Citation Nr: 1329140 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 04-37 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disability (to include lumbar degenerative disc disease (DDD), to include claimed as secondary to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who had active service in the United States Navy from September 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claims file is now in the jurisdiction of the Oakland, California RO. At his request the Veteran was scheduled for a hearing before the Board in December 2008; he failed to report. In February 2009, November 2010, and March 2012 the Board remanded the claim for additional development and adjudicative action. The issue of service connection for a skin disability had also been on appeal. A May 2013 rating decision granted service connection for a skin disability (xeroderma). The United States Court of Appeals for the Federal Circuit has held that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, the skin disability issue is no longer before the Board. FINDINGS OF FACT The Veteran's low back complaints in service were acute and resolved without residuals; a chronic low back disability was not manifested in service; arthritis of the low back was not manifested in the first year following his discharge from active duty; and the Veteran's current low back disability is not shown to be related to an injury, disease, or event in service, to include exposure to herbicides therein. CONCLUSION OF LAW Service connection for a low back disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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. An August 2003 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. An August 2007 letter also informed the Veteran of disability rating and effective date criteria and subsequent supplemental statements of the case (SSOCs) readjudicated the matter after the Veteran and his representative had opportunity to respond and provide additional evidence. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). Further, in a July 2003 statement, the Veteran stated that he understood the requirements to substaniate his claim and had been informed of the evidence he was responsible for providing and the evidence VA would attempt to obtain on his behalf. [Such notice was provided in connection with the Veteran's participation in a VA Agent Orange Registry examination which noted chronic low back pain.] The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in May 2009 (with a September 2009 addendum) and January 2011 (with an April 2012 addendum). The Board finds that those examinations cumulatively are adequate for rating purposes, as the examiners expressed familiarity with the history of the disability and conducted thorough examinations, noting all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO has substantially complied with the February 2009, November 2010, and March 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. 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; 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 disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic disabilities (including arthritis or degenerative joint disease (DJD)) may be service-connected on a presumptive basis if manifested in a specified period of time following a veteran's discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to an herbicide agent therein, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included among the enumerated diseases, service connection may nonetheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means 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 layperson. 38 C.F.R. § 3.159(a)(2). 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 Veteran's STRs show that on August 1965 service enlistment examination his spine was normal on clinical evaluation. He was seen with complaints of back pain in December 1966. The STRs are otherwise silent for any complaints, findings, treatment, or diagnosis regarding the back. On October 1967 service separation examination the spine was normal on clinical evaluation. The earliest documented postservice finding pertaining to the Veteran's back was on February 1998 VA general medical examination in connection with an unrelated claim, when the diagnosis was DDD L4-L5 with spurs. Subsequent VA treatment records note the Veteran's continued complaints of low back pain. In a June 2003 letter, the Overton Brooks VA Medical Center notified the Veteran that his Agent Orange Registry examination had noted chronic low back pain. The Veteran attached this letter to his July 2003 claim for VA compensation (service connection), in part for low back pain, as due to exposure to herbicides. An August 2003 VA treatment report notes that the Veteran reported a "history [of] back pain since 1968 or longer." In a August 2003 statement, the Veteran noted that he had been involved in tests during Project SHAD (Shipboard Hazard and Defense) and claimed that his "medical problems are potentially the result of those tests." He attached a December 2002 letter from the Under Secretary of Veterans Affairs for Benefits which noted that he had been present during one or more of these tests. The Veteran also indicated that, "[f]ollowing discharge, [he] could not, and did not go for medical treatment any facility until 1996" and his only care provider is the VAMC in Shreveport. In a September 2003 statement, the Veteran clarified that he was claiming service connection for irritation of skin, eyes, respiratory tract, and digestive tract related to Project SHAD testing. He did not include a back disability among those claimed due to such testing. On May 2009 VA examination, the diagnosis was age related DJD of the lumbosacral spine, most significant at L4-5 level without lumbosacral radiculopathy. The examiner noted that the Veteran's claims file was reviewed; and stated that the "[V]eteran did not have any back problems during his active duty status, none is recorded in the [claims] file. He was never evaluated or treated for this condition." The examiner opined that "the [V]eteran's current back condition is age related and is complicated by his heavy weight status but is not caused by his service in the U.S. Navy." In a September 2009 addendum to the May 2009 examination report, the examiner again noted the absence of evaluation or treatment for a back condition in service, explained that "[t]here is nothing in the [claims] file to suggest that the [V]eteran was having any back problems during the years following separation from the U.S. Navy" and repeated the prior opinion. On January 2011 VA examination, the examiner repeated the opinion and explanation of rationale provided in the September 2009 addendum (that "[t]his Veteran did not have any evaluations or treatment for any back condition during his active duty status.") In an April 2012 addendum to the January 2011 VA examination, the examiner again reviewed the Veteran's claims file, and noted that the Veteran received November 1966 treatment for back strain in service. [While the treatment record is dated in December 1966, the Board finds such error immaterial.] The provider noted that there were no onging symptoms related to this incident, and that there is nothing in the claims file to suggest the Veteran was having any ongoing problems regarding the lower back during the years after separation from service, and opined that "current degenerative changes are age related and are less likely than not are [sic] caused by his service or the presentation of back condition during his service." The evidence of record demonstrates that the Veteran has a low back disability. VA treatment records note lumbar spine DDD and DJD. The Veteran's STRs document that he was seen for a complaint of low back pain in December 1966. However, the back complaints in service apparently resolved ( as he was seen on the single occasion, without follow-up, 10 months prior to his service discharge, and no pertinent abnormality was reported or found on service separation examination). Furthermore, there is no evidence that lumbar spine DJD was manifested in the first postservice year; the initial record of back complaints noted postservice is dated in February 1998, more than 30 years after discharge. Consequently, service connection for a low back disability on the basis that such became manifest in service and persisted or on a presumptive basis (for arthritis of the lumbar spine as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. To the extent that the Veteran attempts to substantiate his claim for service connection for a back disorder by his more recent accounts of continuity of symptoms since service, the Board finds such accounts not credible. They are contradicted by the more contemporaneous (and more probative) clinical data of record. Specifically, the Veteran's service separation examination is silent for any back complaints or abnormal findings. And in his initial claim for VA compensation, in June 1972, the Veteran claimed service connection only for schizophrenia. Logically, if he had a chronic back disability related to service at that time, he would have included it in his claim. The earliest postservice clinical notation of a chronic back disorder of record is in a February 1998 general medical examination report (based on a lumbosacral spine X-ray, with no further detail). The Board finds the Veteran's recollection of continuous back symptoms since service, unsupported by any identification of treatment during the interval between October 1967 and February 1998 and made in connection with a claim for compensation, to be self-serving, and not credible. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Significantly, the length of the intervening period between service and the initial postservice documentation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. The Veteran alleges that his back disorder may be causally related to his exposure to herbicides (Agent Orange) in service. The law provides that, if a veteran was exposed to an herbicide agent during service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307 are also satisfied. Lumbar spine DDD and DJD are not among the enumerated diseases. See 38 C.F.R. § 3.309(e). Consequently, this claim does not fall under the purview of 38 U.S.C.A. § 1116, and presumptive service connection based on exposure to herbicides/Agent Orange is not warranted. While a claimant who suffers from a disability that is not listed (among those for which presumptive service connection is afforded based on exposure to Agent Orange) is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation (See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994)), the Veteran has presented no competent affirmative evidence that relates his back disability to herbicides.. What remains then is the question of whether in the absence of onset of chronic back disability in service and continuity since, the Veteran's low back disability may somehow otherwise be related to his remote service (to include as related to low back complaints noted therein). Whether there is a nexus between a current insidious process such as lumbar joint and disc pathology and remote service/complaints therein absent evidence of continuity is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The only competent and probative evidence of record in the matter of a nexus between the Veteran's service and his current low back disability is the April 2012 addendum opinion of the January 2011 VA examiner. [The Board finds earlier VA opinions to be lacking in probative value because they are premised on an inaccurate factual background, i.e., that the Veteran was not seen for low back complaints in service, when in fact, he was.] In the April 2012 addendum, the examiner noted the Veteran's 1966 treatment for back pain in service and explained essentially that the complaints in service were acute and resolved without residuals (there were no onging symptoms related to this incident, and that there is nothing in the claims file to suggest the Veteran was having any ongoing problems regarding the lower back during the years and after separation from service). The examiner futher explained that "current degenerative changes are age related" and opined that they are less likely than not caused by the Veteran's service or the presentation of back condition during service. As the opinion is by a medical professional competent to provide it, explains the underlying rationale, citing to factual data, and identifies an alternate (nonservice-related) etiology for the current back disability it is probative evidence in this matter. As there is no medical evidence to the contrary the Board finds it to be persuasive. The Veteran's own opinion in this matter is not competent evidence. He is a layperson, and does not cite to supporting medical opinion or medical literature. In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the benefit-of-the-doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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