Citation Nr: 1326210	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  08-30 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a low back disability (claimed as residuals of a back injury).

2.  Entitlement to service connection for residuals of a head injury.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from February 1975 to February 1978.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified before the undersigned at a March 2013 Travel Board hearing.  The hearing transcript is of record.  

The issue of entitlement to service connection for residuals of a head injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A low back disability was not present in service or for years thereafter, and is not etiologically related to service.


CONCLUSION OF LAW

A low back disability was not incurred in active service and service incurrence may not be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran 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, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 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.  The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include:  (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 of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).   

In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a June 2006 letter.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the June 2006 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  


The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.1599(c)(4).

The Board notes that all pertinent evidence has been obtained in this case and the Veteran was afforded an appropriate VA examination in March 2007.  In this regard, the Board notes that the Veteran has submitted statements indicating that he has been receiving treatment from his private physicians since 1978, 1981 and 1987, although records of treatment associated with the claims file only stem from 2000.  The Board notes that the RO attempted to obtain records of the Veteran's reported medical treatment dated from February 1978 through January of 2000.  See November 2011 and January 2012 Requests for Medical Records.  However, no response to either request was ever received.  The Veteran reported in a January 2013 statement that he had copies of the reported medical records from his private physicians, and that he would send copies of the records to Board.  However, as of this date, no such records have been received.  Furthermore, the Veteran did not indicate that he had copies of the records in his possession or that he had mailed copies of the records to the Board during his March 2013 Travel Board hearing.  Therefore, the Board finds that any records of treatment from D.F., P.A. and R.S., MD, prior to 2000, are determined to be unavailable.  Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the denied claim.  The Board is also unaware of any such evidence.

In sum, the Board concludes that any errors in the notice and the development of the claim by the originating agency were not prejudicial to the Veteran.


Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).

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 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2012).

An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology.  38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2012).  The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits.  38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006).

Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Wilson v. Derwinski, 2 Vet. App. 16 (1991).  Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible.  Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6 Vet. App. 465 (1994)

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).

With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2012).  However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Where a Veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
Analysis

The Veteran contends that his current low back disability developed as a result of a motor vehicle accident (MVA) he was involved in during active military service in 1976.  During his March 2013 Travel Board hearing, he testified that he sought treatment at the Army Hospital at Fort Leonard Wood, Missouri following the MVA, and that he was put into a bed and went into a coma, which he awoke from ten days later.  However, he claimed that he was released once he came out of the coma and sent back to active duty.  He reported that he did not receive any more treatment for his back during active duty, but that he continued to have back pain during service and following his discharge, and that he self-medicated for the pain with over-the-counter medications such as Tylenol.  The Veteran also reported that he sought treatment after his discharge for back pain from private doctors, starting around 1985.  The Veteran also reported that he had two post-service back injuries approximately ten years after his discharge.  The first involved a garage door falling on his head, and the second was a slip and fall incident in a swimming pool.  

Service treatment records show that in May 1975, the Veteran was evaluated for pain in the lumbar spine and was noted to have tenderness on range of motion.  He was diagnosed at that time with a lumbar strain and treated with heat and Tylenol.  Subsequently, in the fall of 1976, the Veteran was involved in a motor vehicle accident (MVA), during which he injured his back and head.  He was hospitalized for two weeks following the accident at the Army Hospital at Fort Leonard Wood in Missouri.  There is no further treatment for the low back noted during service, and at the time of his discharge examination in November 1977, the Veteran's spine was evaluated as normal, he denied any recurrent back pain, and no low back disability was diagnosed.

The post-service medical evidence of record, including private treatment records from D.F., P.A. and R.S., MD dated from 2000 to 2006, and VA treatment records from the VA Medical Hospital in Madison, Wisconsin and the Rockford, Illinois Outpatient Center dated from April 2006 to February 2011, shows that the Veteran has been treated for low back pain and disc space narrowing since 2000, and diagnosed per x-ray evidence, with lumbar degenerative joint disease.  The private treatment records show that during treatment in October 2000, the Veteran reported neck and back pain since having a 60-pound garage door fall on his head.  He was diagnosed at that time with low back pain with disc space narrowing.  They do not indicate that the Veteran's lumbar spine disability is related in any way to his active military service.  

The Veteran has also submitted statements indicating that he has been receiving treatment from his private physicians since 1978, 1981 and 1987, although records of treatment associated with the claims file only stem from 2000.  However, as noted above, the Board finds that any records of treatment from D.F., P.A. and R.S., MD, prior to 2000 are unavailable.

There is no other medical evidence of record showing that the Veteran sought treatment for his back immediately following his separation from service or for many years thereafter.  Therefore, although the Board concedes that the Veteran injured his back in service, it finds that a chronic low back disability did not manifest in service or for many years thereafter.

The Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The Board does acknowledge the contentions of the Veteran that he developed a chronic low back disability in service and had a continuity of symptomatology thereafter.  The Veteran is competent to report the symptoms of his disability, and he has attributed his current low back disability to his active military service.  However, it would require medical expertise to say that the low back disability identified many years after service, had its onset during or as a result of service.  The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his low back disability.  38 C.F.R. § 3.159(a)(1),(2) (2012); Jandreau, supra.  


The Board also notes that the United States Court of Appeals for the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself.  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case, the Board finds that the Veteran is competent to state that he has continued to have back problems since service.  However, his allegations are inconsistent with the contemporaneous record.  In this regard, service treatment records show that he injured his back in service and was diagnosed with a lumbar strain.  However, no chronic back disability was diagnosed at the time of his discharge, and he did not report back problems at that time.  Furthermore, despite his reports that he sought treatment for his back within the years immediately following his discharge, the post-service medical evidence of record does not show complaints of back problems until 2000, more than twenty years after his discharge, and the treatment records documenting such complaints do not contain any competent medical opinions linking his back symptoms to an injury sustained during his active military service.  The Board also notes that the Veteran has given contradictory reports with regard to when he started receiving treatment for his back post-service.  He noted on separate occasions that he started receiving treatment for his back in 1978, 1981 and 1987.  Furthermore, the Veteran has reported and the evidence shows that the Veteran sustained two separate post-service back injuries in close proximity to the time that he was diagnosed with his currently diagnosed degenerative joint disease.  The Board finds that this information makes the Veteran's contention that his current back disability is related to a remote injury in service in 1968 less credible.  The Board finds the contemporaneous evidence to be more probative and credible than the Veteran's current assertions.  Contemporaneous evidence has greater probative value than history as reported by the Veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).  

In addition to the lack of evidence showing that a low back disability manifested during active duty service or within close proximity thereto, the medical evidence of record does not link any current diagnosis to the Veteran's military service.  In this regard, the Board notes that the March 2007 VA examiner reviewed the claims file and medical history and performed a physical examination.  He noted that there was no diagnosis of a herniated disc until many years after the Veteran's military service, and that he had several episodes of trauma to his spine after the military, suggesting in part that the disc disease is due to the post-service injuries.  Therefore, he opined that the Veteran's diagnosed lumbar spine degenerative disc disease was not at least as likely as not related to his military service.

Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disability.  Such a disorder did not manifest during service or for many years thereafter and has not been shown to be causally or etiologically related to an event, disease, or injury in service.  

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  


ORDER

Service connection for a low back disability is denied.



REMAND

The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

The Veteran contends that he has current residuals of head trauma, including headaches and mild memory impairment, as a result of the aforementioned MVA he was involved in during active duty in 1976.

Service treatment records show that the Veteran injured his head in a MVA during active duty in 1976.  The Veteran's skull series was negative, and no disability was diagnosed.  He was treated conservatively with aspirin and restricted from driving for 24 hours.  His head was evaluated as normal, and no residuals of a head injury were noted at the time of his discharge examination in November 1977.  The post-service medical evidence of record shows that during private treatment in October 2000, the Veteran reported neck and back pain since having a 60-pound garage door fall on his head.  The assessment was neck pain.

The Veteran was afforded a VA examination in response to his claim in February 2012.  The examiner noted that there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions, resulting in mild functional impairment.  He also noted that there was evidence of headaches, including migraines.  The examiner opined that the etiology of the noted deficits was uncertain because medical/imaging records were not available to confirm the Veteran's reported history of two lengthy comas in the 1970s.  He noted further that it was possible that chronic pain, insomnia, medications, and psychological distress explained the cognitive deficits to some extent, and that is was also conceivable that the cognitive deficits on testing were due in part to remote traumatic brain injury (TBI).  
The Board notes that the examination report reflects that the Veteran's claims file was not reviewed at the time of the examination.  As such, the examiner submitted an addendum to his opinion in April 2012.  He noted that he had reviewed the Veteran's in-service records, and that the records did not indicate an in-service TBI.  As such, he opined that it is less likely that the Veteran's tension headaches and mild memory impairment are related to any in-service event.  However, the examiner did not provide a rationale for this opinion, and it is therefore, inadequate for rating purposes.  

The Court has held that instead of relying on a VA examiner's conclusory statements, the Board must return the opinion as inadequate because it fails to provide any analytical support for its conclusion.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, ... he must provide an adequate one").

As such, the Board finds that another medical opinion is needed to determine whether the Veteran's current complaints of headaches and mild memory impairment are related to a head injury sustained during his active military duty.  38 U.S.C.A. § 5103A(d) (West 2002).

The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158 and 3.655 (2012).

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the VA physician who performed the February 2012 VA examination.  The physician is asked to review the pertinent medical history again and then address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current complaints of headaches and mild memory impairment are related to an in-service head injury in 1976.  

The examiner is also requested to address the role, if any, played by the Veteran's post-service head injury in October 2000, in the development of his currently claimed head injury residuals.

A complete rationale should be given for all opinions and conclusions expressed.

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

If the examiner who provided the previous examination is unavailable, another medical professional should review the claims folder and provide the necessary opinion and rationale.  An additional examination should be afforded if the new examiner determines that one is necessary.

2.  The RO should then readjudicate the issue on appeal.  If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case.  The case should be returned to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs