Citation Nr: 1325223 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-20 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant had a period of active duty for training (ADT) with the Marine Corps Reserves from February 1975 to August 1975 with subsequent service in the Marine Corps Reserve until discharge in September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied service connection for a back disability. The issue has since been recharacterized to specify the low back involvement based on the appellant's statements. A Travel Board hearing was held in June 2010 with the Veteran in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appeal was then remanded by the Board in February 2011 and March 2013 for further evidentiary development, and now returns to the Board for further review. The appellant's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT A low back disability is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the appellant's claim, a letter dated in December 2007 was sent to the appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding his service connection claim. B. Duty to Assist The matter was previously remanded to obtain the appellant's Social Security Administration (SSA) records and request any records he has pertaining to his award of disability benefits from the State of Kansas. A current review of the claims file reveals that the appellant's service treatment records, service personnel records, VA treatment records, Social Security Administration (SSA) records, lay statements, and hearing transcript have been associated with the claims file. The appellant did not respond to a March 2011 letter requesting information pertaining to his post-service back injury in 1985 or an April 2013 letter requesting information regarding his records from the State of Kansas. The Veteran testified at the Board hearing that he had received treatment for his back from the "Tahoya Shores" VA Medical Center and also the VAMC in La Jolla since 1975. The Board noted in its February 2011 remand that Tahoya Shores was in the Tahoe region and that there was no VAMC shown in the area. The RO subsequently determined that the Veteran had been referring to La Jolla and obtained records from the San Diego VAMC dated from 1995 to 2011 and from the Kansas City VAMC dated from March 1986 to April 1989 and April 2008 to March 2011; there is no indication of any further outstanding VA treatment records. The Veteran was notified of the records obtained by the RO in the August 2012 and June 2013 supplemental statements of the case. Therefore, the directives of the prior remand have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Notably, the appellant's service treatment records only contain a copy of his February 1975 enlistment examination. However, at the time the records were requested, the National Personnel Records Center (NPRC) indicated that they had forwarded all the service treatment records in their possession. The appellant's personnel records were also obtained. They confirm that he received a general discharge, rather than a medical discharge as he has claimed, and contain no other significant medical findings. VA has exhausted its efforts to obtain the Veteran's service records. There is no indication that any additional service treatment records exist but are not associated with the claims file. No medical examination or opinion has been obtained with respect to the appellant's claim for service connection for a low back disorder. However, the Board finds that the evidence, which does not reflect credible evidence of an in-service event, disease, or injury, warrants the conclusion that a remand for examinations and/or opinions is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As discussed below, the evidence does not satisfy the standards of McLendon. The appellant also testified at a Board hearing in June 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ elicited testimony to support the appellant's claim, and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. VA has provided the appellant with the opportunity to submit evidence and argument in support of his claims. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Thus, service connection on a presumptive basis is not available where the only service performed is ADT or IDT. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). B. Evidence The appellant's service treatment records contain only a February 1975 enlistment examination. The appellant reported a history of recurrent back pain, but the examination revealed no abnormalities. After service in March 1986, the appellant sought treatment for back pain. He complained of low back pain since service, and also had a work-related injury in September 1985. VA records show the appellant was diagnosed with lumbar spine stenosis in April 1986. He reported injuring his back after falling 65 feet in an elevator in September 1985. In September 1988, the appellant reported experiencing an acute disc injury about 13 years ago during service, and that he was subsequently involved in an elevator accident in 1985. Additional records from February 1989 and April 1989 show the appellant reported a history of low back pain since a back injury incurred about 3 years ago from an elevator accident. A November 2007 MRI of the lumbar spine revealed significant degenerative joint disease. In November 2009, the appellant reported sustaining multiple lumbar fractures as a result of falling several stories in an elevator in 1985. The appellant testified at a Travel Board hearing in June 2010. He stated that he first sustained a back injury when carrying telephones up and down hills for punishment. During this process, he and five or six others tripped over each other and fell down. They all wrenched their backs and went for treatment together. He was given a cortisone shot, a pain pill, and a muscle relaxer. He was also placed on light duty. He sought treatment another 15 or 20 times, and received an injection each time. He was told he would receive a medical discharge. After completing his period of active duty, he sought treatment again at a VA facility. He also stated that he sustained a fall in 1985. He testified that, in the ensuing lawsuit, he received limited compensation for a back injury resulting from that fall because he had a prior back condition from service. Unfortunately there are no records pertaining to the Veteran's post-service back injury in 1985, other than as noted as a frame of reference in the VA treatment records in 1986. It is noted that the Veteran did not respond to the RO's request for further information concerning this injury. The Veteran's personnel file includes a letter to the Veteran dated in March 2009 from the Department of the Navy, Board for Correction of Naval Records, in reference to a March 2009 application for correction of his naval records. The Board noted that after careful consideration there was insufficient evidence to establish a probable material error or injustice. It was found that the Veteran enlisted in the Marine Corps Reserve on February 20, 1975 and served on initial active duty for training from February 26 to August 5, 1975. He also served in a Marine Corps Reserve unit until September 24, 1976, when he was discharged for the convenience of the Government, rather than by reason of physical disability, as he believed. It was noted that unfortunately the specific basis for the Veteran's discharge was not shown in the available records. However, in the absence of evidence that he was found unfit for service by reason of physical disability when released from active duty on August 5, 1975 or that he later became unfit because of disability that was proximately due to his performance of inactive duty training in the Marine Corps Reserve, the Board was unable to recommend any corrective action. C. Analysis Based on the evidence of record, service connection for a low back disability is not warranted. Although the record shows that the appellant is diagnosed with degenerative disc changes in the lumbar spine, the overall weight of the evidence is against a finding that this disability was incurred in or otherwise related to service. As noted above, the only evidence of an in-service back injury is the appellant's own statements. He is competent to report the fall he experienced in service, as well as subsequent symptoms such as pain. However, he has not demonstrated the necessary knowledge or expertise to offer a competent opinion relating his current condition to this incident. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of degenerative changes in the lumbar spine falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As noted above, however, establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d at 1167; see Caluza v. Brown, 7 Vet. App. at 506, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In this case, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, supra; see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). As noted above, back pain is the type of symptom that the appellant is competent to describe. However, even where a claimant has asserted continuity of symptomatology since service, the Court has held that he or she is not necessarily competent to establish a link between the continuous symptomatology and a current underlying condition. See McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). This principle is particularly relevant in this present case. After his discharge from service, the appellant sustained a significant back injury in 1985. Therefore, his lay statements regarding continuity of symptomatology, alone, do not establish that current symptoms are attributable to the symptoms he experienced in service. Moreover, while the appellant reported experiencing back pain since service, his records specifically note that he was not discharged for medical reasons. In addition, there is no documented treatment for a back condition between the time of his discharge and the 1985 post-service back injury. That is, the Veteran is not shown to have sought treatment for his condition until after the 1985 injury. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In this case there is no separation examination in the file, but the record also does not indicate any treatment for back problems until after the post-service injury in 1985, which was 10 years after service. In addition, while the appellant reported in 1986 that he had a history of back pain dating back to service, subsequent statements in 1989 reflect reports of only a 3 year history of back pain. An April 1989 VA treatment record notes the Veteran's report that his initial pain was secondary to the elevator fall in 1985. In weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds the assertions of continuous symptomatology to be less credible than the records generated during and after separation from service. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of any reports of continuous back symptoms prior to the filing of a claim for compensation has a direct bearing on the credibility of the evidence of continuity. The preponderance of the evidence is against finding that the appellant has a low back disability etiologically related to service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Service connection for a low back disability is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs