Citation Nr: 1323649 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-44 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from August 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran and his wife testified at a hearing in October 2011 before the undersigned. A copy of the transcript has been associated with the claims file. In February 2012, the Board reopened and the Veteran's service connection claim and remanded this case to the RO via the Appeals Management Center (AMC) for further development. In August 2012 and March 2013, the Board again remanded this case to the RO via the AMC for further development and it has now been returned to the Board. In May 2013, the Veteran submitted a statement in support of his claim without a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). However, there is no prejudice to the Veteran in the Board's adjudication of his claim because his statement simply expressed disagreement with the outcome of his claim and reiterated evidence that was already of record. 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 preponderance of the evidence reflects that the Veteran does not have residuals of a back injury due to any incident of his active duty service. CONCLUSION OF LAW Residuals of a back injury were not incurred or aggravated in service nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in July 2009. This letter advised the Veteran of what evidence was required to substantiate his service connection claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. Attempts were made to secure service treatment records (STRs) from the National Personnel Records Center (NPRC). The NPRC responded that the records were not available and presumed destroyed in the St. Louis fire in 1973. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the Veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 3 Vet. App. 480, 483 (1992). The absence of some or all of his STRs does not obviate the need for the Veteran to have a nexus linking his disabilities to his periods of military service. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The duty to assist provisions of the VCAA have been met. The claims file contains the Veteran's July 1954 separation examination, reports of post-service medical treatment, and the report of a VA examination in March 2012 with a supplemental opinion in September 2012. The March 2012 examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran and his wife testified at a hearing in October 2011. The issue on appeal was clearly set forth. During this hearing, the undersigned suggested the submission of evidence that would assist the Veteran in substantiating his claim. Specifically, the Veteran was asked if the surgeon's report of his June 2006 back operation was of record and the Veteran's representative responded in the affirmative. The undersigned asked the Veteran if he received all medical treatment through VA, and inquired as to whether the RO had attempted to obtain the Veteran's Social Security Administration (SSA) records. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The RO attempted to obtain the Veteran's SSA records. In February 2010, the SSA responded that they were not available because they had been destroyed. This case was remanded in February 2012 so that the Veteran could undergo an examination and records could be obtained. It was remanded again in August 2012 and March 2013 so that additional medical records could be obtained. All available records have been obtained and associated with the claims file. When records were not available, the Veteran was provided with proper notice. He underwent an adequate VA examination in March 2012. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with osteoarthritis, degenerative disc disease of the lumbar spine, a closed fracture of L1, and lumbar radiculopathy. The first element of a service connection claim is met. Hickson, 12 Vet. App. at 253. At his April 2013 hearing, the Veteran testified that in 1954, while serving at Carswell Air Force Base, he took a nap on a bench. While he was asleep, a fellow service member lit a match and placed it in his shoe, startling the Veteran and causing him to fall off the bench. He stated that his back hurt after the fall, and that night he had muscle spasm. He was given pain medication by a medic. After that time, he stated that he has had intermittent back pain and muscle spasm. He self-treated with over the counter pain mediation until the early 1990s when he began to seek medical treatment. He stated that after leaving service, he fell from a ladder and fractured a vertebra and when he underwent a surgical repair, the surgeon told him that they were going to repair an old injury at the same time. The Veteran is competent to discuss observable symptoms such as back pain and muscle spasm after falling from a bench. Layno v. Brown, 6 Vet. App. 465 (1994). Since May 2004, he has consistently reported the incident where he fell off a bench in service. The Board finds his statement credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim has been met. Hickson, 12 Vet. App. at 253. However, the nexus element of a service connection claim is not satisfied. Id. The Veteran underwent a VA examination in March 2012. As noted above, the examiner diagnosed the Veteran with osteoarthritis, degenerative disc disease, a closed fracture of L1, and lumbar radiculopathy. The Veteran credibly reported his in-service injury as discussed above. After examining the Veteran, the examiner provided a negative opinion. She explained that the Veteran's separation examination was negative for a back injury. The first documentation of a back problem was 40 years later, in 1993. During that time, the Veteran had worked as an engineer/mechanic for an airline company. He retired from his job in 1994 because he was no longer able to meet the physical demands of his job. The examiner noted that back pain was not mentioned again until June 2006 when he fell from a ladder and sustained a compression fracture of L1. A review of the CT scan performed at the time of his fall confirmed an L1 fracture and suggested a diffuse bulge at L3-4 and L4-5. A CT scan from June 2011 notes residuals of an L1 vertebroplasty with diffuse disc bulges and no evidence of nerve impingement at any level. The examiner concluded that "[t]hese findings are more in line with the natural progression of aging that a remote injury nearly 60 years ago." The findings of the VA examiner provide probative evidence against the Veteran's claim. The examiner's September 2012 supplemental opinion was identical to the March 2012 opinion. In its remand, the Board instructed the RO to seek a new opinion if additional records were obtained. Even though no additional records were obtained, a supplemental opinion was sought and because there was no additional evidence, the examiner's opinion did not change. Private medical records from June 2006 show that the Veteran fell from a ladder and injured his back. The emergency room physician's impression was acute low back pain with a fracture of L1, status post fall. He was admitted to the hospital, provided with pain medication, and his VA physician was called for a consultation. An x-ray revealed a 40 percent wedge compression fracture at L1. L2-L5 were of normal height and alignment. A CT scan revealed curvilinear lucencies consistent with a fracture of L1, with a diffuse bulge at L3-L4 and L4-L5. Dr. J. R., in his operative report, stated that the Veteran had a history of chronic low back pain. He informed the Veteran that the surgery was unlikely to resolve all of his symptoms, but he was hopeful that it would improve his recent acute pain due to a fall. The June 2006 records do not provide probative evidence in support of the Veteran's claim. They show that he sustained a post-service injury and had a history of chronic back pain prior to that time, but they do not provide a nexus between the Veteran's current back disability and his period of active service. The Veteran asserts that his current back disability was caused by his in-service injury. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his current back disabilities are the result of an injury sustained in 1954, 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). The Veteran's lay statement is afforded less probative weight than the findings of the VA examiner. There is no other evidence of record that addresses whether there is a nexus between the Veteran's 1954 injury and his current disabilities. The Veteran has asserted that his current low back disabilities manifested in service and that he has experienced symptoms continuously since that time. He has been diagnosed with arthritis, which is chronic condition as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is applicable in this case as to that diagnosis alone. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran stated that since his in-service injury, he had intermittent back pain and spasm, including during service. He stated that when he was deployed to North Africa, he had difficulty lifting his tool bag into the plane because of back pain. The Veteran stated that he did not seek treatment for his back until 1993 because he used exercise and over-the-counter medications. He sought treatment in 1993 but stated in August 2012 that after that, he became "gun shy" and avoided treatment until he fell from a ladder in June 2006. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. However, the Board may consider a lack of contemporaneous medical evidence of a back disability for approximately 40 years as one factor in determining the credibility of lay evidence. Id. at 1337; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran's assertion of continuity of symptoms since the injury in service is contradicted by his July 1954 separation examination, where his spinal examination was normal and no back injury or disability was noted. This physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and their resulting objective findings. It was generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Further, the Veteran did not file a claim for his low back disability until May 2004, fifty years after separation. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). To the extent the Veteran maintains that he developed his current back disability during his service, in other words, that it incepted during his service, and that he has continued to experience a back pain (i.e., continuity of symptomatology) since his discharge from service, his lay statements are considered competent evidence when describing the features or symptoms of an injury or illness. Layno v. Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). But that notwithstanding, the current back disability which includes osteoarthritis is not a disability capable of mere lay observation in terms of its diagnosis and etiology; that is to say, the diagnosis is based on objective rather than subjective data, and it is not just a "simple" condition such as a separated shoulder, broken arm, varicose veins, pes planus (flat feet) or tinnitus (ringing in the ears) allowing for probative lay comment concerning it, including insofar as when it incepted. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For these reasons, the Board finds that a grant of service connection based upon continuity of symptoms is not warranted. 38 C.F.R. § 3.303(b). Moreover, while at his October 2011 hearing, the Veteran's wife testified that they had been married for 20 years and that during that time he complained of back pain every three to four months, this statement does not support a finding of continuity of symptoms since service. Rather, it shows that the Veteran has experienced back pain periodically since approximately 1991. Lastly, the Veteran's allegation that his current back disability is related to service and/or to the reports of periodic back pain over the years has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim for service connection for residuals of a back injury must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). (Continued on the next page) ORDER Service connection for residuals of a low back injury is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs