Citation Nr: 1327176 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-04 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to a back disability. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that the Veteran was scheduled to present testimony before a Veterans Law Judge in July 2013. However, the Veteran did not report to the hearing. As the record does not contain further explanation as to why the he did not report to the hearing, or any additional requests for an appeals hearing, the Board deems the Veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Neither a back or a psychiatric disability began in service, there is no in-service disease or injury to which either a back disability or any acquired psychiatric disorder can be linked, and there is no competent and credible evidence establishing any nexus between current back or psychiatric problems and service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). 2. The criteria for service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to a back disability, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his January 2009 claim and September 2009 notice of disagreement, the Veteran asserts that he incurred a back injury in service due to a vehicle accident in the field in Germany while traveling on maneuvers. He asserts that he was treated in the field in approximately 1972, and that this accident resulted in current disability. He further asserts that he has depression secondary to his back pain. Initially, while the Veteran has asserted that he incurred a back injury in service due to a vehicle accident in the field in Germany and was treated in the field in approximately 1972, the record does not establish any in-service disease or injury to which either a back disability or any acquired psychiatric disorder can be linked. Also, the record does not reflect, and the Veteran has not contended, that any psychiatric problems began in service or until many years after service. While service treatment records reflect treatment for an upper respiratory infection in February 1971 and a fly bite of the left hand in July 1972, they reflect no treatment, findings, or reports relating to any back or psychiatric problems. The September 1972 report of examination at separation reflects a normal clinical evaluation of the spine and musculoskeletal system and a normal psychiatric evaluation, with no back or mental problems noted. Importantly, at that time, the Veteran reported that he did not have and had never had recurrent back pain, depression, excessive worry, or nervous trouble of any sort. He further reported at that time that he had never been treated for a mental condition, never been a patient in any type of hospital, and had never had any illness or injury other than those already noted. Such lack of any acknowledgement of back or mental problems in service, and the Veteran's own statements in September 1972 denying any back problems or previous injury, are highly probative evidence against his own claims. The Board acknowledges the Veteran's assertion in his September 2009 notice of disagreement that there might be a record of his asserted in-service vehicle accident in unit records. However, even assuming such vehicle accident occurred, service treatment records, particularly the Veteran's own statements in September 1972 regarding the absence of any history of back problems or any other previous injury not stated at that time, weigh heavily against a finding that any such accident, if it had occurred, resulted in any back injury to the Veteran or subsequent chronic back problem associated with the injury. The Board also recognizes that the Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. However, given the above, the Board finds that the Veteran's assertions regarding his in-service back injury and a constant problem since that time are simply not accurate. Also, as there is no indication of any back arthritis in service or within a year of service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable. Furthermore, the record does not reflect that any back or psychiatric problems developed until years after the Veteran's period of service, which only support the finding above. The earliest indication of any back or mental problems in the record is hospital records dated in March 1992, which indicate that the Veteran was admitted after an overdose gesture by Clorox and beer, at which time he admitted to increased depression including decreased appetite and sleep, and the recent stressors of financial and girlfriend problems. At that time, the Veteran reported that he had not worked for the past seven years after leaving a job of 18 years in the maintenance department of a company due to personal problems involving his wife and children. He also reported ongoing back problems making it difficult for him to currently explore employment options. He reported a history of ulcers and back pain, and denied any previous hospitalizations or outpatient involvement for mental illness. Follow-up March 1992 treatment records reflect that the Veteran continued to complain of depression but stated that he did not know why he was depressed (undermining his current belief), but that recently he had become progressively more depressed with his living situation, and that he complained of lower back pain on the right side of the lumbar vertebrae. The Veteran was hospitalized again in August 1992 for suicidal ideation, and it was noted that he had a history of depression and difficulty maintaining interpersonal relationships. VA treatment records beginning in July 2009 reflect complaints of chronic back pain and depression, with assessments of chronic back pain secondary to degenerative joint disease, and depression. VA treatment records from April 2012 to November 2012 reflect continuing psychiatric treatment. Thus, while the record reflects back and psychiatric problems dating back to March 1992, it does not contain credible evidence establishing any nexus between the Veteran's current back or psychiatric problems and service. While the Veteran may have depression related to his back problem, there is no medical evidence of record that relates either the Veteran's back disorder or any psychiatric problem to service, and the Veteran has not identified any; rather, in March 1992, it was noted that the Veteran had worked after service for 18 years in the maintenance department of a company, but left that position due to personal problems involving his wife and children. The Veteran's psychiatric problems in 1992 were generally noted to be related to current personal problems and, while the Veteran complained of back problems beginning in March 1992, he did not relate any such back problems to service until his January 2009 claim for service connection benefits. The facts do not support the Veteran's current contentions. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. See Jandreau, 492 F.3d 1372. In this case, the Veteran has asserted that his current back problems are due to an in-service injury, but has not asserted that he suffered recurrent back problems from the time of the injury; in this regard, in his September 1972 report of medical history, he reported not having any history of recurrent back pain. To the extent that that the Veteran is competent at all to relate current back problems to a remote in-service back injury, as the Board finds that the evidence weighs against a finding that any such injury occurred, the Board also finds that the Veteran's assertion of nexus is not credible. Therefore, while the record reflects current back and psychiatric problems dating back to at least March 1992, it does not establish any in-service disease or injury to which either a back disability or any acquired psychiatric disorder can be linked, and there is no competent and credible evidence establishing any nexus between the Veteran's current back or psychiatric problems and service. Finally, while the Veteran has asserted that an acquired psychiatric disorder is secondary to a back disability, as service connection for a back disability has not been established, service connection for such psychiatric disorder on a secondary basis is not warranted here. Accordingly, the Board finds that the claims for service connection for a back disability and an acquired psychiatric disorder, claimed as depression, to include as secondary to a back disability, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in January 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that 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). This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination was not obtained for the service connection claims because the evidence did not surpass the low threshold set by McLendon. Where the evidence does not establish that an event, injury, or disease occurred in service to which a current disability can be linked, or that a disability may be associated with service, there is no need to obtain a medical opinion regarding any nexus. As discussed above, the evidence does not establish any in-service disease or injury to which either a back disability or any acquired psychiatric disorder can be linked, and there is no medical or other competent and credible evidence suggesting any nexus between the Veteran's current back or psychiatric problems and service or any other such evidence that would warrant obtaining a medical nexus opinion. Accordingly, the Board finds that referral for a VA medical examination is not warranted. The Veteran's service treatment records, VA medical treatment records, and identified private treatment records have been obtained. The record reflects that, in June 1994, the Veteran reported that he began receiving Social Security Administration (SSA) disability benefits in 1992, but no SSA records are in the claims file. However, as noted above, by 1992 the Veteran's psychiatric and back problems had been established in the medical evidence, and the question is in this case is not one of current disability but of the relationship between the Veteran's claimed disabilities and any in-service injury or disease. As the Board finds here that the evidence does not establish any in-service disease or injury to which either a back disability or any acquired psychiatric disorder can be linked, the Veteran is not prejudiced by the lack of any SSA records in the claims file. Also, the Board notes the Veteran's assertion in his September 2009 notice of disagreement that there might be some record of his asserted in-service vehicle accident in his personnel or unit records. However, as discussed above, even assuming such vehicle accident occurred, the Board would find that the evidence weighs against a finding that any such accident resulted in any back injury to the Veteran or subsequent back problem. Thus, a remand to attempt to obtain any further personnel or unit records is not warranted. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. Service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to a back disability, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs