Citation Nr: 1323898	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  01-02 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disorder.

2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 

3. Entitlement to service connection for a low back disorder.

4. Entitlement to service connection for a cervical spine disorder. 

5. Entitlement to service connection for a psychiatric disorder as secondary to disorders of the low back and cervical spine. 

6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 



REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney


ATTORNEY FOR THE BOARD

Rutkin, Joshua M.


INTRODUCTION

The Veteran served on active duty from May 1966 to April 1968. 

This appeal to the Board of Veterans' Appeals (Board) stems from October 2000 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  The October 2000 rating decision denied a petition to reopen a service connection claim for a low back disorder, and the November 2009 rating decision reopened the claims of service connection for a cervical spine disorder and a psychiatric disorder,  and denied them on the merits, and also denied entitlement to TDIU. 

In a November 2002 decision, the Board determined that new and material evidence had been received to reopen the Veteran's low back disorder claim, and remanded the claim for a medical examination in October 2003.  The Board denied the claim in an October 2005 decision. 

In an October 2007 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial of the low back disorder claim and remanded the case for further action.  The Court issued its judgment in November 2007. 

The Board remanded the claim in January 2009 for further development in accordance with the directives in the Court's memorandum decision.  That development has been completed, as discussed below, and the case now returns for appellate review. 

The Veteran recently submitted a June 2013 letter by a D. Esterás.  In a July 2013 letter, the Veteran, through his representative, waived his right to initial consideration of this additional evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1304(c) (2012) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The service connection claims for a cervical spine disorder and psychiatric disorder were last denied in a January 2000 Board decision. 

2. Additional evidence received since the January 2000 Board decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the Veteran's claims for a cervical spine disorder and psychiatric disorder. 

3. The Veteran's low back disorder was caused by a post-service civilian injury and is not related to low back pain in service or otherwise caused or aggravated by a disease, injury, or event during active service, to include injuries from parachute jumping. 

4. The Veteran's cervical spine disorder did not manifest until over two decades after separation from active service, and was not caused or aggravated by a disease, injury, or event during active service, to include injuries from parachute jumping. 

5. Service connection may not be granted as a matter of law for a psychiatric disorder caused or aggravated by the Veteran's disorders of the low back and cervical spine, as service connection has not been established for the latter disorders. 

6. Entitlement to TDIU may not be granted as a matter of law, as the Veteran does not have any service-connected disabilities.


CONCLUSIONS OF LAW

1. The January 2000 Board decision, denying service connection for a cervical spine disorder and a psychiatric disorder, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

2. New and material evidence has been submitted to reopen the service connection claims for a cervical spine disorder and psychiatric disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3. A low back disorder was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

4. A cervical spine disorder was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

5. The criteria for entitlement to service connection on a secondary basis for a psychiatric disorder have not been satisfied.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012).

6. The criteria for entitlement to TDIU have not been satisfied.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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).  In order to satisfy its duty to notify the claimant under the VCAA, the Court held that 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.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim 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).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

In claims for service connection, the Court held that a claimant must be informed of the following five elements to satisfy the duty to notify with respect to what evidence is necessary to substantiate the 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484, 486 (2006); Quartuccio, 16 Vet. App. at 187. 

With regard to the low back disorder claim, a May 2001 letter informed the Veteran of the elements that must be met to establish basic entitlement to service connection, and his and VA's respective responsibilities for obtaining relevant evidence on his behalf.  Although the letter did not provide notice regarding the degree of disability or the effective date, this error was harmless as any question as to these "downstream elements" is rendered moot with the denial of his claim, since these elements only pertain to service-connected disabilities.  See Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (characterizing the degree of disability and effective date as "downstream" issues) (citing Evans v. West, 12 Vet. App. 396, 399 (1999)).  Thus, lack of notice of these last two elements did not affect the outcome of this claim and consequently no prejudice exists.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005) (holding that an error is prejudicial when it injures an interest protected by law such that the error affects "the essential fairness of the adjudication," and that a demonstration that an error did not affect the outcome of a case establishes lack of prejudice); rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The May 2001 notice letter was not sent prior to initial adjudication of this claim in the October 2000 rating decision, as the VCAA was only just enacted that year.  Nevertheless, the delay in timing was harmless as the Veteran has had ample opportunity to respond with additional information and evidence before his claim was readjudicated in several SSOC's over the ensuing years.  See Mayfield, 499 F.3d at 1323.  

With regard to the service connection claims for a cervical spine disorder and a psychiatric disorder, a September 2009 letter was sent to the Veteran prior to the initial rating decision, and satisfied all notice requirements under the VCAA, to include informing him of the elements of secondary service connection and entitlement to TDIU.  Moreover, as the service connection claim for a psychiatric disorder as secondary to service-connected disabilities, and entitlement to TDIU, must be denied as a matter of law, any VCAA notice or assistance errors were harmless with respect to these claims.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (stating that "because the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not applicable," and citing to the legislative history of its enactment, in which Congress "observed that it is important to balance the duty to assist 'against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim'") (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller).  

With regard to the Veteran's petitions to reopen the service connection claims for a cervical spine disability and a psychiatric disorder, these petitions have been granted.  Thus, any VCAA notice error pertinent to the requirements for reopening a previously denied claim was harmless.  See Mayfield, 19 Vet. App. 103, 106 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

Accordingly, the duty to notify has been satisfied with regard to all issues on appeal.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

The Veteran's service treatment records and VA medical records are in the file, as well as records from the Puerto Rico State Insurance Fund pertaining to back injuries sustained in 1983 or 1984.  Private medical records identified by the Veteran have also been obtained to the extent possible.  

Further, in accordance with the Board's January 2009 remand directive, a March 2009 letter requested the Veteran to fill out an authorized release form (VA Form 21-4142) for the Puerto Rico State Insurance Fund, which purportedly awarded the Veteran disability benefits in 1978 for a work-related injury, as reflected in a June 1997 VA examination report.  He was also requested to submit any additional information or evidence pertinent to his claim in this letter.  The Veteran did not return the authorized release form for the Puerto Rico State Insurance Fund, but did provide additional medical records, including several medical opinions in support of his claim.  Moreover, records for the Puerto Rico State Insurance Fund pertaining to injuries sustained in 1984 and 1990 were associated with the file in 2009.  As VA has no legal authority to request any additional Puerto Rico State Insurance Fund records without an authorized release form signed by the Veteran for such records, further efforts to obtain them are not warranted.  Indeed, it is likely that such records do not exist, as it seems the work-related injury did not occur in 1978 but rather in 1983 or 1984, as reflected in the Puerto Rico Insurance Fund records in the file, which make no reference to an earlier injury.  Accordingly, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

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.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  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).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

With regard to the Veteran's low back disorder claim, a VA examination and opinion were provided in December 2004.  In support of the opinion rendered in the examination report, the examiner cited to the discussion he provided in a June 1997 VA examination report as explanation.  The June 1997 VA examination report was based on the same examiner's examination of the Veteran and review of the record at that time when this claim was previously active.  As the June 1997 opinion is supported by a thorough explanation and is based on the same pertinent information and evidence currently of record, and as no information or evidence subsequently associated with the file requires further comment or opinion, the December 2004 opinion is sufficient for deciding this claim.  Moreover, the examiner reviewed the claims file and medical history, and performed an examination of the Veteran.  Thus, the December 2004 VA examination report satisfies VA's duty to obtain an examination and opinion.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the claimant has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  

With regard to the cervical spine disorder claim, a VA examination or opinion have not been obtained.  However, as with the Veteran's low back disorder claim, an adequate VA examination and opinion were provided in June 1997 when this claim was previously active.  The evidence subsequently associated with the file does not require further comment or opinion as it has no impact on the findings provided in the June 1997 examination report.  Thus, as there is sufficient evidence already of record to make an informed decision on this claim within the Board's competence, a VA examination or opinion is not required.  See McLendon, 20 Vet. App at 83 (holding, in pertinent part, that there must be insufficient evidence to decide the case, in conjunction with other factors, in order to trigger the duty to provide a VA examination or opinion). 

With regard to the claim for a psychiatric disorder as secondary to service-connected disabilities, and the issue of entitlement to TDIU, the predicate condition of having a service-connected disability in order to be eligible for the benefits sought has not been satisfied.  Thus, VA examinations or opinions are not required, as these claims must be denied as a matter of law.  See Mason, 16 Vet. App. at 132 (holding, in relevant part, that the VCAA does not apply when the law, and not the evidence, determines the outcome of a claim). 

Accordingly, VA's duty to obtain a VA examination has been met to the extent applicable.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate in the development of his claims.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  As shown above, any defect in the notice or assistance provided did not affect the outcome of these claims or compromise the "essential fairness of the adjudication."  See Mayfield, 19 Vet. App. at 116.  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

III. Procedural Due Process

The Court's October 2007 decision vacated the Board's previous denial of the low back disorder claim in order that VA could make efforts to obtain records from the Puerto Rico State Insurance Fund.  Accordingly, the Board remanded the low back disorder claim in January 2009, instructing the RO to seek appropriate authorization from the Veteran to request records on his behalf from the Puerto Rico State Insurance Fund for medical records associated with a grant of compensation benefits for a 1978 work-related injury.  The Board had also remanded this claim in October 2003 for a VA examination. 



In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall).

As discussed above in the section addressing VA's duty to assist under the VCAA, a March 2009 letter requested the Veteran to fill out and return an enclosed authorized release form (VA Form 21-4142) for the Puerto Rico State Insurance Fund records.  However, he did not return the form and so VA did not have the legal authority to request these records on his behalf.  Nevertheless, Puerto Rico State Insurance Fund records pertaining to a 1984 back injury have since been associated with the file, and it is likely that the injury said to occur in 1978 (as stated in the June 1997 VA examination report) actually occurred in 1984, as these records make no reference to an earlier injury.  Thus, the Board's remand directive has been satisfied.  

The Board's October 2003 remand directive to obtain a VA examination and opinion was satisfied by the December 2004 VA examination report, as discussed above. 

Accordingly, there has been full compliance with the Board's remand directives.  See id.

IV. Analysis

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) 

The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule 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 the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must assess the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must 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).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit, lay evidence must "demonstrate some competence."  See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id. (affirming the Court's finding that the Board did not improperly discount the probative value of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  




However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  

A. New and Material Evidence

Although the RO reopened the Veteran's service connection claims for a cervical spine disorder and psychiatric disorder in the November 2009 rating decision, the Board must also make this determination in the first instance.  See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO).  

Service connection for a cervical spine disorder and psychiatric disorder were last denied in the Board's January 2000 decision, which is final.  See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1100 (providing that, with certain exceptions not applicable here, all Board decisions are final on the date stamped on the face of the decision).  Because these claims were the subject of a final decision by the Board, they may only be reopened with the submission of new and material evidence.  See 38 U.S.C.A. § 5108. 

Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim.  The Board must review all evidence submitted by or on behalf of a claimant since the last final denial of the claim on any basis to determine whether new and material evidence has been submitted to reopen the claim.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).

"New and material evidence" is defined as follows.  "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  In order to warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  

In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but rather provides guidance as to whether submitted evidence meets the new and material requirements.  Id.  The Court observed that this standard is a "low threshold" for reopening, and explained as an example that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim considered on the merits, then it raised a reasonable possibility of substantiating the claim.  Id.  The Court also explained that new and material evidence need only pertain to one unestablished element in order to reopen a claim, as long as such evidence, in light of evidence previously of record, raises a reasonable possibility of substantiating the claim.  Id. at 121.




For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

In its January 2000 decision, the Board denied service connection for the Veteran's cervical spine disorder because the Board found that it was not related to service.  The Board denied service connection for a psychiatric disorder as secondary to the low back and cervical spine disorders as a matter of law, since service connection had not been established for the latter disorders.  

Since the January 2000 Board decision was issued, the Veteran submitted statements from private medical doctors dated in May 2000, December 2002, and November 2009 opining that the Veteran's cervical spine disorder was caused by injuries sustained in service from parachute jumping.  The May 2000 statement also indicates that the Veteran's psychiatric disorder is secondary to his disorders of the low back and cervical spine.  At the time of the Board's January 2000 decision, there were no medical opinions of record by a competent medical professional supporting the Veteran's contentions.  Accordingly, these opinions are both new to the file and material to the Veteran's claims, as they support the outstanding element of a nexus to service (or service-connected disability in the case of the psychiatric disorder).  

In sum, new and material evidence has been submitted to reopen the claims of entitlement to service connection for a cervical spine disorder and psychiatric disorder.  The petitions to reopen both claims are therefore granted.  See 38 C.F.R. § 3.156(a).

B. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Federal Circuit has distinguished two evidentiary requirements for establishing service connection depending on the type of disorder being claimed.  For any disorder not defined by VA as a "chronic disease," the Federal Circuit held that a three-element test must be satisfied under subsection 3.303(a) of the regulations in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary showing under subsection 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, there must be enough evidence to identify the disorder and establish its chronicity at the time, as distinguished from merely isolated findings or a diagnosis that includes the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.  

In other words, while a current disability must always be established in any service connection claim, the evidence required to show that the disability was incurred in or aggravated by active service differs according to whether the disability is defined as a chronic disease.  If the disability in question is not defined as a chronic disease, then a "medical nexus" between active service and the claimed disability must be established under the three-part test set forth in Shedden discussed above.  If the claimed disability is considered a chronic disease, then a relationship to service may be established by a chronicity in service or a continuity of symptoms after service, which is a less demanding evidentiary showing.  See id.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  

Low Back and Cervical Spine Disorders

The Veteran has been diagnosed with degenerative disc disease and a herniated disc of the lumbar spine, with lumbar radiculopathy, and with degenerative disc disease and a herniated nucleus pulposus of the cervical spine with cervical radiculopathy, as reflected in a September 1993 VA treatment record, and June 1997 and December 2004 VA examination reports.  Because osteoarthritis is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claims may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

The Veteran's disc disease of the low back and cervical spine is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for osteoarthritis 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 from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

The Veteran contends that his pathology of the low back and cervical spine was caused by injuries sustained from repeated parachute jumps during active service.  Although the evidence shows that he had an injuries to the low back following active service, as discussed below, he argues that these injuries merely aggravated pre-existing injuries incurred in active service. 

The Veteran's service personnel records show that he was awarded the parachutist badge.  Thus, it is credible that he performed repeated parachute jumps during service.  However, the competent and credible evidence, including the service treatment records, does not show that the Veteran injured his lumbar spine or cervical spine during service, or that chronic disorders involving these areas manifested in service.  Moreover, there is no credible evidence of a continuity of symptoms following active service.  Rather, the preponderance of the evidence shows that the Veteran's disorder of the low back was caused by post-service injuries, and that his cervical spine disorder did not manifest until after two decades following active service, and is unrelated to impacts from parachute jumps. 

Specifically, the service treatment records do not reflect diagnoses or treatment of low back or cervical spine problems.  The January 1968 separation examination report shows that the Veteran's spine was found to be normal on clinical evaluation.  The only mention of back problems at the time of active service is in the January 1968 Report of Medical History, in which the Veteran indicated a history of recurrent back pain.  A notation by a medical professional characterized this pain as "insignificant."  It should be noted that although the phrase "recurrent back pain" suggests that the Veteran's back pain may have been ongoing, the phrase is pre-printed in the form itself, and so it is not clear to what extent the Veteran's pain was in fact "recurrent" in nature. 

There are no post-service medical records documenting back problems until 1984, or over fifteen years after the Veteran's separation from service in April 1968.  Specifically, a September 1984 Puerto Rico Insurance Fund record reflects that the Veteran had low back pain radiating down his left leg after lifting a heavy object in December 1983, at which time he felt a "stabbing pain" in his back.  There is no mention of a history of earlier back pain or earlier injuries in this record.  According to a June 1984 private CT scan report, the Veteran had a herniated disc at L5-S1 with compression of the left nerve root, and a bulging disc at L4-L5. 

A February 1994 Puerto Rico State Insurance Fund record again reflects that the Veteran injured his back in 1984 when trying to lift a "metal piece" and had a "sudden onset" of low back pain radiating down his left leg.  This record also states that the Veteran's low back pain was "further exacerbate[ed]" in 1990, and that since that time he had persistent low back pain radiating down both legs.  There is no mention of a history of back pain or back injuries prior to the lifting injury in 1984 (or late 1983, as otherwise documented). 

The earliest documentation of problems of the cervical spine is a July 1993 VA treatment record, which shows that the Veteran reported pain in the posterior aspect of his neck radiating to the left upper extremity that began about one-and-a-half to two years earlier.  He did not report an earlier history of cervical spine pain or a cervical spine injury. 

The June 1997 VA examination report reflects that the VA examiner reviewed the claims file and medical history and examined the Veteran.  The examiner opined that the Veteran's cervical and lumbar spine disorders were not related to active service, to include the recurrent back pain noted in the January 1968 Report of Medical History.  He explained that while repeated parachute jumps could cause back problems, it was "very difficult to establish any relationship" between the Veteran's parachute jumps and his present disorders in the absence of treatment or diagnoses during active service, in addition to the clinical finding of a normal spine at separation and the "job related injury in 1978."  Although the examiner referred to a 1978 work-related injury, the Puerto Rico State Insurance Fund records indicate that the injury occurred in December 1983.  Either way, the evidence shows a post-service injury many years after discharge.  

In December 2004, the same examiner reviewed the claims file, including several favorable private medical opinions, and also examined the Veteran.  Based on this examination and review of the medical history, the examiner reiterated his June 1997 opinion by making explicit reference to it.  

The Veteran has submitted several medical opinions from private physicians in support of his claim, all of which assert that his cervical spine and low back disorders were initially caused by in-service injuries from parachute jumps.  In a May 2000 opinion, an R. Alvarez, M.D., stated that the Veteran's back disorder more likely than not had its onset in active service and was related to the recurrent back pain noted at the time, and was later aggravated by his post-service injury.  Doctor Alvarez explained that as a paratrooper, there were "multiple episodes that caused [the Veteran] to hurt his back."  The physician further stated that the Veteran was afraid to report any of these episodes due to concern that he would be transferred to another kind of job or duty.  

In a February 2009 letter, an A. Miller, M.D., stated that the Veteran had been his patient for three years and reported being treated for back pain since 1968, which began following duties as a paratrooper.  According to this letter, the Veteran denied any other history of back injuries.  Thus, "based upon the lack of history of any other event" that might have caused the Veteran's disorders, Dr. Miller concluded that his low back and cervical spine disorders were caused by his duties as a paratrooper. 

In a November 2009 letter, an E. Ramirez-Diaz, M.D., stated that the Veteran's duties as a paratrooper would have involved repetitive jumping and landing at high velocity, which caused an increase in axial loading of the spine with increase pressure through the vertebral disc which eventually will cause a spinal degeneration with development of disc herniation.  The physician thus concluded that the Veteran's disorders of the cervical and lumbar spine were caused by the repetitive trauma from parachute jumps.  This letter makes no mention of the Veteran's documented post-service injuries, or the fact that cervical spine pain did not manifest until 1991 (according to the July 1993 VA treatment record). 

A similar opinion was provided by a D. Esterás, a physical medicine physician, in a June 2013 letter.  The physician stated that the Veteran had been her patient since September 2011.  She reviewed the separation Report of Medical History reflecting that the Veteran had "recurrent back pain" and opined that it was "very probable that the origin of [the Veteran]s] back condition was the lesion as reported."  In support of her opinion, she stated that the Veteran's "high impact activities" as a paratrooper caused trauma to the spine from repetitive axial loading.  She also stated that "the only risk factor was the fact [that] he was a paratrooper."  This letter makes no mention of the post-service injuries to the low back in 1984 and 1990, or the fact that the Veteran's cervical spine pain did not have its onset until 1991. 




However, the credible evidence does not show that the Veteran injured his back or cervical spine in service.  The Court has held that silence in the service treatment records can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony.  Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring).  In order to infer from this silence that a claimed disability did not manifest during active service, the Board must find that the service treatment records are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred."  Id. (citing Fed. R. Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)).  The Court noted that in making this determination, the Board may be required to consider the limits of its own competence on medical issues.  Id.; see also Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert).  For example, in Kahana, the Court held that the Board could not make an independent determination that an injury to the anterior cruciate ligament (ACL) would have been documented in the service treatment records without supporting medical evidence.  See id.at 434 (majority opinion).  

There is no evidence suggesting that the service treatment records are incomplete.  Not only are they silent for any injuries to the cervical or lumbar spine, but there is no mention of low back or cervical spine disorders until the 1984 Puerto Rico State Insurance Fund record, and the July 1993 VA treatment record, respectively.  Both records show recent injuries or symptoms of the low back and cervical spine without any mention of earlier problems, as would be customary during the course of medical diagnosis and treatment.  Significantly, the June 1997 VA examiner, a licensed medical doctor, based his opinion against a relationship to service in part on the fact that the service treatment records did not reflect treatment or diagnosis  of low back or cervical spine problems related to trauma.  Thus, although it is possible that the Veteran may have sustained injuries to the spine in service from parachute jumping for which he did not seek treatment, such a history does not appear plausible or credible in light of the June 1997 VA examiner's findings, in addition to the fact that a history of injuries was not noted when the Veteran reported recurrent back pain at separation, or when he injured his low back in 1984.  

Under these circumstances, the silence in the service treatment records is significant in light of the post-service evidence, and renders the Veteran's assertion that he injured his low back and cervical spine during service not credible.  See id.; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect").   

With regard to the notation of recurrent back pain in the January 1968 Report of Medical History, a medical physician characterized this pain as "insignificant" at the time.  The fact that the Veteran's spine was clinically evaluated as normal at separation, in conjunction with the absence of treatment for back problems during service or until after a 1984 post-service injury, supports such a characterization.  Under 38 C.F.R. § 3.304(b), merely isolated findings during service, or a manifestation during service of potentially relevant symptoms such as joint pain in a claim for arthritis, does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  In the absence of any other documentation of symptoms or pathology of the spine until after the December 1983 injury, and in light of the findings of the VA physician who examined the Veteran and reviewed the claims file in June 1997 and December 2004, a chronicity in service has not been established with regard to the low back and cervical spine disorders.  See id.

The credible evidence also does not show a continuity of symptoms after service.  The earliest documentation of low back symptoms and pathology after service are the 1984 Puerto Rico Insurance Fund records, which show that the Veteran reported low back pain following a December 1983 work-related lifting injury.  This history was confirmed by the February 1994 Puerto Rico Insurance Fund record, which states that a 1990 injury further aggravated the pathology of the spine stemming from the low back injury sustained in 1983 or 1984.  Similarly, the July 1993 VA treatment record shows that the Veteran reported that his cervical spine pain had only been present for two years or less.  This record affirmatively shows that the Veteran did not have ongoing cervical spine problems ever since active service or until over two decades later. 

According to the February 2009 letter from Dr. Miller, who had only treated the Veteran for three years at the time, the Veteran apparently reported ongoing treatment for his back disorder since 1968.  However, this history is not credible in light of the evidence in conflict with such a history, and in light of the fact that the Veteran also did not disclose to Dr. Miller the December 1983 post-service low back injury.  Thus, the history reflected in Dr. Miller's opinion is not credible.  In this regard, the Court held in Curry, 7 Vet. App. at 68, that contemporaneous evidence has greater probative value than history as reported by the claimant.  

Moreover, the earlier medical records showing that the Veteran's back and cervical spine symptoms began many years after service-and following an acute injury in the case of the former-are especially probative, as they were generated with a view towards ascertaining the Veteran's then-state of physical fitness, and are akin to statements of diagnosis or treatment.  See White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment); see also LILLY: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (noting that 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 rational 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); 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).  


Thus, because the Veteran's reported history as reflected in Dr. Miller's February 2009 letter conflicts with more probative contemporaneous medical records, this history is not credible.  See id.; see also Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480.

The Veteran is competent to report a history of injuring his spine in service.  He is also competent to report experiencing and receiving treatment for ongoing low back and cervical spine pain ever since active service, as these are matters of first-hand experience.  See Washington, 19 Vet. App. at 368.  However, for the reasons already discussed, this history is not credible and thus not entitled to any weight.  See id.  It bears repeating that there are no medical records or other relevant contemporaneous evidence between the Veteran's separation from active service in April 1968 and the earliest documentation of back problems in 1984 following his low-back injury.  Likewise, there is no such evidence with regard to the Veteran's cervical spine disorder until the July 1993 VA treatment record, which is dated over two decades following the Veteran's discharge in April 1968. 

Thus, because the Veteran's statements made in support of a claim for benefits are in direct conflict with more probative evidence in the form of the contemporaneous Puerto Rico State Insurance Fund records and the July 1993 VA treatment record, neither of which mentions an earlier history of back or cervical spine problems but on the contrary show that these disorders did not manifest until many years after service, there is no credible evidence of a continuity of low back or cervical spine problems after service.  See Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480; Cartright, 2 Vet. App. at 25; Buchanan, 451 F.3d at 1336-37 (holding that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence).  

Accordingly, neither a chronicity in service nor a continuity of symptoms after service has been established with respect to the low back and service spine disorders.  Thus, service connection under 38 C.F.R. § 3.304(b) is not warranted.  See Walker, 708 F.3d at 1338-1339.

Service connection may still be established by showing a medical nexus between the Veteran's current low back and cervical spine disorders and his period of service.  See id.; 38 C.F.R. § 3.303(a).  However, the preponderance of the evidence weighs against a nexus to service.  As found by the VA examiner in the June 1997 and December 2004 examination reports, although repeated parachute jumps can lead to spine disorders, such a relationship is unlikely in the Veteran's case based on the evidence of record.  Specifically, the credible evidence shows that the Veteran injured his low back in December 1983 and again in 1990, and that he reported a two-year history of cervical spine pain in July 1993.  The examiner found this history significant in formulating his opinion, and also found it significant that no pathology of the low back or cervical spine was noted during service or for many years after service.  This opinion carries a lot of weight in the Board's determination, as it was authored by a medical professional who thoroughly reviewed the claims file and examined the Veteran.  Moreover, the examiner provided an explanation for his opinion which is consistent with and supported by the credible evidence of record. 

The June 1997 and December 2004 VA examination reports outweigh the private opinions submitted by the Veteran in support of a relationship to service.  In Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the Court held that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions.  The Court further held critical pieces of information from a claimant's medical history can lend credence to the opinion of a medical expert who considers them, and detract from the medical opinions of experts who do not.  Id.  

The February 2009 letter by Dr. Miller, the November 2009 letter by Dr. Ramirez-Diaz, and the June 2013 letter by D. Esterás make no mention of the Veteran's post-service low back injury or the fact that his cervical spine pain did not manifest until around 1991.  Indeed, Dr. Miller's opinion was explicitly based on the mistaken assumption that the Veteran had not injured his low back following active service, and that he had experienced and been treated for back problems ever since service.  As discussed above, this history is not credible.  A physician's opinion based on an inaccurate factual premise has no probative value.  Reonal v. Brown, 5 Vet. App. 458 (1993).  

The May 2000 opinion by Dr. Alvarez is also based on the assumption that there were "multiple episodes that caused [the Veteran] to hurt his back" during service, and also does not sufficiently address the fact that the Veteran's spine was clinically evaluated as normal during service, and that no pathology of the spine was diagnosed until many years later, including after the December 1983 low back injury.  Similarly, in the June 2013 letter, D. Esterás stated that the only risk factor for the Veteran's low back and cervical spine disorders was the repetitive impact from duties as a paratrooper, without making any mention of the Veteran's post-service injuries or the delayed onset of cervical spine problems.  Other medical opinions submitted by the Veteran are not supported by any explanation whatsoever.  Thus, the Board accords more weight to the VA examiner's opinion than to the private opinions.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence").

The Board has considered the possibility that repeated parachute jumps during service may have caused initial injuries to the low back and cervical spine that were more subtle in terms of their overt signs and symptoms, and which predisposed the Veteran to the later injuries and pathology involving these areas.  The June 1997 VA examiner noted that parachute jumps can cause back problems, and the November 2009 opinion by Dr. Ramirez-Diaz states that parachute jumps can cause repetitive trauma from the impact of landing which eventually leads to spinal degeneration.  The letter by D. Esterás provides a similar opinion.  

However, whether the Veteran's parachute jumps are in fact related to the pathology of his low back and cervical spine is essentially speculative, as observed by the June 1997 VA examiner.  Under 38 C.F.R. § 3.102, in order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility."  See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general or inconclusive in nature is not sufficient by itself to establish service connection).  In light of the credible evidence of record discussed above, the VA examiner's more definitive and fully reasoned opinion finding against a relationship to service, notwithstanding his acknowledgment of the possibility that repeated impacts from parachute jumps can cause spine problems, outweighs the private opinions in favor of such a relationship.  Thus, the mere possibility of a relationship between parachute jumps and the Veteran's disorders of the low back and cervical spine is outweighed by more definitive and probative evidence weighing against such a relationship based on the specific facts of this case.  

Moreover, as already noted, the opinions by Dr. Ramirez-Diaz and D. Esterás are otherwise deficient in that they do not address the significant post-service history showing two injuries to the low back in 1984 and 1990, and a delay of over two decades between service and the onset of cervical spine symptoms.  The opinion by D. Esterás also states that the Veteran had a "lesion" of the spine during service.  However, no lesion or objective pathology was noted at the time, only the Veteran's reported symptoms of recurrent back pain, which were found to be insignificant.  Thus, D. Esterás' opinion is based on an assumed factual premise that does not accord with the evidence.  It therefore lacks probative value.  A physician's opinion based on an inaccurate factual premise has no probative value.  See Reonal, 5 Vet. App. 458; Nieves-Rodriguez, 22 Vet. App. at 304. 

Finally, in addition to the "intercurrent" cause of the Veteran's low back disorders from civilian injuries sustained in 1983/1984 and 1990, the long period of time that elapsed between his period of active service and the earliest manifestation of his low back and cervical spine disorders over fifteen later (indeed over two decades later in the case of the cervical spine disorder) further weighs against a relationship between service and these disorders.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  

In sum, the nexus element of the three-part test set forth in Shedden has not been satisfied.  Shedden, 381 F.3d at 1166-67.  Thus, service connection is not warranted on a direct basis under 38 C.F.R. § 3.303(a).  See Walker, 708 F.3d at 1338-1339.

Because the evidence does not show that arthritis of the lumbar spine or cervical spine manifested within one year of service separation, the criteria for service connection on a presumptive basis under sections 3.307 and 3.309 of the regulations have not been satisfied.  

Accordingly, the preponderance of the evidence is against the Veteran's claims.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for disorders of the low back and cervical spine must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

Psychiatric Disorder

The Veteran argues that he has a psychiatric disorder caused or aggravated by his cervical spine and low back disorders.  The preponderance of the evidence is against the claim, and the appeal will be denied.

Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disease or injury.  38 C.F.R. § 3.310(a).  The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.  

Because service connection has not been established for the Veteran's low back and cervical spine disorders, service connection for a psychiatric disorder as secondary to these disorders may not be granted as a matter of law.  See id.  

The Veteran does not contend, and there is no evidence suggesting, that a psychiatric disorder manifested during active service or was otherwise caused or aggravated by a disease, injury, or event during active service.  Thus, the issue of direct service connection has not been raised by the Veteran or the evidence of record. 

Accordingly, entitlement to a psychiatric disorder is denied.  As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

C. TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this disability must be rated as 60 percent or more disabling, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more disabling, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 

The Veteran does not have any disabilities for which service connection has been established.  As entitlement to TDIU may only be granted for unemployability due to service-connected disabilities, the predicate requirement for TDIU eligibility has not been met.  See id.  Thus entitlement to TDIU must be denied as a matter of law. 

Accordingly, entitlement to TDIU is denied.  As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

New and material evidence has been received to reopen the service connection claim for a cervical spine disorder. 

New and material evidence has been received to reopen the service connection claim for a psychiatric disorder. 

Entitlement to service connection for a low back disorder is denied. 

Entitlement to service connection for a cervical spine disorder is denied. 

Entitlement to service connection for a psychiatric disorder as secondary to disorders of the low back and cervical spine is denied. 

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. 



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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs