Citation Nr: 1328640 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-17 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1976, February 1977 to February 1979, and May 1980 to January 1995. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Huntington, West Virginia, which denied the claims. The claims have since been transferred to the Roanoke, Virginia, RO. FINDINGS OF FACT 1. The Veteran failed to report for a June 2013 VA examination scheduled in conjunction with his service connection claims and good cause for his failure to report has not been shown. 2. The Veteran's low back disorder, diagnosed as spinal degenerative joint disease, is not shown by the competent and probative evidence of record to be causally related to a disease, injury or event in service, either directly or presumptively. 3. The Veteran is not shown by the probative medical evidence of record to have a current diagnosis of a right shoulder disorder that was either caused by, or related to active military service. CONCLUSIONS OF LAW 1. The Veteran's low back disorder was neither incurred in, nor aggravated by, active military service and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. A right shoulder disorder was neither incurred in, nor aggravated by, active military service and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the VA Secretary (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, a pre-adjudication letter, dated in July 2008, afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records. Additionally, the claims file contains the Veteran's statements in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been associated with the claims folder. The Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In May 2013, the Veteran was scheduled for a June 2013 compensation and pension examination. However, the Veteran failed to report for the examination or notify the RO that he would not be there. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Title 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Court has also held that the burden is on VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Board notes that although the Veteran's claims file does not contain a file copy of an actual notice letter from the VA Medical Center ("VAMC"), per standard VA practice, the Veteran's examination request report is included in his file. Moreover, there is no evidence to suggest that the Veteran recently moved and/or changed his mailing address, as there has been no returned/undeliverable correspondence since the scheduling of his VA examination. In this respect, the Board points out that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992). While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. In this case, no clear evidence to the contrary has been presented to rebut the presumption that the Veteran was notified of the June 2013 examination. Therefore, although the record does not contain a VA examination, the Board will proceed with a decision. Accordingly, the Board finds that VA has fully complied with the notice and assistance requirements of the VCAA and its regulations. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Discussion The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he has a chronic low back disorder as a result of active duty service. Specifically, he has asserted that his "back pain" results from Aircrew Candidate School training in 1981, including a very demanding obstacle course. See notice of disagreement, July 2009. Similarly, he avers that he has a right shoulder disorder due to "a seemingly non[-]reportable incident" during Aircrew Candidate School and Survival, Evasion, Resistance, and Escape (SERE) school. Id. As an initial matter, a review of the Veteran's February 1979 separation examination report for his first period of active duty service revealed findings within normal limits for the spine and other musculoskeletal system, as did his April 1980 enlistment examination for his second period of active service. Similarly, there was no evidence of a chronic back or right shoulder disorder at the time of his November 1980 Aircrew Candidate school examination. The service treatment records show only one incident of treatment for, or diagnosis of a back disorder, which occurred in October 1981, when the Veteran was seen in sick call with complaints of back pain for three days. A physical evaluation, however, revealed findings essentially within normal limits without point tenderness or any loss of range of motion of the spine. The diagnosis was mild muscle strain and the Veteran was treated with heat, Motrin and Tylenol. Subsequent treatment reports show no evidence that the Veteran ever again complained of, sought treatment for, or was diagnosed with a chronic low back disorder, and the treatment records are completely devoid of any evidence of complaints of, treatment for, or a diagnosis of a right shoulder disorder. Although he has reported that he was never afforded a service retirement examination (and, indeed, there is no such report among his service treatment records), an October 1992 annual flight air crew examination report continued to show no evidence of a spine or other musculoskeletal system disorder. On the accompanying medical history report, the Veteran specifically noted that he did not have, and had not previously had, recurrent back pain, arthritis, rheumatism or bursitis, or a painful or "trick" shoulder. Post-service private treatment records demonstrate that, following service, the Veteran did not seek treatment for a low back disorder until October 2002, when he was seen by a Dr. Fisher with reported of left-sided low back pain for the past few days. In June 2003, Dr. Fisher assessed the Veteran as having "back pain," but did not provide an actual underlying diagnosis. In April 2006, the Veteran was seen by a Dr. Egan with complaints of low back pain that he said had occurred before about a year earlier. At that time, however, no diagnosis was made, and there was no indication in the treatment notes that the Veteran reported having suffered a low back injury or chronic low back disability during military service. A subsequent, treatment record with Dr. Egan shows that the Veteran was not seen again for complaints of low back pain until May 2008, when he reported that he had been experiencing low back pain on and off since being involving in a police car motor vehicle accident 5-6 years earlier (i.e., 2002-2003). At that time, the diagnosis was spinal degenerative joint disease at levels L1-L4. Again, however, there was no indication, either from the Veteran or Dr. Egan, that the condition had any relationship to military service. The post-service treatment reports also show no evidence of the existence of a right shoulder disorder. Although a March 2003 treatment report from Dr. Fisher shows an assessment of right shoulder pain, mere pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Based on a review of the complete evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a low back disorder and a right shoulder disorder. As previously discussed, there is no competent medical evidence to suggest that any current diagnosis of degenerative joint disease of the spine is the result of, or is otherwise related to active duty service. In this regard, the Board notes that a prolonged period without complaints or symptoms of a disability 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). Here, the record indicates that the Veteran was not diagnosed with lumbar spine degenerative joint disease until approximately 13 years after separation from military service, and more than 25 years after his 1981 mild muscle strain. The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the Veteran's claim on both a direct and presumptive basis. With regard to his claimed right shoulder disorder, as noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, supra; Brammer v. Derwinski, supra. In this case, there is no medical evidence of record demonstrating that the Veteran has a current diagnosis of a right shoulder disorder related to his recognized military service. It fact, it is unclear from the record if such diagnosis has ever been established. In addition to the medical evidence, the Board has considered the Veteran's lay reports that his low back disorder is a result of his active duty service as well as his statements regarding continuous back symptomatology since service. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Under Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Board may not find that a claimant's report of in-service symptoms lacks credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, the Board believes the instant case is clearly distinguishable, as the Board is not relying solely upon a general absence of complaints during service or physical findings within normal limits at separation, but has also taken into account the Veteran's own statements to his private physician, Dr. Egan, when he reported experiencing low back pain on and off ever since being involved in a motor vehicle accident. See treatment record, May 2008. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, in light of the clearly contradictory statements made to his personal physician in May 2008, the Board does not find the Veteran's statements regarding a chronic low back disorder since service to be credible. Finally, as noted above, although the Veteran was scheduled for a VA examination, the result of which may have demonstrated a positive nexus to his current spinal degenerative joint disease and service, the Veteran failed to report for such examination. (Continued on next page) Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. In arriving at the decision to deny the claims, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs