Citation Nr: 1325683 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-07 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1973 to July 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied his claim for service connection of a low back disability. It also denied a claim to service connect a right knee disability. The Veteran filed a notice of disagreement (NOD) to the decision pertaining to the low back only; however, when he filed his substantive appeal (VA Form 9) in February 2010, he included argument concerning his right knee. Because the Veteran's argument was filed over a year after the January 2009 decision, it was not a timely-filed NOD. See 38 C.F.R. § 20.302. In a March 2010 letter, the Veteran was notified that his right knee claim would need to be reopened before his argument could be considered. The issue is REFERRED to the RO. Review of the Virtual VA paperless claims processing system reveals additional medical records that are pertinent to this claim, as well as a copy of the Veteran's Appellant's Brief in support of his appeal. The Veteran through his representative has waived original RO consideration of these materials. FINDING OF FACT A low back disability was not incurred in or aggravated by any incident of active military service. CONCLUSION OF LAW The criteria to establish service connection for a low back disability are not met or approximated. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (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. VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-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 at 308 (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) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 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 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 v. Brown, 7 Vet. App. 498, 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"). The standard of proof to be applied in decisions on compensation claims is 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 a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). A VCAA notice informing him of his and VA's respective duties for obtaining evidence was provided in June 2008, prior to adjudications by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice also advised of the manner in which effective dates and disability ratings are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist in the development of the claim, which includes assisting in obtaining service treatment records (STRs) and post-service medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained his STRs and post-service VA treatment records. The Veteran has not asked for VA to obtain any private medical records, but he has filed copies of private treatment reports. VA's duty to assist includes providing a VA examination and opinion where there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran's low back was examined and a medical opinion was obtained in September 2008. In this opinion, the VA examiner reviewed and referred to the claims file and medical records, considered the Veteran's lay statements, and rendered an opinion consistent with the other evidence of record. 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). See 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"). The Board notes that the VA examiner describes a medical record from December 1974 as being from June 1974. However, it is clear the examiner is discussing the December 1974 record because she quotes the Veteran's complaints from that day, and that the error was typographical in nature. The Board does not find it necessary to remand the claim to have this discrepancy clarified, as it would not result in any significant benefit to the Veteran. See Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran asserts he has had chronic and continuous low back pain since service. As the preponderance of the evidence is against service connection, the Board is denying his appeal. Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. A three-element test must be satisfied in order to establish entitlement to service connection. 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 so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (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)). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. 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."). 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 intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) 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. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed under 38 C.F.R. § 3.309(a). Walker, supra. Thus, if the veteran does not have 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 met. Id. Additionally, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if a chronic disease, listed in section 3.309(a) became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's spine was clinically evaluated as "normal" during his entrance examination in July 1973. He did not complain of a history of recurrent back pain. In December 1974, the Veteran complained of having low back pain for the preceding two weeks. He attributed the pain to running, physical training, and lifting heavy equipment. His active range of motion was within normal limits, and SLR (straight leg raise) was negative. His pain was localized in the medial lumbar area, and no spasm was noted. His spinal alignment was good. He was prescribed Parafon F and referred to the back clinic for instruction on exercises to treat his low back pain. In June 1975, the Veteran's spine was clinically evaluated as "normal" during his separation examination. The Veteran indicated he was "in good health," and he signed the examination report. In July 1975, the Veteran verified that his health not changing in the interim between his separation examination and his actual separation. The Veteran separated from active duty in July 1975. In June 2008, the Veteran complained of pain in his right buttocks radiating down his leg to his foot, which he had been experiencing for about three or four months. It was noted his back had excellent forward flexion, and he had tenderness at the right sacral notch. He was diagnosed with intermittent radicular syndrome from the low back. In July 2008, his symptoms were continuing and he was diagnosed with back osteoarthritis. At the September 2008 VA examination, the Veteran was diagnosed with severe facet arthropathy with severe neural foraminal stenosis. He reported that his back became painful in service, and he has had problems since then. The examiner reviewed his previous medical records, noting that he denied arthralgia in February 2008 and made no mention of back pain in May 2008. The first mention of low back pain was not until June 2008. She noted his in-service back pain was associated with running, physical training, and heavy lifting, and that he was instructed in exercises for the lumbar spine and muscle strengthening. His back was normal upon separation. The examiner opined that his current low back disability is not related to service, as he had a normal clinical evaluation upon separation and because there is no mention of low back problems again until 2008. A September 2009 letter from his VA treating physician offers a positive nexus between the Veteran's low back disabilities and his active duty service. She noted he had been seen in service for back pain in 1974, which occurred after running and lifting heavy equipment. She noted there were no reports of significant falls or trauma. She opined that it is possible his current chronic back disease developed as an outgoing of the prior injury. She indicated that she had no knowledge of his medical history between 1974 and 2009, and could not be certain, but that prior injuries can lead to later problems similar in nature to what the Veteran is experiencing. Based on the foregoing, the preponderance of the evidence is against this claim. It is undisputed that the Veteran has a current low back disability and that he sought treatment for low back pain while in service. The inquiry, then, is whether his current disability is related to service. The Veteran has asserted a connection, and his treating physician has provided a positive opinion; however, the probative evidence weighs against a relationship. The Veteran's statements are not probative. He has asserted that his low back disability began in service and has continued until the present. In a February 2010 statement, he provided dates of treatment in service to support his claim. He indicates that his back injury occurred sometime in service, between July 1973 and July 1975. He noted that he sought treatment on March 14, 1974, May 17, 1974, June 17, 1974, July 30, 1974, November 6, 1974, December 17, 1974, and in 1975, and was put on profile due to his back. In regard to the specific dates the Veteran asserted he sought treatment for his back, only the December 1974 record pertains to his back or back pain. He was put on limited duty profile in March and May 1974 due to his right knee, not his back. All of these records are located in his claims file. In regard to the statements that his back pain started in service and has continued until the present, the Veteran is competent to report personal experiences, as well as to symptomatology that is non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). He has been shown to have some medical training-his Report of Separation from Active Duty lists his primary specialty as medical specialist. The extent of his training has not been set forth, however, it has also not been alleged that he has the expertise of a doctor. Apart from the fact that he is not credible in his report of continuing back pain as evidenced by his specific denial of this symptom at separation, his statement that his current back disability began in service is not competent, because it has been investigated by a physician, who found it unlikely. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The September 2009 statement from the Veteran's treating VA physician is also not probative. She indicated that it is "possible" that his current low back disability is related to service, in that prior injuries can lead to later problems, but that she was unaware of his intervening medical history and could not be certain. This opinion is speculative, and insufficient to provide the required nexus to service. See, e.g., Hood v. Shinseki, 23 Vet.App. 295 (2009) (in claim alleging VA negligence in medical care, holding that where physician's opinion that it was "impossible, in retrospect" to reach medical conclusion of cause of claimant's illness in VA medical facility was "at best, equivocal" and insufficient to support such nexus); Polovick v. Shinseki, 23 Vet.App. 48 (2009)(holding doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet.App. 185 (1999) (a medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence); Goss v. Brown, 9 Vet.App. 109 (1996) (noting that the use of the phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet.App. 609 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). The September 2008 VA examination report is probative to this issue, and does not support service connection. The VA examiner opined that a connection to service was not likely because the Veteran's spine was clinically evaluated as normal upon separation, and because he did not have any further problems with his back until 2008, over 30 years following separation from service. The VA examiner's reliance, in part, on the Veteran's separation examination is not misplaced. The separation examination report was generated with a view towards ascertaining the Veteran's then-state of physical fitness; it is akin to a statement of diagnosis or treatment and is therefore of increased probative value, reflecting the Veteran's then state of physical fitness. 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); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (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). The Veteran is diagnosed with facet arthropathy with neural foraminal stenosis, which is chronic, and analyzed in the same manner as arthritis. Therefore, the Board has considered whether service connection can be established by way of the presumptions set forth in 38 C.F.R. §§ 3.309(a) and 3.303(b). Under section 3.309(a), a chronic disability is presumed to be service connected if it manifests to a compensable degree within the first year following service. However, the Veteran's low back disability did not become manifest until 2008, over thirty years following service. Under section 3.303(b), if a chronic condition was shown in service and then subsequently manifested after separation from service, it will be presumed to be service connected. Here, the Veteran's low back was not diagnosed as arthritis or facet arthropathy until after service and there was an apparent lapse of symptoms since that time. The Veteran's claim cannot be granted on the basis of the chronicity presumptions. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, this claim must be denied. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs