Citation Nr: 1330322 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-09 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefit sought on appeal. In December 2012, the matter was remanded to satisfy an outstanding hearing request. The Veteran presented testimony before the Board in August 2013; a transcript of the hearing has been obtained. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran's low back disability is due to events in active service; degenerative disc disease (DDD) was not diagnosed within one year following the Veteran's discharge from active service in July 1984. 2. Service connection is not currently in effect for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The schedular criteria for TDIU are not met; a TDIU rating is not warranted; referral for extraschedular consideration is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in October 2008. VA has obtained service treatment records, assisted the Veteran in obtaining post-service records (VA and private outpatient treatment records and employment information), and afforded the Veteran VA examination. The Veteran presented testimony in support of his appeal in August 2013. In January 2009, the Veteran informed the RO that records of his 1985 back surgery from the Eugene Clinic were no longer available as records over 10 years old were destroyed. Any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). During the August 2013 Board hearing, the Veteran waived initial RO review of any newly submitted evidence, to include evidence contained in the Veteran's virtual record. As such, Remand for preparation of a supplemental statement of the case (SSOC) is not necessary. 38 C.F.R. § 20.1304(c). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A) Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," such as arthritis, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a "chronic disease" in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic disease" became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. For purposes of continuity of symptomatology the term "chronic disease" applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, Fed. Cir. 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues on appeal. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). 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 Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims that he is entitled to service-connection for a low back disability. Specifically, he contends that he injured his back while in Air Assault School. He asserts that he was climbing the ladder to the helicopter and the helicopter dropped causing him to land on the ground on his back. He claims that he was treated in service with injections and after service in approximately 1985 he had surgery on his low back. The Veteran maintains that he has suffered from pain and limited motion in his back, as well as difficulty walking, since his discharge from service. See VA Form 21-4138, Statement in Support of Claim, received in October 2008. On VA Form 21-4176, Report of Accidental Injury in Support of Claim for Compensation, received in January 2009, the Veteran indicated the accident occurred in June 1984 at Fort Campbell, Kentucky. He stated that during air assault training, the ship's ladder was connected to the Chinook helicopter with 100 plus people on the ladder when the helicopter experienced a rotator wash and he was thrown from the ladder injuring his back when he hit the ground. X-rays and magnetic resonance imaging (MRI) dated in 2009 reveal the presence of arthritis and degenerative disc disease (DDD). Thus, the question of whether the Veteran has a current low back disability is not in dispute. What is in dispute however, is whether such disability had its onset in service or is otherwise causally related to the Veteran's service. After review of the evidence, the Board finds service connection must be denied because the preponderance of the evidence is against such a finding. First, the Board shall discuss service incurrence. Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is warranted. Where a combination of manifestations sufficient to identify a "chronic disease" in service, and establish chronicity at the time are present, any later manifestation of the same "chronic disease" is subject to service connection unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). The Veteran's service treatment records contain complaints of low back pain of one week duration on November 28, 1983. He indicated he treated himself without results. There were tense paravertebral muscles bilaterally. He was prescribed medication and told to use ice and heat. The next day, the Veteran followed up for paravertebral spasm. The Veteran was told not to lift greater than 25 pounds for 72 hours. He was also told not to stoop or bend. The Veteran was discharged with no limitations and returned to full active duty. In February 1984, the Veteran again complained of low back pain of three days duration. Spasm was again noted. There were no further complaints in service and no mention was made on any occasion of the claimed ladder/helicopter incident. The mere fact that the Veteran complained of low back pain in service is not enough to establish service connection; a chronic low back disability, to include arthritis, was not established during service. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. While the Veteran is competent to report his lay observations, to include back pain, the preponderance of the evidence is against a finding of continuous back symptoms since service. The Veteran when filing his claim originally indicated that he had continuous back pain since his discharge from service. However, this statement is contradicted by other statements, including his hearing testimony wherein he maintained that he was "good to go for 25 years" following post-service surgery, which allowed him to perform work as a truck driver and a construction worker. See August 2013 hearing transcript at 3. The Veteran has also been inconsistent in reporting whether he has experienced other, intervening back injuries following separation from service. He testified that he did not have any type of post-military back injury (see August 2013 hearing transcript at 4); however, the Veteran informed the March 2013 VA examiner that "wrestling" with his wife on the couch precipitated the back pain which led to surgery for a herniated disc in 1988, several years after service separation. The examiner concluded that "Veteran's history and available records in the C file are consistent with the herniated disc condition as being a post service injury." In light of these inconsistent statements and the VA examiner's opinion, the Board finds the Veteran's statements regarding continuity of low back symptomatology since service to not be credible. While the Veteran claims that he had surgery on his back in 1985, there are no surgical reports available. The Board notes that a November 2012 magnetic resonance imaging (MRI) contains evidence of prior surgery on the right L5-S1; however, as will be explained in greater detail below, it was following post-service injury. The first objective complaints of low back pain are dated in 1988, four years after the Veteran's discharge from service. The Veteran was employed as a laborer at the time. Computerized tomography (CT) revealed a herniated and extruded disc at L5-S1 on the right. The Board notes there was no indication as to a precipitating event or injury; however, the Veteran informed the March 2013 VA examiner that he had been wrestling with his wife on the couch on that day, when the pain flared. He stated he went to the emergency room and CT scan showed a herniated disc requiring surgery. The next objective complaints of back pain are dated in 2009. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As noted above, x-rays and MRI dated in 2009 revealed arthritis and DDD, which is clearly outside the one-year presumptive period for arthritis. 38 C.F.R. § 3.307, 3.309. While competent evidence indicates that the Veteran has a current diagnosis of arthritis and DDD of the lumbar spine, no medical evidence links the current disorder to service. In fact, the evidence points to a post-service injury. Moreover, the March 2013 VA examiner opined a low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event. The examiner reasoned that the service treatment records described a muscle strain injury that did not result in any follow-up medical care. The examiner further supported his conclusion by noting that the service treatment records did not describe a compression fracture, DDD, or herniation of a lumbar disc in service. The examiner found the low back treatment in service to be consistent with a short-term and self-limited condition. The examiner also indicated there were no records found in the claims file or provided by the Veteran for any treatment of a back condition between discharge and the back injury in 1988. The examiner concluded that the Veteran's history and available records were consistent with a herniated disc condition as being a post-service injury. Other than the Veteran's statements that his low back disability was incurred in service, there is no competent or probative evidence to support his claim. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to a low back disability, including arthritis and DDD, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his low back disability because he is not qualified to offer such opinions. Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either. In sum, the preponderance of the evidence is against a finding that a chronic low back disability was diagnosed during service or for many years thereafter. The preponderance of the evidence is also against a finding that there is a link between a low back disability and active service. Thus, the Board finds service connection is not warranted on a direct or presumptive basis or under the theory of continuity of symptomatology for the claimed low back disability. The evidence is not in relative equipoise. As the preponderance of the evidence is against the claim, the appeal must be denied. 38 U.S.C.A § 5107(b). B) TDIU TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340 , 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) , an extra-schedular rating is for consideration where the Veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341 , 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. 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 appellant 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 Board notes initially that the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16(a) are not met. The Veteran does not have any service-connected disabilities. Second, regarding potential entitlement to TDIU under 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran contends that his low back disability prevents him from seeking, gaining, and maintaining meaningful, gainful employment. The March 2013 VA examiner found the Veteran's back disability did preclude physical work, but permitted him to do some sedentary work within the limitations specified (unable to sit more than 30 minutes without stretching). However, the Board found that service-connection was not warranted for a low back disability in the instant decision. The Veteran does not have a service-connected disability that alone precludes substantially gainful employment; therefore referral for extraschedular consideration is also not warranted. The preponderance of the evidence is against this claim. Therefore, there is no reasonable doubt to be resolved. The appeal in the matter must be denied. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to TDIU is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs