Citation Nr: 1323652 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-31 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from August 1953 to June 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April, July, and November 2012, and April 2013, the Board remanded for additional development and due process concerns. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. 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). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's lumbar spine disorder, to include degeneration of the lumbar spine, has not been shown to be causally or etiologically related to the Veteran's military service. CONCLUSION OF LAW A lumbar spine disorder, to include degeneration of the lumbar spine, was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION DUTIES TO NOTIFY AND ASSIST VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of 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. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in May 2013. The letter addressed all of the notice elements, although it was not sent prior to the initial unfavorable decision by the RO in January 2011. The claim, however, was subsequently readjudicated in a June 2013 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Moreover, any defect in the timing of the May 2013 notice was harmless error as service connection is being denied on the merits, and no rating or effective date is being assigned. Therefore, the Board finds that VA has fulfilled its duty to notify. VA has also satisfied its duty to assist the Veteran at every stage of this case. All available service treatment records, which includes only the separation examination report, as well as all identified post-service VA medical records pertinent to the years after service, and the Veteran's and his spouse's lay statements are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Unfortunately, the Veteran's service treatment records and service personnel records have been reported to be 'fire-related.' See February 2010 and June 2010 communications from the National Personnel Records Center (NPRC). The Veteran was sent a letter in May 2010 regarding the unavailability of his service treatment records, which included an NA Form 13055. The Veteran returned this form, after which another attempt was made to obtain records. The June 2010 response indicated that while there are alternate sources that can be used to reconstruct parts of a lost service record, the complete service record cannot be reconstructed. The Veteran's June 1955 separation examination was obtained and added to the claims file. The Board recognizes that there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Where service treatment records were destroyed, a veteran is competent to report on factual matters about which he had firsthand knowledge, including in-service injury, experiencing pain during service, reporting to sick call, and undergoing treatment. Washington, 19 Vet. App. at 368. A VA examination was obtained in August 2012, followed by addendum opinions in December 2012 and May 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2012 report was deemed inadequate because the examiner failed to review the complete record, to include the treatment records in the Veteran's Virtual VA file. While the December 2012 addendum was not deemed inadequate, the matter was remanded in order for additional treatment records to be obtained, after which the May 2013 opinion was obtained based upon review of the complete evidence of record. The May 2013 report clearly indicates that the Veteran's VA medical records that are not a part of the paper claims file were reviewed. Following the additional development and addendum reports, the Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file and take into consideration the Veteran's and his spouse's competent lay statements regarding the onset, frequency and severity of his lumbar spine symptoms and their history. These opinions, when considered as a whole, take into account all of the pertinent evidence of record, to include the Veteran's service and post-service records and his lay statements, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. There is adequate medical evidence of record to make a determination in this case. VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC (statement of the case) and SSOCs (supplemental statements of the case), which informed them of the laws and regulations relevant to this claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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 establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) . Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period 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. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran has perfected the claim as to whether he is entitled to service connection for a lumbar spine disorder. The Veteran contends that he has a lumbar spine disorder as a result of an in-service incident in Fairbanks, Alaska, during which he jumped off of a military vehicle while involved in a field exercise. He contends that ever since that in-service incident that he has experienced back pain, which he believes manifested into his currently diagnosed lumbar spine arthritis. See the Veteran's May 2010 written statement. The Board does not doubt that the Veteran has a current lumbar spine disability. The first evidence of treatment is in the VA treatment records in a rheumatology consult dated in April 2006, at which time the Veteran sought treatment related to pain in several joints, to include the lumbar spine. The physician noted that she suspected degenerative changes of the lumbar spine, but that no films were available. X-rays were ordered. The notes from a follow up visit in August 2006 refer to a May 2005 x-ray report, which is presumably a typographical error as the Veteran was referred for these x-rays in April 2006. Nonetheless, the August 2006 rheumatology clinic report confirms the presence of spondylolisthesis affecting L5-S1, as well as advanced degenerative disk disease at L5-S1, with mild degenerative changes at the rest of the lumbar spine. Moreover, in August 2012, the VA examiner reported the results of a November 2008 MRI, which confirmed grade I/II anterolisthesis of L5 on S1 secondary to bilateral spondylolysis at the same level; mild to moderate recess stenosis at L4-5; mild lateral recess and neural foraminal stenosis at L2-3 and L3-4; and degenerative disc disease at L1-2. Thus, the initial element for establishing service connection, the existence of a current disability, is clearly met in this case. The question is whether the current lumbar spine disabilities were caused by, aggravated by or are otherwise due to an event of the Veteran's active service. As noted above, the service treatment records in this case are fire-related. The Board notes that the United States Court of Appeals for Veterans Claims has held that in cases where the appellant's service treatment records are unavailable, through no fault of the appellant, there is a 'heightened duty' to assist the appellant in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the Board finds that the most persuasive evidence of record in this case weighs against service connection. Following the Veteran's submission of NA Form 13055, the RO did attempt to reconstruct, to the extent possible, the Veteran's service treatment records. The only portion available was the June 1955 Report of Medical Examination at the time of the Veteran's separation from service. This single document, however, provides important information in relation to his claim. The Veteran's spine was noted as normal at the time of separation. There are no indications of symptoms at the time of separation, and assuming arguendo that the in-service incident the Veteran describes did occur, this separation report shows that there was no sequelae remaining at the time of separation. Nonetheless, service connection is possible despite the absence of symptoms at the time of separation if it can be otherwise shown that the Veteran's current lumbar spine disability is related to his active service. Again, the Veteran reports that he fell from a vehicle during service, and he contends that incident caused the initial manifestation of his current lumbar spine arthritis. At the time of his August 2012 VA examination, the Veteran reported to the examiner that he experienced immediate pain to his back following the fall in-service, that he saw a medic two days later, and that "he was discharged from service because of the back pain." However, as noted above, there was no indication of any spine abnormality on the separation examination report. Moreover, there is no indication of any sort of medical discharge on the Veteran's DD Form 214. Rather, it is noted that he was released from active duty and transferred to the Army Reserve to complete eight years under the Universal Military Training and Service Act. There is no indication as to limitation to his duty due to a back disorder. There is simply no indication of abnormality or symptoms of any sort in the two available service records. The Board will, however, analyze this claim under the assumption that a fall from a vehicle in service did, in fact, occur. The question is whether the current degenerative disc disease is related to that fall. The first report of back pain in the VA treatment records is found in an April 2006 rheumatology consultation. The Board observes that this is more than fifty years following the Veteran's 1955 separation from active service. The Veteran has made no contention that he received treatment prior to this time. Thus, the Board finds that there is an absence of treatment from the time of the Veteran's separation from service for more than fifty years, which weighs against the establishment of service connection. In August 2012, the VA examiner noted an absence of treatment between the Veteran's service and August 2008, which is inaccurate by approximately two years. The examiner reported that the lack of evidence of a chronic condition for the many years that followed service was the reason for the determination that the current degenerative disc disease was less likely than not due to the claimed in-service incident. In December 2012, an addendum report was completed by the same VA examiner following review of the record, including all lay statements and VA medical records. At this time, the examiner again noted the initial treatment as 2008, and again reported that due to the lack of evidence for so many years, the opinion was unchanged. In May 2013, following the receipt of additional VA treatment records, the same examiner again reviewed the claims files and submitted an addendum report. At this time, the examiner correctly reported the initial treatment shown in the record of April 2006. The examiner noted the report of a May 2005 x-ray examination as a typographical error, but noted that even if records in 2005 showed a lumbar spine disability for the first time, "due to the paucity of evidence from 1954 [the date the alleged in-service incident occurred] to 2005, which is 51 years, it is extremely difficult to establish a nexus connection between [the] claimed injury and the current lumbar spine condition." Thus, the examiner concluded, based upon a review of the Veteran's VA treatment records and the lay statements made by the Veteran and his wife related to in-service back pain, that the current lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury. The Board is also aware that the Veteran reported that he experienced back pain at the time of the fall in service and that he has experienced back pain ever since. Moreover, the Veteran's wife, in June 2010, submitted a statement noting that she married the Veteran in August 1955, just three months following his separation from service and that ever since they were married, the Veteran has had "lower back problems." She also reported, "I know for sure he hurt it when he was in Alaska." In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to describe his symptoms, whether the symptoms the Veteran experiences are in any way related to his current disabilities is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Likewise, neither the Veteran, nor his wife in this case have the medical expertise required to determine whether his lumbar spine degenerative disc disease, or any other lumbar spine disability, was incurred in service or incurred due to any in-service incident. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the in-service back pain, as reported by the Veteran and confirmed by his wife, can have many causes, and medical testing and medical expertise are needed to determine nature and etiology. The Board accepts that the Veteran experienced back pain in service. However, this fact does not establish that the Veteran had lumbar spine degenerative disc disease in service, or that the back pain in service was the initial manifestation of the later diagnosed lumbar spine degenerative disc disease. Thus, the Board finds that the Veteran is not competent to render a medical opinion on the onset and etiology of his current lumbar spine disability. The VA examiner's opinions are the only medical opinions, based upon a review of the complete claims file, addressing the relationship between the current disabilities and active service. Thus, such medical opinions are of greater probative value than the Veteran's lay contentions. Id. Further, the Veteran is making a claim that service connection is warranted based upon symptoms experienced in service, which have continued ever since. In that the current diagnosis is arthritis, the Veteran's and his wife's statements appear to raise a claim for presumptive service connection for a chronic disease manifesting within one year of service under 38 C.F.R. § 3.309(a). The Veteran essentially contends that the back pain he remembers experiencing during service was the initial notation of his current lumbar spine arthritis. The Veteran's wife's statement also suggests that the Veteran's arthritis existed within the year following his service. However, as noted above, neither the Veteran nor his wife are competent to report that the symptoms he experienced in service and during the year immediately following separation can be deemed the initial notations of arthritis. While both the Veteran and his wife are competent to report that the Veteran experienced back pain in service, neither are noted as medical professionals such that they could be deemed competent to opine that the back pain experienced in service was arthritis. As noted above, even the physician that oversaw the rheumatoid consultation in April 2006 found that x-rays were needed in order to confirm the accurate diagnosis to attach to the Veteran's complaints of back pain. Thus, as a medical professional deemed x-rays required to assess the diagnosis, the Board finds that the Veteran and his wife's lay opinions are simply not competent to establish that the report of back pain in service can be deemed a notation of arthritis in service. Moreover, the VA examiner considered the lay statements and was aware of the Veteran's reports of pain in service and since, but was unable to find that the current lumbar spine degenerative disc disease initially manifested in service due to the paucity of evidence from the time of service for the more than 50 years thereafter. Consideration of this claim on the basis of continuity of a chronic disease noted in 38 C.F.R. § 3.309 is, therefore, not warranted, as there was no notation of arthritis in service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In conclusion, the competent evidence does not reveal a nexus to lumbar spine degenerative disc disease, or any other lumbar spine disability, occurring in service. Further, the competent evidence does not indicate that the Veteran had an initial notation of lumbar spine arthritis during service or within the year following his separation. While the Board has considered the Veteran's lay contentions as to the etiology of his current disabilities, the Board has accorded greater weight to the balance of the probative medical evidence of record. Although the Veteran might sincerely believe that his lumbar spine disabilities are related to service, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. As such, service connection must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309. 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 Veteran's claim, that doctrine is not applicable concerning this issue. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a lumbar spine disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs