 1979, the examiner stated there was no medical documentation pertaining to the claimed back injury. Questionable hallucinatory experiences were noted. Although a November 1999 Erlanger Health Systems record reflects the Veteran's statement to the effect that he was unable to work because of back pain, nothing abnormal was reported on physical examination. Questionable secondary gain was noted. The Veteran's inconsistent statements, coupled with negative service records, cast significant doubt on whether an in-service back injury occurred, and the Board finds the Veteran's account of the back injury to be not credible. Further, and although the Veteran has indicated he has had back pain since service, an August 1995 record reflects his report of hurting his back while cutting his father's lawn and a November 1996 record reflects his report of having injured his back when he fell in the rain. The impression of x-ray examination of the thoracic spine in August 2005 was no acute thoracic abnormality other than mild right scoliosis. The Board finds the Veteran's account of a back injury during service and continuity of back symptoms ever since to be not credible in light of his conflicting account as to the onset and chronicity of these problems. The competent and probative evidence does not establish that a chronic back disorder, to include lumbar spine degenerative disc disease, was manifested during service or within the initial year after separation, or that there is any causal relationship between the current degenerative disc disease and any injury during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In reaching a determination, the Board has accorded significant probative value to the reliable contemporaneous service records which are negative for a back injury, and the post service treatment records, which do not reflect a back disorder until many years after service. Such is far more probative than the Veteran's remote, inconsistent, lay assertions. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for a low back disability is not warranted. ORDER RONALD W. SCHOLZ S.L. KENNEDY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ L. HOWELL Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs