Citation Nr: 1331333 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-01 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been presented to reopen a claim for service connection for a back disability. The Veteran appealed. The Veteran testified before the undersigned at a February 2009 hearing at the RO. A transcript has been associated with the file. During the hearing, the Veteran, through his representative, raised the issue of whether there was clear and unmistakable error (CUE) in a December 1985 decision that had denied service connection for low back disability. In April 2009, the Board reopened the claim for service connection, and remanded it for additional development. The RO was also instructed to adjudicate the CUE claim. In August 2011, the RO determined that there was no CUE in the December 1985 decision that had denied service connection for a back disability. The Veteran did not appeal that decision. FINDING OF FACT A chronic disability of the low back was not shown in service, arthritis of the lumbar spine was not diagnosed within one year of service discharge, and the preponderant of the evidence is against the finding that the Veteran's diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine is related to his active service. CONCLUSION OF LAW Degenerative joint disease of the lumbar spine was not incurred in, aggravated by, or presumptively related to active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he has a back disability due to his service. Specifically, he asserts that he fell from one deck to another in 1975 while performing repairs aboard a submarine, and that he spent between 11/2 and 2 months in his quarters. See e.g., Veteran's statements (VA Form 21-4138s), dated in August 1985, September 2002, and June 2003; VA Form 21-4142, dated in May 2003. The Veteran has also claimed that he sustained a second inservice back injury in October 1976, while aboard the U.S.S. Ponchatoula, for which he was put on bed rest for 14 days, and received medication for between 25 days and two months. See e.g., Veteran's statement (VA Form 21-4142), dated in May 2003; VA Form 21-4138s, dated in June 2003 and July 2007. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Arthritis is one of the diseases that is listed under 38 C.F.R. § 3.309(a) and enjoys the one year presumption of service connection. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service treatment records dated from February 1974 through April 1976 are absent any findings of complaints, treatment, or diagnosis of back pain or injury. The records do document multiple evaluations for foot pain, flu syndrome, and an upper respiratory infections. The Veteran was seen for bronchitis in early April 1976. That same month, he was evaluated after he coughed and pulled a muscle in the thoracic back area, spraining his back. He described the sudden onset pain in the center of his back while having a heavy cough. The examination found tenderness of the paraspinous muscle group of the lower thoracic spine. The muscle spasm was described as less prominent the next day. Subsequent records, to include those from the U.S.S. Ponchatoula in October 1976 (for an ankle sprain), make no reference to any other complaints related to the low back. The Veteran's separation examination report, dated in September 1977, did not show any complaints or diagnoses related to his spine. In the associated "report of medical history," the Veteran indicated that he did not have a history of recurrent back pain. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1978 and 2013, and reports from the Social Security Administration (SSA). This evidence shows that between April and May of 1978, the Veteran was noted to have injured his back at his place of employment while lifting a piece of equipment up to a cement pump. The reports described acute lumbosacral strain, sciatica (left), probable HNP L4-L5, and spondylolysis L5-S1. An April 1978 X-ray report for the lumbar spine contained an impression noting no acute fractures or dislocations throughout the lumbar spine, and spondylosis on the right at L-5, without spondylolisthesis. A notation, dated in July 1978, indicated that the accident had resulted in disability from work, that the Veteran had been rechecked on May 23, 1978, at which time he had no complaints and that his ROM (range of motion) was "ok," that he had been directed to return without a response, and that he had stopped treatment without order on May 23, 1978. When he was examined by VA in October 1985, the Veteran reported that he had constant low back pain, which stemmed from having fallen off of a ladder during service in 1975. He said that he pulled muscles and was treated conservatively. He also reported that he had more recently been advised that he had a fracture visible on X-rays, and "although he was not X-rayed at the time of the injury, the fracture when picked up was noted to be old." The relevant diagnosis was low back pain. An associated X-ray report for the lumbosacral spine noted probable mild narrowing of the L5-S1 disc space with some marginal hypertrophic lipping, possible slight narrowing at L4-5 without associated hypertrophic changes, and no evidence of spondylolysis or spondylolisthesis, and minor degenerative changes consisting of some minimal hypertrophic lipping at the anterior disc space margin at T7-8 and slightly irregular vertebral end plates in the lower thoracic region. The interpreting physician noted, "Generally, I see no convincing evidence of trauma." The Veteran has been noted to have a history of a back injury while at his place of employment, in December 1985, while lifting a heavy pipe with a co-worker, and to have received a second back injury three days later, after he slipped and fell while descending a ramp. See decision, Office of Workers' Compensation Programs (OWCP), dated in June 2004. The Veteran had reported a ten-year history of low back pain at the time of his 1985 injury. Id. He also reported that he had sustained several back injuries during service, to include a fall off of a ladder in 1975 (the other inservice back injuries were not further described). Id. In its decision, the OWCP noted that the Veteran was thought to have had severe lumbosacral back pain prior to his December 1985 injury. Nevertheless, the OWCP granted the Veteran's claim against his employer. Reports from the Group Health Cooperative, dated between 1986 and 1987, include a CT (computerized tomography) scan of the lumbar spine, dated in January 1986, that shows that the Veteran had a minor disc annulus bulging at L5-S1, and prominent soft tissue density at L4-L5 disc interspace consistent with a central disc herniation at L4-L5. In February 1986, the Veteran underwent a bilateral L4-5 laminotomy, foramenotomy, and right L4-5 discetomy. Reports from the SSA indicate the following: the Veteran filed a disability claim in 2005, asserting that he was disabled due to a number of conditions, including a back condition. He reported an employment history as a laborer in the building trades between 1982 and 2005. The Veteran's claim was initially denied after a physician determined that he was employable. VA progress notes, dated between 2004 and 2013, show multiple treatments for complaints of back pain, to include a number of epidural blocks, with diagnoses that included lumbar radiculopathy, and chronic back pain. On VA examination in May 2011, the Veteran reported that he fell off of a ladder while aboard a submarine and landed in a sitting position, causing back pain. He said that he was not evaluated for his back pain at that time, but that he sought treatment the next day. He recalled that X-rays were taken. He reported being given medication, and being put on bedrest at home for about one month. The examiner noted that there were no service treatment reports of record to corroborate his allegations. The Veteran further reported that following separation from service, he was a pipefitter between 1977 and 1982, and, "[H]e denies any injury to his back at that time." However, the examiner noted that he had an industrial injury to his back while working at a job in 1978. The examiner also observed that the Veteran had claimed that he had several back injuries during active military service, there was no evidence of any back injury while on active duty, and that the only note was that he had problems with the muscles of his lower thoracic spine from persistent coughing when he had bronchitis. The examiner discussed evidence of the Veteran's April 1978 back injury, at which time X-rays revealed spondylosis at L-5, with an impression of acute lumbar sprain. Reference was made to the Veteran's history of sustaining a back injury in 1998, while performing building maintenance. The examiner concluded: It is my opinion as the examining board certified orthopedic surgeon that it is less likely than not (less than a 50% probability) that the Veteran's lumbar spine condition started when he was on active military service. The Veteran's back condition most likely occurred with industrial injuries of his back after military service. In an addendum, dated in August 2011, the May 2011 VA examiner stated, "It is my rationale that it is less likely than not that the Veteran's condition started in the service: no SMR (service medical record) describing injury, and no treatment records found. He had injuries to his back after military service." As an initial matter, the Board finds that the Veteran is not a credible historian. The service treatment records are silent with respect to any injury to the back/spine other than muscle spasm that occurred following a violent coughing episode. Emphasis place on the fact that there are no gaps in the service treatment records, and that records from the U.S.S. Ponchatoula are clearly on file. The six entries in 1975 (January, June, July, September, and November) are without any indication of the Veteran falling or receiving treatment for a back injury. Similarly, as noted, there are records from October 1976 but none mention the alleged back injury that necessitated 14 days of bed rest and administering of medication for between 25 days and two months. There is the September 1976 note of the Veteran injuring his ankle and the October 1976 follow-up reports relating to tendonitis. It stands to reason that an injury as severe as the ones described by the Veteran would be included with the service treatment records. The Veteran also denied having a history of recurrent back pain in his September 1977 report of medical history, and his separation examination report does not note a back condition, either currently or "by history." The absence of any findings related to the alleged injuries, in light of the completeness of the service treatment records and his clear lack of reluctance to seeking out care for other conditions, weighs heavily against the Veteran's credibility. Next, a review of the Veteran's assertions shows that he initially claimed to have sustained a back injury in 1975 after a fall while performing repairs aboard a submarine. However, in May 2003, the Veteran asserted for the first time that he sustained a second back injury in October 1976, while aboard the U.S.S. Ponchatoula. He indicated that this injury was so severe that he was put on bed rest for 14 days, and that he received medication for between 25 days and two months. Notwithstanding the absence of any findings related to that injury in the service treatment records, the Board finds it odd that he made no reference to that injury in his original claim in 1985, especially given the severe nature of the alleged injury. There is no logical basis for the Veteran to withhold claiming that injury, if it had occurred, to support a basis for his claim for service connection. Other evidence shows that the Veteran has been significantly inconsistent in his reported history includes a May 2011 VA examination report. This report shows that the Veteran made no mention of a second inservice back injury. Furthermore, although the Veteran is shown to have sustained a back injury at his job in April 1978, he denied a history of back injuries between 1977 and 1982 during his May 2011 VA examination. His lack of being forthright to the VA examiner further diminishes his credibility. Finally, the Board's attention is drawn to the healthcare records from 1978. Those records make no reference to in-service back injuries much less a preexisting history of back problems. Had the Veteran suffered the injuries and problems that he did in-service, reporting that history to his treating care providers would have been in his best interest. The failure to do so further is another factor that weighs against the integrity of the Veteran's report of having injured his back in service that remained chronic. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Given the foregoing, the Board finds the Veteran is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). His history of injuring his back, aside from the muscle spasm that coincided with a coughing attack, is not reliable. Coupled with the Veteran's questionable veracity, there is an absence of evidence to support the claim that the Veteran's current low back disability is related to his active service. The Veteran is not shown to have sustained back trauma during service. The sole evidence of back symptoms is found in an April 1976 report, which shows that he was treated after he coughed due to bronchitis, and pulled a muscle in the thoracic back area, spraining his back. The earliest post-service medical evidence of a back condition is dated in April 1978, includes that X-ray report noting no acute fractures or dislocations throughout the lumbar spine, and spondylosis on the right at L-5, without spondylolisthesis. Significantly, the physician interpreting his X-rays specifically stated, "Generally, I see no convincing evidence of trauma." Also of record are the May 2011 negative VA opinion and its addendum. That examiner reviewed file, conducted a physical examination, and interviewed the Veteran. He also provided rationale for his conclusions. There is no competent medical opinion to the contrary. The opinions are considered to be highly probative evidence against the claim. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran's assertion that his current back problems are related to his active service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has a back condition due to his service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Degenerative joint disease is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of back pain, there is no indication that the Veteran is competent to etiologically link these reported in-service symptoms to his current degenerative disc disease, which was not diagnosed until many years post-service. Indeed, notwithstanding the incredible nature of the his claim of suffering multiple traumatic injuries to his back in service, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disabilities. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence thereby does not constitute competent medical evidence and lacks probative value. There is also no evidence to show that arthritis of the back was manifest to a compensable degree within one year of the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. Further, as the Veteran's claim of experiencing chronic low back since service is not deemed credible, application of the tenets of 38 C.F.R. § 3.303(b) would be unwarranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). 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). 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. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in April 2003, October 2004, June 2007, and May 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required. The matter was then readjudicated as recently as April 2013. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. In this regard, the RO has undertaken efforts to locate additional service treatment reports from the Tripler Army Medical Center (Tripler). However, in June 2007 and August 2010, the National Personnel Records Center (NPRC) stated that no records from Tripler could be located. The RO has obtained the Veteran's VA and non-VA records, and SSA records (discussed in greater detail, infra). The Board notes that in July 2003, the Group Health Cooperative stated that it did not have any additional records for the Veteran. The Veteran has been afforded an examination, and an etiological opinion has been obtained. In April 2009, the Board remanded this claim. The Board directed that the RO should request any treatment records for back injury, complaints or diagnosis for the following dates and facilities: May and June 1975 from the Pearl Harbor Naval Base; treatment reports from the U.S.S. Ponchatoula dated in October 1976, April, May, and October of 1977; and any outstanding records from the Naval Reserve. In May and December of 2009, the Naval Health Clinic of Hawaii stated that it had no records for the Veteran. In December 2010, the RO issued a memorandum in which it determined that the Veteran's service treatment reports for the period from May to June of 1975 at Pearl Harbor Naval Base, treatment reports from the U.S.S. Ponchatoula dated in October 1976, April, May, and October of 1977, and any outstanding treatment records from the Naval Reserve, other than those currently of record, were unavailable for review. The RO stated that all procedures to obtain these records had been properly followed, that all efforts had been exhausted, and that any further attempts would be futile. See 38 C.F.R. § 3.159(d) (2012). The Board's remand further directed that an attempt be made to obtain the appellant's VA medical records for treatment concerning the appellant's back disability from July 2008 to the present, and VA progress notes, dated up to 2013, have been obtained and are associated with the Veteran's claims files. The Board directed that the RO should schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability, and that an etiological opinion be obtained. In May 2011, this was done. Concerning this examination, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report shows that the examiner reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, provided the appropriate findings, and rendered diagnoses that are consistent with the remainder of the evidence of record. In this regard, the Board has considered the Veteran's representative's argument that the May 2011 VA opinion and the associated addendum are inadequate, because the examiner "seemingly required there to be documentation of the Veteran's in-service trauma." Citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), and VBA's Adjudication Procedure Manual, M21-1 MR, Part II, Subpart iv(5)(5)(g). However, the VA examiner reviewed and summarized the Veteran's medical records, took his oral history, and determined that his back condition is due to his post-service back injuries. The Board has determined that he is not a credible historian. Thus, the Board's credibility determination, which has been made on the complete record, renders the representative's argument moot, as without more, the Veteran's assertions may not form the basis of a favorable opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006) (the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion). Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In February 2009, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2009 hearing, the undersigned identified the issue on appeal. Information was solicited regarding the claimed inservice incurrence of his back disability. The testimony indicated that the Veteran asserted that there were outstanding medical records available that would support his claim. However, as previously discussed, all efforts to obtain these records were unproductive. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a back disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs