Citation Nr: 1327419 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-48 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1963 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2011 when it was reopened and remanded for further development. FINDING OF FACT It is not shown that the Veteran sustained a back injury in service; his current low back disability was not noted in service; arthritis of the low back was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that his current low back disability (degenerative disc and joint disease) is related to his service/back complaints noted therein. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A January 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in February 2005 and October 2011. As is discussed in greater detail below, the reports of those examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran asserts in April 2012 correspondence that his last VA examination was 28 months prior and that he is entitled to a new examination to assess the severity of his low back disability. The Board notes that the medical question presented in this matter is one of a nexus between the Veteran's current low back disabilities and his service/events therein. Current findings regarding degree of disability do not address that question. In June 2011, VA received a formal finding from the National Personnel Records Center (NPRC) indicating that it could not locate any records related to alleged inpatient treatment of the Veteran at Fort Benning between June and July 1963. He asserts in April 2012 correspondence that VA has a heightened duty to assist him because the NPRC did not find any relevant records. The heightened duty to assist is triggered when records known to have existed cannot be located because they were lost or destroyed, not when there is no evidence such records ever existed. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005). Here, there is no indication other than the Veteran's lay testimony, found below to be not credible, that the alleged records might exist. Thus, the Board finds that there is no heightened duty to assist. See D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service (one year for arthritis). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file and in the "Virtual VA" electronic records storage system. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. Factual Background In his original October 1998 claim for service connection, the Veteran stated that [i]n July 1963 I was in Jump School at Ft. Benning, GA. I was going through the Ranger Confidence Course. I fell approx. 30' off the top of a cargo net backwards. After I hit the ground on my back I got up, ran a few feet then passed out. I woke up in Martin Army Hosp. # 1113 at Ft. Benning. I was later released in much pain. The Dr. said some day I would have back problems. I now have a great deal of pain most of the time. The Veteran's service treatment records (STRs) are silent for injury, complaints, treatment, or diagnoses related to a low back injury following a fall. They do include reports of treatment for various complaints, including a sinus condition, tinnitus, a bruised Achilles tendon, and genitourinary issues. He twice complained of back pain associated with his genitourinary conditions. On June 23, 1963, while stationed at Fort Benning, he reported to two different dispensaries. In September 1965, the Veteran was hospitalized for five days at Fort Bragg for treatment of a genitourinary complaint. On January 1966 service separation examination, the Veteran's spine was normal on clinical evaluation; his report of medical history was silent as to a back injury or any related disability. In September 1966, following separation from service, the Veteran was involved in a motor vehicle accident (MVA). He was treated by several different physicians in 1967 and 1968 for injuries sustained in that accident, including a fractured sternum (confirmed by x-rays) and an injury to the coccyx. In a June 1967 letter summarizing his treatment of the Veteran's coccyx injury, Dr. I. L. V. Z. wrote that he saw this patient initially on January 17, 1967. He had complaints about the lower portion of his spine, which he said was injured when he was involved in a car accident on September 9 and was thrown from the car. . . . He had no complaints with this member before he was in the accident. . . . Orthopedic examination of the lower back showed relatively good strength and function here. . . . X-rays of the lower back including the coccyx showed no evidence of bone injury or disease. This man was advised that he had a soft tissue involvement of his lower back, apparently a coccydynis, post-traumatic, which was probably the result of his car accident in September. I . . . told him that I did not think that he could expect any improvement in his condition without removal of the offending member. This was done . . . on February 6, 1967. He had a smooth post-operative course and has been seen in my office at regular intervals since that time. When last seen on May 17 most of the unpleasant complaints had disappeared about the lowest portion of his spine . . . . In summary this man has made a fairly good response up to the present time with removal of his coccyx, I would expect him to have some scarring and possibly some residual soreness and disability of this member which would be aggravated by prolonged sitting. The record is silent for any additional complaints of or treatment for a back condition until September 1988, when the Veteran was found to have chronic lower back pain secondary to lumbar strain. In October 1995, the Veteran complained of back pain and sought the same manner of treatment he had received "a couple of years ago for chronic back pain." In September 1998, he complained of back pain, but the record notes pain only in the cervical spine and left shoulder. In a December 1998 statement, the Veteran's treating physician indicated that the Veteran had been treated at that clinic since 1987 and that he was seen for "chronic and ongoing back pain . . . of a progressive nature." A back disability was not diagnosed. On private examination in June 2000, the Veteran's past medical history included, as pertinent, an MVA resulting in a fractured sternum and torn diaphragm. A surgical history of coccyx removal was noted, but no history of back trauma or fall was noted. The spine was normal on clinical evaluation. In October 2001, the Veteran complained of low back pain of a week's duration. He provided a history of a MVA and a fall. The diagnosis was lumbar strain. In a letter in April 2002, Dr. J. A. B. stated that the Veteran "is a patient whom my clinical [sic] has followed with chronic back pain. He reports the back pain initially began while he was in the service and has been intermittently exacerbated since that time." A back disability was not diagnosed. During a July 2003 hearing before a decision review officer (DRO), the Veteran testified that, in service, he fell off a 32 foot high wall during physical training, ran 50 feet, passed out, and woke up in the hospital. He stated that the doctor at the hospital suggested surgery and told him that he would have "real problems" when he "[got] to be about 50 years old" because he had "done quite a bit of damage to [his] lower disc." He stated that he had back pain after the fall, but did not seek treatment because he did not want to be recycled and because, in his unit, "we just didn't go on sick call; we endured it." He also indicated that he brought up the issue of back pain during his separation examination, but that his history of back trauma was not recorded. He related that he received treatment for his back immediately after service, but was unable to obtain any records related to that treatment. He stated that he was told by Dr. I. L. V. Z. that his coccyx removal was the result of an injury prior to the MVA, likely the alleged injury in service "because I hadn't had any injury to my tailbone [in the MVA]. In other words, the wreck didn't cause any of that." The Veteran indicated that he may have additional medical records supporting his claim that were not in the record, and the DRO instructed him to submit any additional relevant documentation that was not already part of the record. He has not submitted any additional medical records from Dr. I. L. V. Z., nor any other medical records, attributing his coccyx injury to an injury in service based on other than his self-reported history. In a February 2004 correspondence to VA, the Veteran asserted that STRs indicating dispensary visits in June 1963 are "a definite note of my hospital stay in the Ft. Benning hospital." [Notably, he has consistently asserted that the alleged injury occurred in July 1963 and dispensary visits do not reflect hospitalization.] In February 2005 VA spine examination, the Veteran reiterated his previous assertions regarding his alleged injury in service and stated that he "continued through jump school and ultimately had 34 parachute jumps while he was in the service." The examiner reviewed the claims file, noting in particular the in-service complaints of back pain associated with genitourinary conditions and Dr. I. L. V. Z.'s notes regarding the 1966 MVA and subsequent treatment. The diagnosis was "[c]hronic mechanical low back pain secondary to degenerative changes of the lumbar spine" that was less likely than not related to an in-service fall, and "it would be pure speculation to try to make that correlation." The examiner acknowledged that a 30 foot fall could cause back pain, but noted that the Veteran continued to make parachute jumps for three years following the alleged injury, that the Veteran's MVA was of enough force to "reasonably cause chronic back pain," and that the contemporaneous treatment records following the MVA record the Veteran's denial of prior back pain. In August 2008, the Veteran reported a medical history of coccyx removal due to military injury; chronic mechanical low back pain was diagnosed. In a third letter dated in November 2008, the Veteran's treating physician reiterated the Veteran's reports of a fall and onset of back symptomatology, noted the 1966 MVA, and concluded that the Veteran's "current complaints of back pain relate to his military injury and I believe are separate from his car accident." In December 2009, the Veteran submitted a statement in which he averred that the MVA broke his sternum but "had nothing to do with my back." On VA examination in October 2011, the examiner opined that the Veteran's back disability was less likely than not related to an in-service injury or disease. The examiner noted that "[n]on specific lower back pain is a common result of active prostatic infections," for which the Veteran was treated in service. The examiner further noted the absence of any trauma or related treatment recorded in the STRs and observed that "[t]he veteran continued to in [sic] jump school, finally having a total of 34 parachute jumps. It is unlikely that he would have been allowed or could have physically endured airborne school, had he been suffering from a significant lumbar condition." The examiner cited the lack of evidence of a lumbar condition in the 1967 x-rays taken following the MVA, stating that "[t]his indicates that the underlying cause of the veteran's current mechanical lumbar pain, that is, his chronic degenerative disc and joint disease, had not begun in 1967, and there for [sic] could not have been caused by his previous military service." As to diagnoses in the record of lumbar strain, the examination noted that "[r]ecurrent muscular strains of the back have not been found to be causative for degenerative disease of the lumbar spine. Finally, the examiner disagreed with the nexus opinions from Dr. J. A. B., concluding that they were "based on mere speculation" because they depended on medical history taken 30 years after service and did not reference any other evidence. Analysis It is not in dispute that the Veteran has a current low back disability, diagnosed on October 2011 VA examination as chronic degenerative disc and joint disease. However, the Veteran's STRs, including his service separation examination medical history reports, contain no mention of a back trauma, a spine disability, or complaints of back pain not attributed to other causes. On service separation examination his spine was normal on clinical evaluation. The only evidence indicating that the Veteran sustained a back injury in service consists of his own accounts, to include in his self-reported medical histories, and as noted in the nexus opinions from Dr. J. A. B. The Veteran's account of a back injury in service from falling on an obstacle course is not inherently implausible. Given the rigorous nature of paratroop training, it may reasonably be conceded that such an injury occurred. However, in light of the overall evidence, the Veteran's accounts describing the severity of the injury lack credibility. In essence, he asserts that he sustained a back injury of such nature and severity that he has had continuing low back pain ever since. The record provides no corroboration for the account, and what evidence there is in the matter contradicts that account. First of all, the Veteran's STRs contain no mention of a back trauma (such as he described) or treatment for such injury. While the Veteran seeks to explain this away by relating that he did not want to be recycled and that "[p]eople just didn't seem to go on sick call for some reason" (see DRO Hearing Transcript, page 5), in fact the record shows that spanning the time of his active service he was seen for multiple complaints, some of apparent lesser gravity than would be associated with a spine injury resulting in chronic pain (including sinusitis, tinnitus, a bruised Achilles' tendon, and several genitourinary problems, one of which required hospitalization). Logically, if interspersed among these problems was a significant back injury resulting from a fall and causing chronic pain (and possibly requiring surgery), it likewise would have been recorded in the STRs. Furthermore, while the Veteran explained that he mentioned a back injury and residual pain at his separation examination, but such history was not recorded, the fact remains that his spine was normal on clinical evaluation on service separation examination (suggesting that if an injury had occurred, symptoms had resolved). As to the Veteran's assertions that Dr. I. L. V. Z. attributed the coccyx injury to an event in service, prior to his postservice MVA, such assertions are directly contradicted by the physician's 1967 letter summarizing treatment for said injury. Dr. I. L. V. Z.'s letter was contemporaneous with the postservice injury. As it is also by the treatment provider, it is highly probative evidence that contradicts the Veteran's more recent accounts. Finally, it is noteworthy that the initial notation of a history of a fall in service resulting in back trauma, and chronic complaints thereafter, is in 1998 (more than 30 years after service) treatment records, when the Veteran first filed a claim seeking service connection for a low back disability, suggesting that the account is compensation-driven, and self-serving, which weighs against his credibility. See Pond v. West, 12 Vet. App. 341 (1999). Additionally, the length of the postservice interval before the claim was made is, of itself, a factor for consideration (i.e., against the claim). Considering all the factors discussed above, the Board finds the Veteran's accounts of a back injury in service, resulting in continuous low back symptoms since, to not be credible, and therefore of no probative value. As to the positive nexus opinions provided by Dr. J. A. B., the Board notes that he is not shown to have reviewed the Veteran's claims file, as did both VA providers. None of Dr. J. A. B.'s letters reflects a clinical diagnosis of a low back disability for which service connection could be granted or is accompanied by explanation of rationale for the opinion or citation to supporting factual data; all three letters accept without comment the Veteran's reports of an injury in service with onset of the back pain at the time. As the opinions are clearly based on the Veteran's own accounts, which the Board has found to not be credible, they are without probative value. On the other hand, the Board finds the opinion expressed by the October 2011 VA examiner to be highly probative, and ultimately persuasive, evidence. First of all, the opinion reflects a familiarity with the entire record, as it cites freely to supporting factual data. Further, it is accompanied by an explanation of rationale that cites extensively to the factual data (e.g., that after the alleged injury in service the Veteran returned to parachutist training, completing numerous jumps and airborne training, which contraindicates the existence of any significant residual pathology from an injury earlier in service; normal spine X-rays after the alleged injury). It also identifies alternate (genitourinary, not musculoskeletal) pathology to account for the back complaints noted in service. Finally, the examiner explains the reasons why the private opinions should be rejected, including that they are based on speculation, and do not cite to supporting factual data, but rely entirely on the Veteran's own history. Regarding the Veteran's own opinion linking his current low back disability to an injury in service, the Board finds it to be without probative value. To the extent that it relies on a theory of continuity, the Board rejects it as self-serving, contradicted by factual data, and not credible. To the extent that it seeks to link current insidious processes such as lumbar disc and joint disease to remote events in service in the absence of continuity, it is not competent evidence, as such nexus is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Where that leaves the Veteran's claim is that, while he has satisfied the initial threshold requirement for establishing service connection (evidence of the disability), he has failed to meet a further critical element for establishing service connection, probative evidence of a nexus between the current disability and an injury in service. Accordingly, the preponderance of the evidence is against this claim, and the appeal in this matter must be denied. ORDER The appeal seeking service connection for a low back disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs