Citation Nr: 1330724 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-22 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1973 to May 1976, with subsequent service in the Naval Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a back condition. The Board has reviewed the Veteran's physical claims file and the electronic claims folder to ensure review of the totality of the evidence. FINDING OF FACT The weight of the evidence does not support a finding that the Veteran's claimed current back condition had its onset during active duty, or is otherwise etiologically related to the Veteran's active military service. CONCLUSION OF LAW The Veteran's claimed current back disability was not incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 an August 2008 letter. 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. VA has obtained and associated service treatment records with the record. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an 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). The Board acknowledges that the Veteran has not been afforded a VA medical examination, however, under these circumstances VA is not required to provide a medical examination. VA is required to provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As will be discussed in greater detail below, the record contains no credible evidence of any injury or event in-service that may have led to the Veteran's claimed current back disorder, and no credible lay evidence or competent medical evidence otherwise suggesting an association between his current claimed disorder and service. As a result, the Board concludes that the criteria for obtaining a VA examination or opinion is not met. II. Low Back Disorder The Veteran is seeking service connection for a low back disability. He essentially contends that he has back pain that began on active duty. He further asserts that he had to regularly run under aircraft during service, or stoop or duck underneath such aircraft, and that his activity caused or contributed to the development of a back disability. Service connection will be granted if it is shown that the veteran suffers from 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). Where a chronic disease is shown to develop in service, subsequent manifestations of the same chronic disease are generally service connected. 38 C.F.R. § 3.303(b). If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). 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. Regarding requirement (1) for service connection, the record contains no medical evidence of a back disability. The Board has considered that the Veteran has provided lay evidence of current problems in that he has reported that he experiences pain in his back and decreased flexibility. Although the Veteran is competent to relate his observations of such symptomatology, he is not competent to assess a specific underlying back disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Jandreau, 492 F.3d at 1377 (Fed. Cir 2007). In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992). Furthermore, even if the existence of a current disability was conceded, the Board finds that requirements (2) and (3) for an award of service connection are also not met. As previously discussed, the Veteran's service treatment records lack any record of treatment, complaint, or diagnosis of a back injury or disability. While the Veteran is competent to testify as to symptoms regarding the condition of his back while in-service, the Board finds that these assertions are not credible. The lack of contemporaneous medical records does not by itself refute the credibility of the Veteran's assertions. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, when the lack of contemporaneous medical records is coupled with the Veterans specific denial of any recurrent back pain at his separation exam, the Board must question the credibility of the Veteran's assertions of an in-service injury. Upon separation he was afforded the opportunity to note recurrent back pain or general health issues but he specifically denied any back pain. Furthermore, the only record of treatment for a back condition that the Veteran has claimed was a visit to a chiropractor about 25 years ago. This would be around 1988, over a decade after separation from service. Given his specific denial of symptoms during service, as well as the absence of any complaints or findings of back problems during service and for many years thereafter, the Board further finds the Veteran's assertions that he experienced symptoms during service and continually thereafter are not credible. Furthermore, with respect to the Veteran's allegation of continuing symptomatology since his discharge in 1976, the Board notes that continuity of symptomatology, as previously discussed pursuant to 38 C.F.R. § 3.303(b), is only a factor when dealing with chronic diseases. As the Veteran has not been diagnosed with any "chronic disease" as listed under 38 C.F.R. § 3.309(a), including arthritis, the assertion of continuing symptomatology cannot establish service connection. Finally, as to the assertion that his current symptoms are related to the physical activities he engaged in during service, the Board notes that such a relationship involves a complex medical question beyond the competence of a lay person. Espiritu, 2 Vet. App. At 494; see also Jandreau, 492 F.3d at 1377. Here, there is no competent medical evidence suggesting that any current back disability is related to military service, to include any physical activities engaged in therein. In summary, the Board finds the lack of symptoms from in-service treatment records and the Veteran's denial of symptoms at the separation exam to be more credible than the Veteran's statements of in-service symptoms made decades later in support of a claim for benefits. For this reason, and as there is no competent lay or medical evidence otherwise suggesting an event, injury, or disease in service, or competent medical evidence establishing a current back disability otherwise related to service, the Board finds that the weight of the evidence is against a finding of service connection for the Veteran's back disorder. ORDER Service connection for a back condition is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs