Citation Nr: 1324992 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 03-11 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for insomnia; memory problems; residuals of right and left knee injuries; residuals of a back injury; residuals of a left hip injury; a heart murmur, a left lung scar; pes planus; chronic obstructive pulmonary disease; residuals of surgery to left neck; posttraumatic stress disorder; and a request to reopen claims of service connection for headaches, internal bleeding, decreased vision, and a menstrual disorder. In a decision dated in April 2005, the Board granted service connection for migraine headaches; remanded service connection claims for disability manifested by prolonged menses, residuals of a right knee injury, residuals of a left knee injury, and COPD; and denied service connection for decreased visual acuity; disability manifest by internal bleeding; disability manifested by poor memory; heart murmur; scar of the left lung; pes planus; residuals of surgery of the left neck, including arthritis or bursitis; PTSD; disability manifested by insomnia; residuals of a back injury; and residuals of an injury of the left hip. In May 2005 the Veteran appealed the Board's April 2005 decision to the Court of Appeals for Veterans Claims (Court). In December 2005 the parties filed a Joint Motion for Remand, which the Court granted in December 2005. In July 2006, the Board remanded the case for further development pursuant to the Joint Motion. In a decision dated in March 2008, the Board denied service connection for an eye disability, internal bleeding, memory loss, heart murmur, a left lung disability, a disability manifested by insomnia, and a left hip disability; and remanded the issues of service connection for a right knee disability, a left knee disability, COPD, painful menses, pes planus, a neck disability, a back disability, and a psychiatric disorder to include PTSD, for additional development. In a decision dated in June 2010, the Board denied service connection for a right knee disability; a left knee disability; a respiratory disorder to include chronic obstructive pulmonary disease; a menstrual disorder to include adenomyosis, painful menses, and menometromegia; pes planus; a neck disability; and a psychiatric disorder to include PTSD; and remanded the sole remaining issue on appeal, namely, service connection for a back disability, for appropriate procedural development, which has been done. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the evidence shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW A back disability was not incurred, and may not be presumed to have been incurred, during active duty service. 38 U.S.C.A. §§ 1131, 1117, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the claimant of the information and evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In letters dated in July 2000 and August 2001, the Veteran was provided notice regarding the information and evidence needed to substantiate her claim for service connection, including the criteria for a grant of service connection; the information and evidence to be submitted by her; and the information and evidence to be obtained by VA. Although VCAA notice of how disability evaluations and effective dates are assigned was not sent, the Board finds this error to be harmless since the claim is being denied. See Smith v. Shinseki, 24 Vet. App. 40, 49 (2010). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, private medical records, Social Security Administration records and VA examination reports, as well as the Veteran's lay statements. In sum, the VCAA provisions have been considered and complied with. The Veteran was notified of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA; and she was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of these matters on the merits. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Merits Service treatment records do not relate any complaints, diagnosis or treatment related to a back disorder. In July 1984 she separated from active duty service, and in September 1984 she filed a claim for service connection for numerous disorders, but not a back problem. On VA examination in November 1984, she also made no complaints regarding her back, and no abnormalities were detected. On separation from service the Veteran assumed civilian work as a registered nurse (RN). In 2000, the Veteran filed her claim for service connection for back problems, which she contends may relate to a traumatic blow to her head during service. In October 2005, the Veteran was involved in a work-related motor vehicle accident, with ensuing complaints of low back pain. An MRI of the lumbar spine in December 2005 found lumbar spondylosis with radiculopathy. On VA examination in June 2009, the Veteran reported that she had fallen after a blow to the head during service in January of 1984. She also reported that she had been involved in motor vehicle accidents after service in 2005 and 2008. Diagnosis, after examination, was spondylosis with degenerative disc disease and an L4-5 disc bulge, which the examiner stated were not related to service but were instead age related changes. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Disorders diagnosed after service may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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 Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence confirms that the Veteran has a back disorder, diagnosed as spondylosis with degenerative disc disease and L4-5 disc bulge; however, the earliest evidence in the claims file of a back disorder is in 2000, long after the Veteran's separation from active duty service. There is also no probative evidence of record that relates any of the Veteran's back disorders to service. According to a VA examiner, the Veteran's back disorders are not related to service but are instead age related; and the Board accords this evidence from a VA physician, which is buttressed by the absence of any complaints, diagnosis, or treatment for a back problem before 2000, great weight. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (The Board, as fact finder, must determine the probative value or weight of the evidence); Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). As a registered nurse with specialized education, training, and experience, the Veteran is competent to opine as to the etiology of her back disorder, which she suggests is related to a blow to a remote blow to her head during service. However, the Board finds the Veteran's opinion to be of limited probative value since the Veteran provided no explanation or rationale for this assertion. See Bloom v. West, 12 Vet. App. 185 (1999) (providing that the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion. The Board acknowledges the Veteran's report that she was treated for back pain during service on July 23, 1984, as well as her report of recurrent back pain since the blow to her head during service; however, service treatment records, which are extensive, show that the Veteran was treated for a urinary tract infection on July 23, 1984, not a back disorder. Although there was a notation of back pain in the July 1984 record, this was incidental to the urinary tract infection. There is no other record of back pain during service. Indeed, the Veteran denied recurrent back pain, but acknowledged having many other ailments at her subsequent separation examination. This is highly probative evidence against the claim of service connection. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). There is also no evidence of arthritis in the year after service. In fact, while the Veteran filed a claim for service connection and was examined by VA shortly after her separation from service, she made no mention of back pain during that time; which was approximate to her active duty service. Accordingly, the Board finds that service connection under the presumptive provisions of 38 C.F.R. §§ 3.307(a), 3.309(a) is not warranted. Consequently, the Board finds that the preponderance of the evidence is against a finding that the Veteran's back disorders are related to service. Service connection for a back disorder must therefore be denied. See Gilbert, 1 Vet. App. 49 (providing that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.). ORDER Service connection for a back disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs