Citation Nr: 1327070 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 05-39 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to service connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to March 1979 and from May 2000 to October 2000. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction was subsequently transferred to the Nashville, Tennessee, RO. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2008. A transcript of the hearing is associated with the claims file. In March 2010, the Board reopened and remanded this case for further development. In a March 2011 decision, the Board denied the Veteran's claim and he appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). The Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In an October 2012 Order, the Court granted the motion, vacated the March 2011 Board decision, and remanded the case to the Board for further appellate review. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The evidence does not show that the Veteran's current back disability was present during service or within one year after service; it is not otherwise attributable to the Veteran's period of military service or to a service connected disability. CONCLUSION OF LAW The Veteran does not have a low back disorder that is the result of disease or injury incurred in or aggravated by active military service; a low back disorder is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.3.04, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a letter dated March 2006 and the claim was thereafter readjudicated. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a December 2008 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's March 2010 remand, VA obtained the Veteran's Social Security Administration (SSA) records and associated them with the claims file. VA provided the Veteran with a medical examination in June 2010 and a private medical opinion in May 2013. The June 2010 examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. In May 2013, a VA neurosurgeon reviewed the claims file, including the June 2010 examination report, prior to offering his opinion as to the nature of the claimed disability, accompanied by a rationale. Combined, these are adequate for VA purposes. Thus VA has complied with the March 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to the onset and etiology of the claimed disability. Ultimately the claim was remanded for additional development and an addendum opinion. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). Analysis Certain chronic disabilities, such as arthritis, including spondylosis, are entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. In this case, an August 2002 lumbosacral spine x-ray showed "First degree spondylolisthesis of L5 over S1. Negative for recent compression fracture. Mild lumbar spondylolysis and lower dorsal spondylolysis. Degenerative disc at L5-S1 level suggested. Negative for bone destruction." However, this record is nearly two years after the Veteran's separation and therefore outside of the presumptive period. The record does not show a diagnosis of arthritis within one year of the Veteran's separation from service. As there is no indication that any arthritis manifested to a degree of 10 percent or more within one year after discharge, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption of soundness can be rebutted by a showing of clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Id. In this case, the Veteran's February 1979 and March 2000 deployment examinations found a normal spine. The Veteran has submitted private treatment records showing treatment in January 1999 for back pain following a fall down stairs. He was diagnosed with low back strain. Nevertheless, the record does not show that this injury resulted in a chronic disability. Indeed, the Veteran specifically denied recurrent back pain in his March 2000 Report of Medical History. Additionally, the June 2010 VA examiner stated that it is "possible that he may have had an asymptomatic pars fracture or L5-S1 spondylolisthesis that did not become symptomatic until after he left service." That this is in the realm of possibility is not the same as clear and unmistakable that such a condition pre-existed service. As such, while this pre-service injury is well-documented, clear and unmistakable evidence of a pre-existing back condition has not been shown. As such, the presumption of soundness is not rebutted. Thus, the claim is treated as an ordinary claim for service connection. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The record contains a current diagnosis of spondylolisthesis, degenerative disc disease, osteoarthritis, and lumbar stenosis. See generally, VA treatment records. Thus, the current disability requirement has been met. With regard to the second requirement of an in-service occurrence or aggravation of a disease or injury, the Veteran's service treatment records do not show in-service complaints of, diagnosis of, or treatment for a low back disability or injury. Nevertheless, a layperson is competent to report on the onset and continuity of observable symptomatology. 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). During this appeal, the Veteran has reported a history of low back pain related to "bouncing around" in the back of a humvee. See e.g., August 2005 statement; December 2008 hearing; June 2009 VA examination. At his December 2008 hearing, the Veteran clarified that this was the same injury that led to his service connected bilateral knee disabilities and reported that at the time of the injury, the medical staff was more concerned about his knee injuries and refused to listen to his complaints about a back injury. A rough ride in the back of a humvee is consistent with the conditions of the Veteran's service. Whether this led to a back injury is less clear as, despite the Veteran's contentions that the lack of documentation was due to the medical staff ignoring his complaints, the Veteran failed to rectify this oversight on his self-reported September 2000 and October 2000 Reports of Medical History. Instead, the Veteran specifically denied recurrent back pain or any back injury on those documents. Additionally, the record does not contain evidence of a medical nexus between the in-service disease or injury and the Veteran's current disability. The May 2013 VA neurosurgeon reviewer opined that it was less likely as not that the Veteran's current back disability was incurred in or caused by his military service. By way of rationale, this reviewer noted the lack of documentation of the claimed injury, the ubiquitous nature of low back pain, and the Veteran's age at the time of his first post-service complaint of back pain compared to the instance of back pain in the general population. The record does not contain a positive medical opinion. Thus, the Board finds that the medical nexus requirement has not been met. Alternately, service connection for this disability may be established by a continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions, such as arthritis, explicitly recognized as chronic 38 C.F.R. § 3.309(a)). The evidence of record shows the first documented complaints of low back pain post-service in August 2002. The Veteran is competent to report a history of back symptoms dating back to service; however, these statements must be considered in light of the entire record. Layno v. Brown, 6 Vet. App. 465 (1994); Madden v. Brown, 125 F. 3d 1447, 1481 (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"). In this case, the Veteran's conflicting reports on the onset of his back pain have proven him a poor historian and therefore undercut his credibility. Specifically, his lay statements suggesting an in-service onset of back pain related to a rough ride in a humvee are contradicted by his September 2000 and October 2000 Reports of Medical History, after this alleged injury, in which the Veteran specifically denied recurrent back pain or any back injury. Again, at the time of his September 2001 periodic examination for the National Guard, the Veteran denied recurrent back pain or any back injury and his spine was found to be normal. Furthermore, in his July 2008 statement, the Veteran claims that his back pain began in January 1999. A September 2005 VA treatment record give a 10-year or more history of this pain, suggesting a 1995 onset. In a June 2007 statement, the Veteran reported chronic low back pain since he was 20 years old (approximately 1978), noting treatment in 1996. Based on these inconsistencies, the Board finds that the Veteran is not credible with regard to his reports of a continuity of symptoms since service. Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran has claimed service connection for his low back disorder as secondary to his knee disabilities. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, the Veteran has a current low back disability diagnosis. Likewise, he is service connected for bilateral knee disabilities. Thus, the first two requirements for secondary service connection have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the service-connected knee disabilities and the current low back disorder. In this regard, the June 2009 VA examiner opined that the Veteran's current low back condition was not related to his service connected knee condition, noting that while there are many possible etiologies of spondylolisthesis, abnormal weightbearing or any condition of the lower extremities do not contribute to this condition. This opinion is uncontradicted in the record. To the extent that the Veteran himself believes that his current back disorder is due to his military service or his service connected knee disabilities, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and includes a significant intervening injury. As such, the Veteran is not competent to address etiology in the present case. Therefore, service connection is not warranted. In short, for reasons expressed immediately above, the claim of service connection for a back disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a back disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs