Citation Nr: 1327659 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-22 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1963 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2013. A transcript is of record. In April 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received later that month. In May 2013 the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In response, in July 2013 his representative offered further argument in support of his appeal. The Board will thus proceed with the consideration of his case. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW A back disability was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this 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. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content, as to all claims. With respect to the Dingess requirements, in the February 2008 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 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 claims file contains service treatment records, VA treatment records, and private treatment records. An opinion was obtained from a VA physician's assistant in April 2013. Findings from the April 2013 opinion are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board finds that the opinion is sufficient even though the April 2013 request from the Board was that an orthopedic surgeon or neurosurgeon provide the opinion. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for service connection for a back disability. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran is seeking service connection for a back disability. The service treatment records do not show any complaints or treatment related to the back. The Veteran first had treatment for his back in 1987 and had a job in an auto body shop for two to three years right after service, which included lifting and bending over. Private treatment records from 1987 show that the Veteran complained of back pain. It was noted that his back was a chronic problem and that it had worsened when the Veteran resumed working on cars. The assessment was a lumbosacral strain. October 1989 treatment records indicate that the Veteran needed muscle relaxants for his back. March 1990 treatment records state that the Veteran reported that he had had back pain since 1972. He had been in three motor vehicle accidents since then and at the time of treatment had back spasms. February 1991 private treatment records indicate that the Veteran had chronic back pain. A July 2008 letter from a private chiropractor who treated the Veteran in 1996 indicates that the Veteran reported injuring himself during military service from loading and unloading shells. The Veteran sustained additional repetitive trauma to the low back from lifting and bending while working in auto repair. The chiropractor wrote that he was not aware that the Veteran had had significant additional injury since 1996, and therefore it was his opinion that the back disorder was more likely than not a result of military service. The July 2008 opinion from the private chiropractor cannot be given probative value because it does not contain a sufficient rationale. Further, the opinion does not discuss the 1972 automobile accident, and therefore the statement that the Veteran had not had significant additional injury since 1996 may have been based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinion based upon inaccurate factual premise has no probative value). At March 2010 VA treatment the Veteran's wife reported that four years earlier the Veteran injured his back while moving furniture. There had been burning and tingling in the left foot since then, and the Veteran's back hurt when he walked. X-rays showed a compression fracture of L1. June 2010 VA rheumatology and arthritis treatment notes state that the Veteran had had episodic minor back trouble for years and that about three years before he woke up with intense back pain after moving his household belongings. Seeing a chiropractor had provided some relief. Later in June 2010 the Veteran reported that he had been in pain since picking up his 19 month old grandchild the previous Sunday and that before that his back had been doing much better. An August 2010 EMG showed no definitive electrodiagnostic evidence of motor radiculopathy, plexopathy, or peripheral neuropathy. December 2010 VA treatment records indicate that the back had slowly relapsed after an improvement with chiropractic treatment. In a November 2011 statement the Veteran reported that during his service there were many times that he loaded and unloaded a 105 howitzer onto a military truck, which hurt and damaged his back many times. However, he kept doing his job and did not complain. The Veteran had an examination arranged through VA QTC Services in July 2012 at which he reported injuring his back many time during service loading and unloading 105 Howitzers. However, he never complained of back pain during service. The examiner felt that the evidence showed that the Veteran had relatively minor back problems until three years before, when he moved his household belongings and sustained recurrent, continuous back problems with episodic syndrome affecting the left sciatic nerve. This was consistent with complaints of severe low back pain with radiation to the leg and tingling in the foot. The examiner opined that the currently diagnosed lumbar spine condition was at least as likely as not related to the intercurrent injury and less likely than not caused by or a result of the in-service injury, event or illness. Probative value cannot be given to the opinion because the examiner did not consider whether residuals from the in-service injury could have contributed to the severity of the post-service injury. October 2012 VA primary care treatment records indicate that the Veteran was using Vicodin for chronic low back pain. The Veteran testified at the January 2013 Board hearing that he injured his back during service when disposing of excess ammunition and did not seek medical care because he feared repercussions. He stated that he did not report having back pain at his discharge examination because he had been told that his time in the military would be extended if he did. In April 2013 a VA physician's assistant reviewed the record and opined that it was not at least as likely as not that the Veteran's back disability had its onset in service or within a year of service. It was also not at least as likely as not that the back disability had its onset in service or within a year of separation from service. The rationale was that July 2012 x-rays, which were taken 36 years after service, did not show evidence of degenerative changes or degenerative disc disease and were read as normal. Further, 2010 x-rays had shown minor arthritic changes. The physician's assistant felt that if the Veteran sustained any significant injury to his lower back during service there would have been significant degenerative changes noted on x-rays. It was less likely as not that the Veteran had anything more than a minor lumbar strain during military service that resolved without any residual effects. Further, the Veteran had three motor vehicle accidents between 1972 and 1989 and performed moderate to heavy work for many years. Despite that, the Veteran still only had minor, if any, degenerative changes in his lumbar spine with normal nerve studies and basically normal x-rays. As a finder of fact, the Board finds that the Veteran's reports of his in-service injury and of having back problems at separation are credible. However, the record does not show that the Veteran has had recurrent symptoms since service. At the March 1990 treatment the Veteran reported having back pain since 1972, which was six years after service and was when he had his first automobile accident. Further, March 2010 VA treatment records show a lay report of him injuring his back four years earlier while moving furniture. Therefore, the Veteran is not credible to the extent that he contents recurrent symptomatology since service. The April 2013 opinion is given probative value because the VA provider was informed of the pertinent facts, fully articulated the opinions, and supported the opinions with reasoned analyses. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. It is noted that the analysis explained from a medical standpoint why it was likely that the in-service injury resolved and was not connected to the current back disability. A back disability requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. The Veteran's statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). In addition, as discussed above, the credible lay evidence does not show recurrent symptomatology since service. In sum, the Board finds that the weight of the evidence is against the claim of service connection for a back disability. As the preponderance of the evidence is against the claim, the Board must deny service connection and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a back disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs