Citation Nr: 1333386 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-17 957 ) 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: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, denying the claim currently on appeal. This issue was previously remanded by the Board in January 2012 and June 2013 for further evidentiary development. In May 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO in Houston, Texas. A written transcript of this hearing has been prepared and associated with the Veteran's electronic paperless file (Veterans Benefits Management System (VBMS)). In addition to documents within VBMS, the Board has also reviewed and considered any documents associated with the Veteran's electronic file within Virtual VA. 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). FINDING OF FACT Back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Letters sent to the Veteran in January 2006, March 2006 and July 2006 addressed all notice elements listed under 3.159(b)(1) and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The March and July 2006 letters also informed the Veteran as to how disability ratings and effective dates are assigned. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained a copy of the Veteran's separation examination. Attempts were made to obtain the remainder of his treatment and personnel records, but VA was notified that these records had been destroyed in a fire. Also, the Veteran received a VA medical examination in July 2012 with July 2013 addendum, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. As the VA examination with opinion was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the opinion is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that VA has not already exhausted all reasonable efforts to obtain. The Veteran did identify private records that were not of record during his September 2011 hearing, including records related to a back surgery sometime around 1990. However, the Veteran has not identified any actual treatment providers despite VA's request for him to do so (See February 2012 notice letter). As such, any referred to private records have not been obtained. Additionally, the Board finds that there has been substantial compliance with its prior remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained the Veteran's service treatment records, notified him in writing of the evidence that VA had been unable to obtain and then VA obtained an addendum in July 2013 to the July 2012 VA examination report in which the examiner offered an opinion in light of all of the evidence of record, including the lay statements of record. The AMC later issued a Supplemental Statement of the Case (SSOC). The Board recognizes that the examiner did not explicitly name each of the lay statements noted by the Board in its previous remand. Upon reviewing the evidence of record, the examiner explained that the lay "statement" did not change his previously offered medical opinion. The Board acknowledges that the examiner said "lay statement," while multiple lay statements were to be reviewed. This would appear to be a typographical error, however, as the examiner clearly indicated in his report of July 2013 that he reviewed the available "records," including the Veteran's claims file. As all of the lay statements noted in the Board's prior remand were associated with the claims file, it would stand to reason that the examiner in fact reviewed all of the identified lay statements. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). As already noted, in May 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge 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. Here, the undersigned noted the issue on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology. The Veteran was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claim. 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. Moreover, while the hearing discussion did reveal the possible existence of private treatment records, the Veteran has not replied to VA's requests for additional information so that an attempt can be made to obtain these records. 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. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Relevant Laws and Regulations 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2013). In order to show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis The Veteran contends that he is entitled to service connection for a back disability. At the outset of this discussion, the Board notes that the Veteran's service medical and personnel records appear to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973, and have not been located (aside from a copy of his separation examination). Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because the Veteran's service medical and personnel records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The only in-service evidence pertaining to the spine is the Veteran's October 1958 separation examination. According to this report, an evaluation of the spine was normal at this time and there was no mention of a history of chronic back pain or symptomatology at this time. The record also fails to contain any post-service records relating the Veteran's current degenerative disc disease to military service. The first evidence of spine symptomatology is the Veteran's claim of December 2005 - approximately 47 years after separation from active duty. The Veteran did not indicate when his disability first began in his VA Form 21-526 and he did not provide a statement as to why he believed service connection was warranted. The record contains no post-service records of treatment or of a diagnosis related to the spine, aside from a notation of "LBP" (low back pain) in 2012. A December 2007 VA treatment note does reflect that the Veteran pulled a muscle lifting weights. However, the specific muscle involved was not noted. During his September 2011 hearing, the Veteran testified to injuring his back while lifting furniture in service. The Veteran reported that several decades after military service he underwent surgery after being told he had a fracture. When asked whether his pain had been continuous since his reported in-service injury, the Veteran reported that he could manage the pain but that it was not until he grew older that he decided to have surgery. Also, the Veteran reported that he sought treatment "not too long" after his separation from active duty from a physician in Mexico because he was more cost efficient. During his May 2010 Decision Review Officer (DRO) hearing, he also testified that he believed his current back problems stemmed from moving heavy boxes and other items. He also suggested he had to ride in the back of a truck and jump out of it. The Veteran underwent a VA examination of the spine in July 2012. This is the first medical evidence pertaining to the spine. The examiner noted that the Veteran suffered from degenerative disc disease. The Veteran reported that he had a previous back surgery some 20 years earlier. However, it was not known why surgery was performed or what type of surgery was performed. The Veteran endorsed currently having low back pain and right L4 radicular pain and weakness. Upon examination and review of the evidence of record, the examiner opined that it was less likely than not that the Veteran's back disability was incurred or caused by military service. The examiner explained that while there really was not anything in his service treatment records, his discharge examination was deemed to be normal. There were no medical records following separation from active duty until 2006 as well. The examiner found this relevant since the Veteran worked after service without indication of any back problem. While the Veteran did report back surgery some 20 years earlier, no records of this were evident. Also, it was not known what was done in this reported surgery or whether it was an on-the-job injury (OJI). An addendum to the above examination was obtained in July 2013. The examiner again opined that it was less likely than not that the Veteran's claimed back disability manifested during, or as a result of, active military service. The examiner based this opinion upon a review of all of the evidence of record, including the lay statements. After considering the totality of the evidence of record, the Board finds service connection for a back disorder is not warranted as there is no competent evidence linking any disability to an injury in service, and no evidence of arthritis within one year of service. While the absence of in-service medical evidence is of no fault of the Veteran's, his separation examination showed that his spine was evaluated as normal upon evaluation. It is not until some 47 years later that the Veteran first claimed he had a back injury related to military service. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the absence of documented complaints for some 47 years suggests that the Veteran's symptomatology has not existed since his separation from active duty. Finally, the VA examiner concluded that despite the lay statements of record in support of the Veteran's claim, it was less likely than not that his current back disability was due to military service. The examiner based this opinion on the normal separation examination and the lack of post-service treatment, despite the Veteran's ability to work for 20 years following separation. The Board also notes that the Veteran reported treatment while in Mexico following his separation from active duty. The Veteran has reported that this treatment provider has passed away and that he cannot obtain records. VA asked the Veteran in February 2012 to fill out an Authorization and Consent to Release Information form so that VA could attempt to obtain any private treatment records. However, the Veteran has failed to submit to this request. As such, any such records cannot be considered. Further, the Board recognizes that the Veteran has reported back surgery sometime in the early 1990s. The Veteran has reported that this surgery was to repair a fracture. The record contains no evidence of this actual surgery, aside from the July 2012 VA examiner finding a scar on the back. However, there was no evidence of vertebral fracture at this time. The Board does not find this information to be evidence of a chronic back disability that manifested during, or as a result of, active military service. The reported surgery would still have been some 32 or more years after separation from active duty. The record contains no competent evidence to link a reported fracture and/or impaired disc to pain sustained while lifting heavy objects more than three decades earlier. The Board acknowledges that the Veteran believes he is entitled to service connection for a back disability. Having considered his hearing testimony and statements of record, the Board does not find it to be of sufficient probative value to demonstrate that service connection is warranted for a back condition. In the instant case, the Veteran is competent to report an in-service injury, as well as pertinent symptomatology since service. However, he is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Board recognizes that the Veteran reported chronic symptomatology since his separation from active duty. However, the Board does not find this assertion to be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. Again, an evaluation of the Veteran's spine was deemed normal upon separation. It would be reasonable to assume that if the Veteran was experiencing back pain or other symptoms at that time, it would have been noted on examination. Furthermore, as noted by the VA examiner, there is no evidence of medical treatment for an extended period of time following separation from active duty, despite the fact that the Veteran worked for some 20 years. Moreover, again, the Veteran did not file a claim asserting service connection until approximately 47 years after service. Again, it would be reasonable to assume that if he had been experiencing back pain since service, he would have reported it. Therefore, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has experienced continuous symptoms since service are inconsistent with the contemporaneous evidence. Accordingly, while his contentions have been carefully considered, neither these contentions nor the clinical record establish a continuity of symptomatology such as to serve as a basis for a grant of service connection. Also, the Board has considered the June 2007 statement from the Veteran's wife. According to this statement, the Veteran had problems with his back prior to their marriage. According to the December 2005 Veteran's Form 21-526, the Veteran and his spouse married in 1961. Having considered this statement, the Board does not find it of sufficient probative value to link the Veteran's current symptoms, or his reported fracture of the early 1990s, to military service. There is no evidence to suggest that the Veteran's spouse has the requisite training or expertise to relate a current back disability to complaints made in the 1950s or 1960s. Furthermore, while the Veteran may have had complaints involving his spine in the past, the preponderance of the evidence of record demonstrates that the Veteran has not suffered from chronic symptomatology since separation to the present. As such, the statement of the Veteran's wife fails to demonstrate that he suffers from a current disability that is related to military service. Moreover, her statements are predicated on the Veteran's own history of pertinent symptomatology, which, again, has been found to not to be credible. As such, her statements must also be deemed not credible. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for back disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). [ORDER ON NEXT PAGE] ORDER The claim of entitlement to service connection for a back disorder is denied. ____________________________________________ J. N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs