Citation Nr: 1323808 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-39 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a chronic spine disability. WITNESSES AT HEARING ON APPEAL Appellant, spouse, and daughter ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from September 1958 to August 1960. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in February 2011 and December 2012. This matter was originally on appeal from an April October 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In November 2010, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. In June 2010, the Veteran requested that a claim for posttraumatic stress disorder (PTSD) due to military sexual assault be reinstated (or in the alternative reopened). As the Veteran's request has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it; and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's back disability, to include degenerative joint disease of the lumbar spine, grade 1 anterior spondylolisthesis, L4 and L5, and moderate canal stenosis at L4-L5, manifested years after the Veteran's discharge from service, and is not otherwise shown to be etiologically related to service by credible evidence. CONCLUSION OF LAW A chronic back disability, to include degenerative joint disease of the lumbar spine, grade 1 anterior spondylolisthesis, L4 and L5, and moderate canal stenosis at L4-L5, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's February 2011, March 2012, and December 2012 Remands, the Appeals Management Center (AMC) scheduled the Veteran for a VA examination to determine the nature and etiology of any current spine disorders, requested an Addendum opinion for the VA examination conducted in March 2011, obtained treatment records identified by the Veteran, requested that Dr. W.D.H. provide information as to his recollections of his treatment and evaluation of the Veteran and whether or not he was able to make a comment as to the likelihood of the Veteran's current back difficulties being related to his active service, attempted to obtain the Veteran's personnel and service medical records, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2011, March 2012, and December 2012 Remands. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 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 claimant and his or her representative, if any, 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. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. A July 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. The July 2007 letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA and private treatment records have been obtained and considered. Regrettably, the National Personnel Records Center (NPRC) has indicated that the Veteran's service treatment records and personnel records were destroyed a fire and were therefore unavailable. The Veteran submitted requests for information needed to reconstruct medical data to the National Archives and Records Administration. He was informed in May 2013 that no such records were available. He has not indicated there are any additional records that VA should seek to obtain on his behalf. When there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Moreover, during the November 2010 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran [and his representative] to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA examinations in March 2011 and March 2013. 38 C.F.R. § 3.159(c)(4). In an April 2013 Addendum opinion, the March 2013 VA examiner addressed the etiology of the Veteran's current spine disorders in conjunction with a review of the claims file and physical examination of and interview with the Veteran. The March 2011 VA examination report and April 2013 Addendum opinion are thorough; thus this examination is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (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.) Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In this case, the Veteran contends that he injured his back while lifting at McGuire Air Force Base. Even assuming this to be true, the Board cannot conclude a "chronic" spine condition was incurred during service. Treatment for a disorder in service cannot be considered treatment for a chronic disorder unless there is some indication that a chronic disorder exists. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Arthritis can be service-connected on such a basis. However, the record is absent any diagnosis of arthritis within a year following the Veteran's discharge from service. The Board notes that a May 1972 x-ray showed no evidence of intrinsic or metastatic bone disease. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Although the appellant reports continuity of post-service symptoms, the Board finds his allegations to be of limited probative value. The file contains no records of treatment the appellant received between his date of discharge and 1972 when an x-ray of the lumbosacral spine demonstrated narrowed disc space at the L5-S1 disc space and sclerotic change at both sacroiliac joints. The Veteran was admitted to the hospital in January 1974 with acute herniation of the nucleus pulposus L4-5 and was discharged with diagnoses of ankylosing spondylitis of the lumbar and dorsal spines. A statement dated in June 1974 from Dr. R.D. indicates that narrowing of the L5 S1 disc space was found on x-ray done in May 1972 during a pre-employment physical. In addition, in adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of any back problems until 1972, more than 10 years after the Veteran's discharge from service. In addition, the Board notes internal inconsistencies in the Veteran's statements. In September 1973, the Veteran and his wife submitted a statement that while in Saudi Arabia, he went to a doctor who also did not x-ray his back but diagnosed arthritis. In August 2006, the Veteran stated that he received inpatient treatment in Saudi Arabia. In November 2010, the Veteran testified that he went overseas and received some outpatient therapy. Significantly, he did not receive any subsequent reported treatment in service or immediately thereafter until acute back pathology was found in 1972. It strains credulity to believe, given the treatment he has sought since 1972 that he would have gone over 10 years without seeking treatment if he had continuing back pain during that time. As such, the Board finds that any assertions by the Veteran as to the continuity of symptomatology of back problems since service to be outweighed by the lack of objective evidence between the Veteran's date of discharge and January 1974 in addition to the objective evidence of record which indicates that the Veteran's back problems in 1974 was an acute herniation of the nucleus pulposus L4-5. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the appellant clearly has a current disability. The Veteran has been diagnosed as having degenerative joint disease of the lumbar spine as well as anterior spondylolisthesis of L4 and L5 and canal stenosis at L4-5. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional has ever related this condition to the appellant's military service. The Veteran underwent VA examination in March 2011. The VA examiner stated that he could not resolve the issue of whether the Veteran's current low back pain was a continuation of the back pain from his time spent in service without resorting to speculation. Although Dr. W.D.H. noted in July 2010 that the Veteran had been having difficulty for the past 50 years with regards to his lower back, he was requested in June 2012 to provide an opinion as to the likelihood of the Veteran's current back difficulties being related to his active service. No such opinion is associated with the claims file. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, a bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In this case, Dr. July 2010 medical opinion is either a bare conclusion without a factual predicate or a bare transcription of lay history; and as such it is not competent medical evidence. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, the medical evidence does not show treatment or diagnosis of these problems until more than 10 years after service. The appellant did not begin to state he had experienced back symptoms since service until after he filed his claim for VA compensation in 1973. Thus, the record is absent evidence of in-service chronic back disorder, evidence of arthritis within a year following service, credible evidence of continuity of symptomatology, and medical evidence of a nexus between the Veteran's currently diagnosed spine disorders and his active duty service. Although the Veteran contends that his current spine disorders are related to his service, 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, an etiology determination of current spine diagnoses 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)." Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a chronic spine disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs