Citation Nr: 1328994	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  07-04 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a back disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from February 1973 to March 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for chronic low back pain.

The Veteran requested a Board hearing and was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in October 2011. The Veteran failed to report to this hearing and has provided no explanation for his failure to do so. He has not since requested that the hearing be rescheduled. As a result, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). 

This matter was previously before the Board in April 2012 and December 2012. Both times it was remanded for additional development. 

The Board has reviewed the Veteran's physical claims file and the electronic claims folder to ensure review of the totality of the evidence.


FINDINGS OF FACT

The weight of the evidence does not support a finding that the Veteran's current back disability had its onset during active duty, or is otherwise etiologically related his active military service. 


CONCLUSION OF LAW

The Veteran's current back disability was not incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Compliance with Stegall

As noted in the Introduction, the Board has remanded this claim on two prior occasions. The Board first remanded the claim in April 2012, instructing the RO to request and obtain copies of Social Security records, any additional VA treatment records, and schedule the Veteran for a spine examination. Social Security records were requested in April 2012 and received in May 2012. VA treatment records were obtained. With respect to the service treatment records missing from the file, a formal finding of their unavailability was in fact made in September 2005. A VA examination was scheduled, however, the Veteran failed to report.

The Board again remanded in December 2012 for clarification regarding the unavailability of the service treatment records (STRs), requesting additional medical treatment records from the Veteran, and to schedule another spine examination with the Veteran. 

A new spine examination was scheduled for April 2013, and the Veteran attended.

In May 2013, the Appeals Management Center (AMC) informed the Veteran that efforts to obtain his STRs had been unsuccessful.  The Veteran was informed that AMC had tried to obtain records from the Defense Personal Records Information Systems (DPRIS) and VA Records Management Center (RMC).  He was asked to provide any information he might have as to the location of any missing records and to provide copies of any outstanding records he had in his possession.  The Veteran did not provide any additional information regarding STRs and the AMC issued a Formal Finding of Unavailability regarding the Veteran's service treatment records, and the Veteran provided additional private treatment records.   Thus, VA has satisfies its duty to notify the Veteran of its inability to obtain records under 38 C.F.R. § 3.159(e).

As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance).

II. VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). 

The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Notice must be provided before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA complied with the duty to notify with letters dated March 2005, June 2005, and December 2012.

The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency.

VA has satisfied its duty to seek relevant records. It has successfully requested and obtained additional private medical records, VA medical records, and social security records. VA has requested service treatment records, however, they are unavailable. 

The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides a three element analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

A VA examination was performed in April 2013. The Veteran has not argued, and the record does not reflect, that this examination is inadequate.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiner considered the Veteran's relevant medical history and provides a well-reasoned and adequately supported opinion. 

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

III. Service Connection for Lower Back Disability

	A. Service Connection Requirements

Service connection will be granted if it is shown that the veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In order to establish service connection on a direct basis, the record must contain: (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).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

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 to the claimant.

B. Analysis

The Veteran asserts that his current back disability stems from a motor vehicle accident while on active duty. He contends that he was struck by an automobile while driving a moped and his back has hurt since the time of the accident.

Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In this instance however, service connection for arthritis on a presumptive basis is not warranted as the record does not show manifestations of arthritis within one year of the Veteran's service separation. 

With regard to the Veteran's claim for service connection on a direct basis, it is clear from the evidence of record that the Veteran has a current back disability. A number of private medical records and VA treatment records have documented the Veteran's present back disability, including a number of medications that he takes in order to address the pain associated with the condition.  Moreover, the recent VA examination in April 2013 confirmed the presence of a current back disability (degenerative disc disease of the lumbar spine).  Accordingly, Shedden element (1) for service connection is satisfied.

With respect to Shedden element (2), service treatment records are largely unavailable for the Veteran. The only service treatment record available is the Veteran's entrance examination, which contains nothing of relevance. In February 1980, the Veteran signed a waiver requesting no separation exam, so it appears from the record that one was never conducted. 

Nevertheless, the Veteran has provided credible lay statements supporting his assertion that the accident and injury occurred. A November 2005 statement from the Veteran's motor pool Sergeant supports the Veteran's assertion.  The Sergeant states that he saw the Veteran at the scene of the accident and the "mo-ped was messed up" and the Veteran "had visible road rash injuries on his back and knees" and missed work for a time after the accident.  Similarly, the Veteran's wife also provided a November 2005 statement in support of the Veteran's assertion. The Veteran's wife stated that when the Veteran came home the night of the accident "he had Ace bandages all over him" and "stayed in bed the next couple of days," and complained of pain in his knees and back after the accident.

Despite the lack of service treatment records to corroborate the Veteran's lay evidence, the Board has no reason to disbelieve the Veteran's account of the accident, which is supported by the Veteran's wife and Sergeant. Thus, the Board finds his statements pertaining to his in-service moped accident are credible.  As a result, Shedden element (2) for service connection is satisfied.

With respect to element (3), the "nexus" requirement, the Veteran has provided a number of private medical records. These records make clear that the Veteran has a current back disability. However, they do not address the link, or "nexus" between the Veteran's current back disability and the in-service moped accident. As such, the private medical records submitted by the Veteran provide little proof of a connection between the present disability and the accident.

The only medical evidence addressing the etiology of the Veteran's back disability is contained in an April 2013 VA examination. After reviewing the Veteran's claim file and performing an examination, the examiner concluded that the Veteran's current condition, degenerative disc disease, was less likely than not incurred in or caused by the in-service accident.   In the opinion, the examiner acknowledges the Veteran's moped accident during service, but noted the lack of treatment until 2003 at which time the Veteran report only a 2 month history of back pain.  This medical evidence weighs strongly against the Veteran's claim and the Board places great probative weight on this opinion.  

The evidence in support of a nexus between the Veteran's in-service accident and his current back disability consists of statements made by the Veteran and his wife concerning recurrent symptoms such as pain since the injury.  In her November 2005 statement, the Veteran's wife suggests that as a result of the accident, she now has to help him stand, move, and put on "pain patches." The Veteran asserts that since his injury he has "had constant pain in my back which has resulted in deteriorated discs in the lower back." The Veteran feels "the back pain is a direct result of this accident." While the Veteran is competent to report symptoms of back pain, he is not competent to make render opinions on complex medical questions such as the etiology of his currently diagnosed back disability.  Accordingly, the Board has placed greater probative weight on the conclusions reached by the VA examiner, who, as a medical professional, is competent to render opinions regarding medical matters.

Moreover, the Veteran's statements regarding his constant back pain since are inconsistent with prior statements at the August 2003 private examination.  During this 2003 examination, the Veteran did not report a history of back pain since service, rather he complained of "mid to low back pain for the past 2 months." More significantly, rather than attributing his pain to his service injury, the Veteran denied "any injury preceding his pain." 

The Veteran's current statements regarding the onset of his current back disability and a continuity of symptomatology since service are directly contradicted by his statements during treatment in August 2003.  The Board places greater probative value on the statements made in August 2003.  See Curry v. Brown 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history).  In finding that the Veteran's current asserts regarding a continuity of symptomatology since service are not credible, the Board observes that current statements of the Veteran and his wife reporting pain since service were made in connection with seeking monetary compensation.  See Cartright v. Derwinski 2 Vet. App. 24, 25 (1991) (pecuniary interest in benefits may affect credibility of a claimant's statements).  Thus, the Board has placed greater value on the 2 month history of back pain with no prior injury reported by the Veteran in August 2003 when he was seeking medical care rather than compensation for his back pain.  

In light of the foregoing, the Board concludes that the weight of the evidence does not support a finding that there is a causal relationship between the Veteran's present disability and the in-service accident. As a result, element (3) for service connection is not met, and service connection for the Veteran's back disability cannot be granted. 


ORDER

Service connection for a back disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs