Citation Nr: 1323791 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-03 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to January 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the Veteran's application to reopen his previously denied service connection claim for a low back disability. In April 2011 the Board reopened the Veteran's claim. It was remanded for additional development in April 2011 and in August 2012. The Board finds substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This Board decision is based on review of the Veteran's claims file and Virtual VA electronic claims file. FINDING OF FACT The Veteran injured his low back during service, but his current low back disability is not related to the inservice injury or to any other event of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.71a, Diagnostic Codes 5003-5010 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2012). VA must notify the claimant and his representative prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that a rating and an effective date will be assigned if the benefit sought is granted also must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found. The Veteran and his representative were notified of the criteria for establishing service connection, the evidence required, his and VA's respective duties for obtaining evidence, and how VA determines a rating and effective date if service connection is awarded in an April 2008 letter. Notice was provided prior to the initial adjudication by the RO in a July 2008 rating decision. Nothing more is needed to satisfy the duty to notify. Even if a notice content or timing defect existed, it is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this claim. The essential fairness of adjudication has not been impacted. In addition to the duty to notify, VA has a duty to assist claimants with respect to claims for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA is required to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2012). VA also is required to provide a medical examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). VA has obtained the Veteran's service medical records, VA treatment records, and Social Security Administration (SSA) records. The most recent VA treatment records and the SSA records were obtained in compliance with the Board's remands. No private treatment records have been obtained by VA because none have been identified by the Veteran. He has had opportunities to identify any addition records, to include the opportunity to respond to an April 2011 letter sent to him pursuant to the Board's first remand. However, has not done so. A VA medical examination was conducted and a VA medical opinion obtained in May 2011, as directed by the Board's first remand. Neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any further development. The Board finds that the duty to assist has been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As both the duty to notify and the duty to assist have been satisfied, adjudication may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a) (West 2002); 38 U.S.C.A. § 1131 (2012). To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d) (2012). Arthritis is a chronic disease. 38 U.S.C.A. § 1101(3) (West 2002); 38 C.F.R. § 3.309(a) (2012). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. 38 C.F.R. § 3.303(b) (2012). Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran must have served 90 days or more during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. § 3.307(a)(1) (2012). Manifestation of the chronic disease, though not necessarily diagnosis, also must have been to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1) (West 2002); 38 C.F.R. §§ 3.307(a)(2-3), (c) (2012). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease must be taken into consideration even if the aforementioned requirements are met. 38 U.S.C.A. §§ 1113, 1153 (West 2002); 38 C.F.R. §§ 3.307(d), 3.309(a) (2012). The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors in assessing a medical opinion include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). A lay person is competent to relate observations or that which is within his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). Credibility factors to take into consideration with respect to lay testimony and statements include interest, self-interest, bias, inconsistency, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). Lay testimony and statements cannot be deemed not credible merely because there is no supporting contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of supporting evidence, along with other factors, may lead to that conclusion. When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the Veteran. The Veteran prevails when the evidence supports his claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although all the evidence has been reviewed, only the most relevant evidence is discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board finds based on the evidence that service connection for a low back disability is not warranted. The necessary requirements for establishing entitlement to that benefit indeed have not been met. It is undisputed that the Veteran currently has a low back disability. A current disability exists when there is a disability either at or contemporary to the time the claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in February 2008. Since then, VA treatment records have documented diagnoses of lumbago and chronic low back pain. Pain, without an underlying condition, does not in and of itself constitute a disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Yet underlying conditions have been diagnosed. In particular, degenerative arthrosis and degenerative disc disease (DDD) of the lumbar spine were diagnosed at the May 2011 VA medical examination. Also undisputed is that the Veteran served more than 90 days after December 31, 1946. His service spanned almost three years, and almost all was in the late 1970s. While he has been diagnosed with DDD, there is no indication that he had arthritis, DDD, or any other condition similar to arthritis to a compensable degree in the year following his separation from service. Neither the Veteran nor his representative has contended that. Such a contention, in any event, would be insufficient. The Veteran and his representative are lay persons because neither has a medical background. Arthritis generally must be established by X-rays. 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010 (2012). Therefore, lay persons are not qualified to diagnose it. No X-rays dated between January 1980 and January 1981 are of record. There are no treatment records discussing X-ray findings, whether VA or otherwise, dated during that period. There are no treatment records dated during that period whatsoever. Accordingly, service connection for arthritis cannot be presumed. With respect to establishing service connection, service medical records show that the Veteran's spine was found to be normal at his November 1976 entrance examination. Nothing suggests that finding was inaccurate. The Veteran denied arthritis and back pain at that examination. There are no treatment records dated prior to his service. Therefore, his low back is presumed to have been in sound condition when he began his service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). It follows that there was no preexisting injury or disease that could have been aggravated during service. Incurrence of an injury or disease during service is undisputed. The Veteran injured his low back during service. In March 1977, he was diagnosed with possible pulled back muscles. In April 1977, he was diagnosed with back muscle strain. There is no indication of chronicity during service. While the Veteran ultimately was diagnosed with DDD of the lumbar spine, he is shown to have had low back injuries rather than a low back disease during service. Service medical records note that the Veteran, in addition to being seen in March and April 1977, was seen in the emergency room due to his low back in April 1977. He thus was seen three times within a period of two months. In the over two years he was in service thereafter, he was not seen at all regarding his low back. The Veteran denied arthritis and back pain at his December 1979 separation examination. His spine was found to be normal at that time. Therefore, the Board finds that a chronic disability was not shown in service. There also is no indication of continuity of symptomatology. Neither the Veteran nor his representative explicitly has contended that. To the extent the Veteran implicitly contends that in his statements, they are competent because his symptoms would have been personally experienced by him. Yet his statements are not credible. He did not complain of any back problems at separation and none were found on examination. Furthermore, there is insufficient evidence to corroborate any claim of continuity of symptomatology. Continuity of his symptoms is inconsistent with the evidence of record. Treatment would be expected had the Veteran experienced continued symptoms because he sought treatment after each of his injuries. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Continuity of his symptoms is also inconsistent with his denial of symptoms at his separation examination. The denial is more meaningful than any recount to the contrary now because it was made contemporary to the time of the Veteran's service. Curry v. Brown, 7 Vet. App. 59 (1994). Further, no support exists for continuity of the Veteran's symptoms post-service. There are no statements from individuals, whether family, friends, or otherwise, with knowledge of his symptoms following service. Significant gaps exist in the contemporaneous records and are for consideration. Maxson v. West, 12 Vet. App. 453 (1999). An April 1987 VA treatment record is the first documentation of low back treatment. That record, which is dated more than seven years following the Veteran's separation from service, alludes to rather than directly concerns back treatment. The first records directly concerning back treatment are SSA records dated in September 1997. Thereafter, only after more than 17 years following the Veteran's separation from service, VA treatment records document essentially ongoing low back treatment. Finally, the Veteran's self-interest in monetary gain cannot be ignored. The probability that service connection will be granted increases if continuity of symptomatology is found. A grant potentially could result in the payment of compensation benefits. The Veteran clearly believes there is a relationship between his current low back disability and his low back injuries during service. Lay statements or testimony can be sufficient to prove nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the question of whether there exists a service relationship in this case falls outside the province of a lay person. It is a medical question. Of import in this regard are the numerous causes of low back disabilities, the number of years since the Veteran's service, and the complexities of the spine. Of particular import is that, in addition to his low back injuries during service, he suffered a low back injury post-service. Specifically, SSA records and VA treatment records show that he underwent several operations after sustaining an L2 burst fracture resulting in incomplete paraplegia in September 1997. Only those with a medical background are competent where the determinative issue is one of medical causation. Jones v. West, 12 Vet. App. 460 (1999). Therefore, the Veteran is not competent to render an opinion that there exists a relationship between his current low back disability and his low back injuries during service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lacking competence, the credibility of those assertions need not be addressed. One medical opinion about the relationship between the Veteran's current low back disability and his low back injuries during service exists. The physician who conducted the May 2011 VA medical examination opined in certain terms that the Veteran's current low back disability was less likely as not caused by or a result of his service. That opinion was made after review of the Veteran's claims file. The Veteran gave an accurate account of his medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). The aforementioned opinion also was made following interview of the Veteran regarding his current symptoms and an assessment that included visual inspection, evaluation of the muscles, consideration of performing range of motion (which could not be done due to his paraplegia), X-rays, and tests of extremity reflexes, sensation, and motor function. No deficiency is found with the scope of that assessment. It accordingly follows that the Veteran's current low back disability was described in sufficient detail as required. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Therefore, the argument of the Veteran's representative to the contrary in a July 2012 statement is rejected. The Board finds that enough was known about the Veteran to ensure that the opinion made was not based on an inaccurate factual premise. The supplied rationale, while succinct, confirms the accuracy of the underlying factual premises. It was noted that the two instances of low back muscle problems during the Veteran's service were minor and would not be enough to have lead to his current severe disability. It also was noted that this severe disability was far more likely caused by the L2 burst fracture in 1997. That the Veteran sustained low back injuries during service and that he sustained a low back injury post-service has been established. Continuity of symptomatology was not noted and has been not been established. Even if it had been established, the rationale for an opinion need not include a discussion of favorable evidence. Thompson v. Gober, 14 Vet. App. 187 (2000). Weighing all the evidence, both favorable and unfavorable, is the responsibility of the adjudicator. Roberson v. Shinseki, 22 Vet. App. 358 (2009); Moore v. Nicholson, 21 Vet. App. 211 (2007). The examination complete with opinion has provided sufficient detail so that the decision made herein is fully informed. It thus is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's representative disputes the adequacy of the opinion in the July 2012 statement. Specifically, the representative indicates that it is inadequate because no basis was provided for the conclusion that the Veteran's current low back disability is attributable to his 1997 accident. That argument is rejected because a basis was provided. The examiner determined that a severe low back injury caused the Veteran's severe current low back disability, and that the inservice injuries were not severe enough to cause the current disability. His low back injuries during service were characterized as minor, but his post-service low back injury implicitly was characterized as severe. No other challenge to the adequacy of the opinion has been made by the Veteran or his representative. Accordingly, it stands as the most persuasive evidence of record. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs