Citation Nr: 1332046 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-37 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic low back disability, to include low back strain and degenerative arthritis of the lumbar spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1986 to December 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic low back disability, to include low back strain and degenerative arthritis of the lumbar spine. In a May 2012 appellate decision, the Board denied, inter alia, the Veteran's claim for VA compensation for a chronic low back disability. The Veteran filed a timely appeal of this denial to the United States Court of Appeals for Veterans Claims (Court) which, in February 2013, granted a joint motion of the appellant and the VA Secretary to vacate that part of the May 2012 Board decision that denied the appellant's claim for VA compensation for a chronic low back disability and remanded the case to the Board for further development consistent with the joint motion. Pursuant to the joint motion, the Board remanded the case in July 2013 to the RO via the Appeals Management Center (AMC) in Washington, D.C. Following a concerted attempt in good faith to develop the record as instructed by the February 2013 joint motion, the case was readjudicated and denied on the merits in a July 2013 rating decision/supplemental statement of the case. The case was thereafter returned to the Board in September 2013 and the Veteran now continues her appeal. FINDINGS OF FACT The weight of the evidence shows that the Veteran's chronic low back disability, to include lumbar strain and degenerative arthritis of the lumbar spine and any other low back disorder, is not in any manner related to her active military service. CONCLUSION OF LAW The criteria for establishing service connection for a low back disorder, diagnosed as a low back strain and degenerative arthritis of the spine, have not been met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and to assist The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a service connection claim have five elements: 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). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The Veteran's claim for service connection for a chronic low back disability was filed in September 2008. A notice letter addressing the applicability of the VCAA to the claim and of VA's obligations to the Veteran in developing the claim was dispatched in February 2009, which fully satisfied the above-described mandates. No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claim now on appeal before the Board by the agency of original jurisdiction in its rating decision of September 2009. VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The record reflects that VA has informed the claimant of its duty to assist in obtaining records and supportive evidence. In addition to the Veteran's personal statements regarding the history of onset of her claimed back disability, her service treatment records as well as his post-service private and VA medical records from 1994 to the present have been obtained for inclusion in the evidence. The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic databases for any pertinent clinical records. VA has provided the Veteran with VA examinations addressing the low back disability at issue in October 2010 and August 2011, in which definitive diagnoses and nexus opinions were obtained by the clinicians who examined the Veteran and, in the case of the August 2011 examination, had opportunity to review her pertinent clinical history contained in her claims file. The opinions specifically addressed the service connection issue on appeal. The Board finds that with the clinician's opinions of October 2010 and August 2011 are collectively deemed to be adequate for purposes of adjudicating the VA compensation claim decided herein, as these opinions, when considered in concert with each other, adequately address, contemplate, and incorporate the findings of the Veteran's pertinent clinical history and her prior treatments and examinations of record, reconciling any conflicting opinions and supporting their opinions with a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). During the pendency of the claim, the Board remanded the case to the RO/AMC in July 2013 (pursuant to a February 2013 joint motion and associated Court Order) so that an attempt could be undertaken to obtain outstanding VA medical records that the Veteran identified as being relevant to her claim. Specifically, she reported that following her separation from active naval service in December 1989, she immediately sought and received treatment for persistent low back pain at the VA Medical Center (VAMC) in Decatur, Georgia, from January 1990 to September 1993. Her claims file includes documentation dated in late July 2013 indicating that the RO/AMC conducted exhaustive efforts to locate and obtain these alleged treatment records but that these efforts were fruitless. Correspondence from the Decatur VAMC indicated that after a thorough search was performed, no medical records for the period from January 1990 to September 1993 relating to the Veteran's treatment for back pain were in its possession. A report of contact dated in July 2013 shows that the RO/AMC contacted the Veteran directly and requested that she provide them with copies of any VA medical records pertinent to the period from January 1990 to September 1993 in her possession. The Veteran informed VA that any such records that may have been in her possession were last seen in 1992 and have long since been lost or misplaced and she was unable to provide VA with the requested evidence. Therefore, the Board concludes that all reasonable efforts in good faith were undertaken by VA to develop the evidence accordingly, that the alleged records of VA treatment for the Veteran's low back pain for the period from January 1990 to September 1993 are unavailable for inclusion in the evidence, and that any further attempts to obtain them would be both futile and a waste of VA resources. Thusly, in view of the foregoing discussion, the Board finds that the RO/AMC has substantially complied with its instructions regarding the evidentiary development ordered by the Board in its prior remand of July 2013 with respect to the service connection claim decided herein. Therefore, no additional remand for corrective action is required with respect to this matter. [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999): Exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.] Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of her service connection claim decided herein. No additional assistance or notification is required with respect to this issue. The record shows that neither the Veteran nor her representative have indicated that they had any additional evidence or arguments to submit in support of the claim decided on the merits in this appellate decision. She has suffered no prejudice in this regard that would warrant a remand, and her procedural rights have not been abridged. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board will proceed with the adjudication of this appeal regarding the claim for VA compensation for a chronic low back disability. Service connection laws and regulations. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision with respect to the matters decided herein, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he/she files his/her claim for service connection or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2013). With chronic disease shown as such in service 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. This rule does not mean that any documentation of treatment for low back complaints during active duty will permit service connection for a chronic low back disability, first shown as a clear-cut clinical entity, at some later date. For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a) which, as relevant to the issues decided herein, include arthritis (to include degenerative joint disease). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Otherwise, service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 38 U.S.C.A. § 1154(a) (West 2002) 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). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In this regard, the Veteran is presently service connected only for residuals of right shoulder strain (currently rated 10 percent disabling). The Veteran does not contend, and the clinical evidence does not objectively link her claimed low back disability to this aforementioned service-connected right upper extremity and shoulder disability. Therefore, the Board will not address any further the claim for service connection for a chronic low back disability based on a theory of secondary service connection. Arthritis (to include degenerative joint and disc disease) of the lumbar spine may be presumed to have been incurred in service if it is manifest to a compensable degree within one year after the Veteran's discharge from active duty. 38 C.F.R. §§ 3.307, 3.309 (2013). Factual background and analysis. The Veteran's service treatment records reflect that she complained of low back pain in July 1988 that was increased by prolonged periods of sitting. Although there was no known mechanism of injury, she acknowledged that her symptoms may be related to severe obesity. She denied experiencing any radiating pain, numbness, tingling, or decreased muscle strength, and the treatment notes present a diagnosis of limited probable mechanical low back pain. While there are other occasions where she complained of upper back pain in service, which was ultimately observed to be part of her service-connected right shoulder disability, the July 1988 treatment note is the only complaint of low back pain in service. Significantly, no low back disorders were noted at the time of her separation physical examination in October 1989. She was discharged from active duty in December 1989. Therefore, while she did complain of back pain on one occasion during service, it was not shown on any other occasion and was not mentioned at the time she was separated from active duty. Thereafter, the post-service medical evidence does not reflect symptomatology relating to a low back disorder for nearly five years after the Veteran's service discharge. Specifically, the first medically documented complaint in the record of low back pain was not until May 1994, where the Veteran complained of low back pain after sustaining a straining injury while lifting a 60-pound bundle of paper. However, X-rays of the lumbar spine that were obtained at the time revealed normal findings and the diagnosis was limited to a lumbar strain. The Board notes at this juncture that the normal X-ray films of the Veteran's lumbar spine in May 1994 indicate that no arthritis was present over four years after she left service. Therefore, the clinical evidence does not support a finding that she had arthritis of the lumbar spine manifested to a compensable degree within one year after leaving active duty, such that she could be granted service connection for arthritis (to include degenerative joint disease and disc disease) of her lumbar spine on a presumptive basis under 38 C.F.R. §§ 3.307, 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, the Veteran may be competent in some cases to self-diagnose some disorders despite her status as a lay person and is certainly competent to report self-perceivable symptoms such as low back pain and to relate the history of its onset. However, she is not competent to actually diagnose musculoskeletal disorders of her low back as these are clinical conditions that may be diagnosed only by their unique and identifiable musculoskeletal features in a clinical setting through examination and medical imagery and thus require a determination that is "medical in nature," which can only be provided by a trained clinician (i.e., an orthopedist or radiologist). See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony regarding time of onset of self-perceivable low back symptomatology may provide sufficient support for a claim of service connection if it is deemed to be 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, as will be discussed below, the Board finds that the Veteran's reported history of continued low back 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). With regard to the Veteran's low back disorder claim, in addition to the fact that there is no clinical evidence of a low back disorder between 1989 and 1994, she also did not attribute this disorder to active duty when she eventually first sought treatment in May 1994. In fact, when she did first seek treatment for low back pain in 1994, she did so following a non-service-related straining injury after lifting a heavy ream of paper. It is also noteworthy that the post-service medical records reflect that there may have been a supervening traumatic injury to her lower back as she was involved in a motor vehicle accident in 1997, which further exacerbated her low back symptomatology. In view of the above factors, the Board concludes that the Veteran's recollections as to symptoms experienced in the distant past, made in connection with her present claim for benefits, are less probative as they are contradicted by the documented clinical evidence. Therefore, continuity of low back symptomatology with active duty has not here been established, either through the objective medical evidence or through her personal statements. Next, service connection may 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 objectively attribute the Veteran's low back disorder to active duty, despite her contentions to the contrary. Towards that end, the Board notes that the report of a VA examination conducted in October 2010 noted the Veteran's single complaint of low back pain in service in 1988 and determined that her claimed low back disorder was less likely than not related to service as current clinical findings in October 2010 indicated no evident low back pathology on X-ray or physical examination. As the absence of clinical findings supporting the presence of low back disorder in late 2010 seemed in contradiction with the other prior medical evidence of record, a second VA examination was conducted in August 2011 to specifically to address the low back claim on appeal. The Board places significant probative value on the report of this August 2011 orthopedic examination. First, during the August 2011 examination, the examining clinician noted that the Veteran had worked in a warehouse for six years after leaving military service and then worked other jobs up until May 2011. She had no history of flare-ups or incapacitating episodes of low back symptoms over the past 12 months. Upon examination, the Veteran was able to walk without a limp and was not in acute pain. There was no evidence of muscle spasm or inflammation, although there was some low back tenderness. She also exhibited reduced range of motion on testing. X-rays from March 2010 revealed mild degenerative changes with some small osteophytes at the L4 - L5 levels but with well-maintained intervertebral disc spaces. The X-ray indications of degenerative changes notwithstanding, the VA examiner noted that the Veteran's spine was "remarkably well preserved" for a person of the Veteran's age and obese body type. The examiner also opined that it was less likely than not that her back disorder was related to active duty service. In providing this opinion, the examiner reflected that there was only one instance of low back pain during service, and she denied low back symptoms at her dental health questionnaire and separation physical examination. There was also no evidence of a low back disorder within a year or two after discharge from active duty. To the contrary, the examiner noted, it was not unexpected that a person with the Veteran's body type would have back pain on an on-and-off basis regardless of other circumstances. The Board finds that the August 2011 examination to be adequate for evaluation purposes. Specifically, the examining clinician reviewed the Veteran's claims file, interviewed the Veteran, and conducted a thorough examination. Moreover, there is no indication that the VA examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's nexus opinion presented in the August 2011 examination report to be of significantly high probative value. The claim for VA compensation for chronic low back disability, to include low back strain and degenerative arthritis of the lumbar spine, is therefore denied. Because the evidence in this case is not approximately balanced with respect to the merits of this specific claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To the extent that the Veteran attempts to relate her claimed low back disability to her period of military service based on her own personal knowledge of medicine and her familiarity with her individual medical history, the Board first notes that she is not shown in the record to be a trained medical clinician. Neither her military records nor her post-service records indicate that she possesses any formal medical training. Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific questions in this case regarding the clinical existence and the nature and medical etiology of her chronic low back disorder fall outside the realm of common knowledge of a lay person, the Veteran lacks the competence to present a valid medical diagnosis and provide a probative medical opinion linking this claimed disability to her period of military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are not competent to diagnose internal medical conditions, such as a chronic musculoskeletal disorder of the lumbar spine, which may be presented only by a trained physician or medical specialist in orthopedic medicine.) Her statements and assertions in this regard, absent any supportive objective medical evidence, are thusly not entitled to any probative weight. ORDER Service connection for a chronic low back disability, to include low back strain and degenerative arthritis of the lumbar spine, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs