Citation Nr: 1329490	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  07-14 842	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to service connection for a low back disorder, 
characterized by a low back strain, degenerative disc 
disease of the lumbar spine and herniation of the L5-S1 
disc.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel




INTRODUCTION

The Veteran served on active duty from September 1969 to 
September 1971 and from May 1972 to July 1975.  

This matter is on appeal from an August 2006 rating decision 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Nashville, Tennessee.   

This appeal was remanded by the Board in July 2010 and March 
2013 for further development and is now ready for 
disposition.


FINDING OF FACT

A chronic low back disorder was not shown in service or for 
many years thereafter, and is unrelated to active duty 
service.


CONCLUSION OF LAW

A low back disorder, characterized by a low back strain, 
degenerative disc disease of the lumbar spine and herniation 
of the L5-S1 disc, was not incurred in or aggravated by 
service, was not manifest to a compensable degree within a 
year of leaving service, and is not related to service.  38 
U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2013); 
38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty 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. 
2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant and his 
representative, if any, prior to the initial unfavorable 
decision on a claim by the agency of original jurisdiction 
(AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These 
notice requirements apply to all five elements of a service-
connection claim (Veteran status, existence of a disability, 
a connection between the Veteran's service and the 
disability, degree of disability, and effective date of the 
disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  
Information that a disability rating and an effective date 
for the award of benefits will be assigned if service 
connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged 
prejudice with respect to notice, as is required, and none 
is found by the Board.  See Shinseki v. Sanders, 556 U.S. 
396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); 
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap 
v. Nicholson, 21 Vet. App. 112 (2007).  Indeed, the VCAA 
duty to notify was satisfied by way of a letter sent to the 
Veteran in May 2006 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.  It also provided 
the Veteran with notice of what type of information and 
evidence was needed to establish a disability rating, as 
well as notice of the type of evidence necessary to 
establish an effective date. Therefore, adequate notice was 
provided to the Veteran prior to the transfer and 
certification of his case to the Board and complied with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b).  

Next, VA has a duty to assist a veteran in the development 
of the claim.  This duty includes assisting him or her 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 (2013). 

After a careful review of the file, the Board finds that all 
necessary development has been accomplished, and therefore 
appellate review may proceed without prejudice to the 
Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  
First, the RO has obtained the Veteran's service treatment 
records and VA outpatient treatment records.  Further, the 
Veteran submitted his own statements in support of his 
claim.  

A VA examination with respect to the issue on appeal was 
also obtained in August 2010, and an addendum opinion was 
obtained by a separate examiner in July 2013.    38 C.F.R. 
§ 3.159(c) (4).  To that end, when VA undertakes to provide 
a VA examination, it must ensure that the examination is 
adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
As noted below, the Board finds that the VA examination and 
opinion obtained in this case are collectively adequate, as 
they are predicated on a full understanding of the Veteran's 
medical history and provide a sufficient evidentiary basis 
for the claim to be adjudicated.  Accordingly, the Board 
finds that VA's duty to assist with respect to obtaining a 
VA examination or opinion with respect to the issue on 
appeal has been met.  38 C.F.R. § 3.159(c) (4).  

Finally, it is noted that this appeal was remanded by the 
Board in July 2010 and again in March 2013 in for further 
development.  Specifically, in the July 2010 Remand, the 
Board instructed the RO to afford the Veteran another 
opportunity to submit clinical evidence of a low back 
disorder, and specifically attempt to acquire any VA 
treatment records that have been generated by the VA Medical 
Center (VAMC) in Cincinnati, Ohio, since 1988.  The Remand 
also instructed the RO to afford the Veteran a VA 
examination.  The second Remand in March 2013 instructed the 
RO to inform the Veteran that the VA treatment records from 
1988 were unavailable, offer him the opportunity to submit 
additional statements, and obtain a new VA opinion.  

The Board is now satisfied there was substantial compliance 
with these Remands.  See Stegall v. West, 11 Vet. App. 268 
(1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  
Specifically, the Veteran was provided a VA examination in 
August 2010 and a VA opinion was obtained in July 2013, both 
of which the Board finds adequate for adjudication purposes.  
The RO also received word from the Cincinnati VAMC in 
November 2010 that it was not in possession of records since 
1988.  

After the required development was completed, this issue was 
readjudicated and the Veteran was sent a supplemental 
statement of the case in July 2013.  Accordingly, the Board 
finds that the Remand directives were substantially complied 
with and, thus, there is no Stegall violation in this case.  
Hence, no further notice or assistance is required to 
fulfill VA's duty to assist in the development of the claim. 
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 
1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 
143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 
183 (2002).

Service Connection

In this case, the Veteran is seeking service connection for 
a low back disorder which, according to his VA examination 
in August 2010, he asserts is related to an injury he 
experienced during his second period of active duty in 1972.  

Under the relevant laws and regulations, service connection 
may be granted for a disability resulting from disease or 
injury incurred in or aggravated by active service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence 
must show:  (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, 1166 -67 (Fed. 
Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, the second and third elements of Shedden and 
Caluza may be established through a demonstration of 
continuity of symptomatology for certain specific chronic 
disorders.  38 C.F.R. § 3.303(b); see also Barr v. 
Nicholson, 21 Vet. App. 303 (2007).  Continuity of 
symptomatology may be established if a claimant can 
demonstrate (1) that a condition was "noted" during service; 
(2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain 
circumstances, lay evidence of a nexus between the present 
disability and the post-service symptomatology.  Savage v. 
Gober, 10 Vet. App. 488, 495-96 (1997).  

However, the United States Court of Appeals for the Federal 
Circuit has recently held that service-connection may be 
established under 38 C.F.R. § 3.303(b) only for disorders 
considered to be "chronic" under 38 C.F.R. § 3.309(a).  As 
is relevant here, degenerative arthritis is considered a 
chronic disease under 38 C.F.R. § 3.309(a), and may be 
service connected under 38 C.F.R. § 3.303(b).  See Walker v. 
Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, 
even if the injury were not considered "chronic" in nature, 
evidence of continuous symptoms since active duty is still a 
factor for consideration as to whether a causal relationship 
exists between an in-service injury or incident and the 
current disorder as is contemplated under 38 C.F.R. § 
3.303(a).  

Service connection will also be presumed for certain chronic 
diseases, including degenerative arthritis, if manifest to a 
compensable degree within one year after discharge from 
service. See 38 C.F.R. §§ 3.307, 3.309 (2013). 

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due 
consideration" to "all pertinent medical and lay evidence" 
in evaluating a claim for disability or death benefits.  
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  
Specifically, "[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."  
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. 
Cir. 2006). 

As an initial matter, the service treatment records that are 
available do not reflect complaints of, treatment for, or a 
diagnosis related to a low back disorder during the 
Veteran's first period of active duty service from 1969 to 
1971.  Moreover, the Veteran's separation physical 
examination in July 1971 fails to document any complaints of 
or observed symptoms related a low back disorder.  
Therefore, there is no indication of a law back disorder 
during this period of service.  Indeed, he has not asserted 
any back injuries during this period of service.  

As for his second period of active duty from 1972 to 1975, 
the service treatment records indicate that the Veteran was 
evaluated in April 1975 for complaints of low back pain, 
which he stated had been intermittent since 1972.  A 
physical examination indicated no apparent neurological 
pathology, and the resulting diagnosis was limited to a 
lumbar strain.  While he stated that he had been seen 
"several times before" for this disorder, this is the only 
occasion where it was mentioned in his service treatment 
records.  Moreover, his separation physical examination in 
June 1975 did not indicate any low back or lumbar spine 
disorders, which raises the possibility that his prior 
complaints were not persistent in nature.  

In fact, the post-service evidence does not reflect symptoms 
related to a low back disorder for many years after the 
Veteran left active duty service.  Specifically the first 
indication in the post-service treatment records was not 
until a VA outpatient evaluation in July 1991, where he 
complained of joint pain in the low back that radiated into 
the left lower extremity.  X-rays taken at that time 
suggested degenerative changes, but was otherwise 
unremarkable.  However, the Board emphasizes that this first 
indication of a low back disorder is approximately 16 years 
after he left active duty.  As such, a continuity of 
symptoms is not shown based on the clinical evidence.  

Additionally, the Board notes that a chronic disorder was 
not shown to a compensable level within a year of leaving 
active duty.  Significantly, while the Veteran complained of 
back symptomatology in service, the diagnosis was limited to 
a strain which, unlike arthritic disorders, is not a chronic 
disorder under 38 C.F.R. § 3.309.  Therefore, service 
connection is not warranted on a presumptive basis under 
38 C.F.R. §§ 3.307 and 3.309.   

In addition to the documented post-service treatment 
records, the evidence includes the Veteran's statements 
asserting continuity of symptoms. The Board is required to 
assess the credibility and probative weight of all relevant 
evidence, including the credibility of the Veteran's 
statements. McClain v. Nicholson, 21 Vet. App. 319, 325 
(2007).  In doing so, the Board may consider factors such as 
facial plausibility, bias, self interest, and consistency 
with other evidence of record. Caluza v. Brown, 7 Vet. App. 
at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 
(Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 
(Fed. Cir. 2000).

Competency of evidence differs from weight and credibility. 
The former is a legal concept determining whether testimony 
may be heard and considered by the trier of fact, while the 
latter is a factual determination going to the probative 
value of the evidence to be made after the evidence has been 
admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); 
Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although 
interest may affect the credibility of testimony, it does 
not affect competency to testify").

In this regard, it is true that the Veteran is competent in 
some cases to self-diagnose some disorders despite his 
status as a lay person.  However, he is not competent 
diagnose lumbar spine disorders, as they may not be 
diagnosed by their unique and readily identifiable features, 
and thus requires a determination that is "medical in 
nature." See Jandreau, 492 F.3d at 1377, n.4.  Nevertheless, 
the Veteran's lay testimony is competent to establish the 
presence of observable symptomatology and may provide 
sufficient support for a claim of service connection, if 
credible, regardless of the lack of contemporaneous medical 
evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 
(2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 
2006).

However, the Board determines that the Veteran's reported 
history of continued symptomatology since active service, 
while competent, is nonetheless not credible. In making this 
determination, the Board may consider internal consistency, 
facial plausibility, and consistency with other evidence 
submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. 
App. 498 (1995). The Board is not required to accept an 
appellant's uncorroborated account of his active service 
experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991).  

First, there is an indication that the Veteran's symptoms 
have not necessarily been "continuous."  In fact, when he 
was evaluated in July 2008, he stated that his low back pain 
had been present for only the past six months.  Moreover, 
while not dispositive per se, the Board also cannot ignore 
the significance of the fact that the Veteran did not file 
his claim for service connection for this issue for 
approximately 21 years after he left active duty. Shaw v. 
Principi, 3 Vet. App. 365 (1992) (a veteran's delay in 
asserting a claim can constitute negative evidence that 
weighs against the claim). Therefore, continuity is not 
established based on the clinical evidence of record or the 
Veteran's statements.  

Next, service connection may also be granted when the 
evidence establishes a medical nexus between active duty 
service and current complaints.  In this case, the Board 
finds that the weight of the competent evidence does not 
attribute the Veteran's claimed disorders to active duty, 
despite his contentions to the contrary.  

Specifically the Board places significant value on the 
observations and opinions provided by VA examiners who 
evaluated the Veteran's symptoms in August 2010 and July 
2013.  In the August 2010 examination, the Veteran stated 
that he has experienced low back pain since 1972.  Since 
that time, he asserted that he has experienced pain on a 
fairly consistent basis.  A review of the post-service 
treatment records was remarkable for a diagnosis of a 
herniated L5-S1 disc and subsequent laminectomy in August 
2008.  

A physical examination on that occasion revealed a normal 
posture with no lordosis, scoliosis or other misalignment.  
The muscles in the low back area were tender, but only a 
slightly limited range of motion was observed.  When the 
examination was completed, the examiner determined that she 
was unable to render an opinion without resorting to 
speculation.  In so concluding, the examiner noted that the 
Veteran could not remember the nature of his in-service 
injury. 

The Board notes that the opinion provided by this VA 
examiner is inadequate, because the claims file was not 
reviewed.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
However, this defect was cured when the claims file was sent 
to a new VA examiner in July 2013.  On that occasion, after 
a review of the claims file, which included the examination 
findings in August 2010, the examiner opined that it was 
less likely than not that the Veteran's low back disorder 
was related to his complaints in service.  In providing this 
opinion, the examiner noted that the Veteran had a normal 
low back examination while on active duty in June 1975, and 
after his most recent in-service complaints.  The Board may 
also infer from the examiner's comments that the Veteran's 
in-service complaints were not representative of an actual 
chronic disorder.   

The Board finds that the examinations are collectively 
adequate for evaluation purposes.  Specifically, the first 
examiner interviewed the Veteran and conducted a physical 
examination, and the second examiner was able to read the 
first examination report and, after a review of the claims 
file, was able to render an opinion that was sufficiently 
supported by the evidence of record.  Notably, there is no 
indication that the VA examiner in July 2013 was not fully 
aware of the Veteran's past medical history or that she 
misstated any relevant fact.

In arriving at this conclusion, the Board has also 
considered the statements made by the Veteran relating his 
hearing loss to his active service. The Federal Circuit has 
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."  
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) 
(quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. 
Cir. 2007)).

In this case, however, the Veteran is not competent to 
provide testimony regarding the etiology of low back 
disorders.  See Jandreau, 492 F.3d at 1377, n.4. Because 
musculoskeletal disorders such as these are not diagnosed by 
unique and readily identifiable features, they do not 
involve a simple identification that a layperson is 
competent to make. Therefore, the unsubstantiated statements 
regarding the claimed etiology of the Veteran's low back 
disorder are found to lack competency.

In light of the above discussion, the Board concludes that 
the preponderance of the evidence is against the claim for 
service connection and there is no doubt to be otherwise 
resolved.  As such, the appeal is denied.


ORDER

Service connection for a low back disorder, characterized by 
a low back strain, degenerative disc disease of the lumbar 
spine and herniation of the L5-S1 disc, is denied.  




____________________________________________
JOHNATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs