Citation Nr: 1333666 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-01 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for gastrointestinal disability. 2. Entitlement to service connection for low back disability, claimed as chronic lower back pain due to multilevel spondylosis, multiple disc herniation, status post multilevel laminectomy/discectomy and spondylolisthesis. REPRESENTATION The Veteran is represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to August 1969. These matters come before the Board of Veterans' Appeals Board on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Reno Nevada (RO) The above-captioned claims were previously before the Board in September 2011, November 2012, and May 2013. On each occasion, the Board remanded the Veteran s claims for additional development. After the RO issued a June 2013 supplemental statement of the case, the claims were returned to the Board. In May 2013, the Board remanded the issue of entitlement to service connection for residuals of a head injury and the issue of entitlement to service connection for a headache disability, both to include as secondary to a service-connected disability. In so doing, the Board determined that these issues were inextricably intertwined with a reasonably raised, but as yet developed or adjudicated claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Based upon a review of the record, the Board was unable to locate any development or adjudication of the remanded issues or of the claim of entitlement to service connection for PTSD. Thus, the issue of entitlement to service connection for residuals of a head injury and the issue of entitlement to service connection for a headache disability, both to include as secondary to a service-connected disability, have not been returned for further appellate consideration and, consequently, will not be addressed here. Those issues are still pending at the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The competent evidence of record does not relate any current gastrointestinal disability to the Veteran's active duty. 2. The competent evidence of record does not relate any current low back disability to the Veteran's active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for gastrointestinal disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for low back disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans in substantiating claims 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, 3.326(a) (2013). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). 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 the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also 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. Prior to the initial adjudication of the Veteran's claim, the RO sent the Veteran a February 2007 letter advising him of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman, 19 Vet. App. at 486. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is required to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Additionally, the duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service treatment records, his identified VA treatment records, and the documentation associated with his application for benefits from the Social Security Administration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There was no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally, the Veteran was provided two VA examinations in November 2011. In May 2013, the Board determined that these examinations were not adequate and, thus, a remand was required in order to obtain a supplemental opinion. In June 2013, adequate opinions were obtained. When viewing the November 2011 VA examination and June 2013 supplemental together, the examiners thoroughly reviewed the Veteran's relevant treatment records, considered the Veteran's statements, and administered clinical examinations, all of which allowed for a fully-informed evaluation of the claimed disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the above, the Board finds that the Veteran has been provided an adequate examination. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In May 2013, the Board remanded the Veteran's claims of entitlement to service connection for gastrointestinal disability and low back disability, both for additional development. Specifically, the Board requested the RO to obtain supplemental opinions from the VA examiner that conducted the November 2011 VA examinations or an appropriate substitute. In June 2013, a new VA examiner provided supplemental opinions that addressed the salient issues presented by the Veteran's claims. The RO then readjudicated that Veteran's claims, confirming and continuing the denial thereof. After the RO issued a June 2013 supplemental statement of the case and provided the Veteran with an opportunity to respond, the Veteran's claims were remitted to the Board for further appellate review. Based on the above, the Board finds that the RO substantially complied with the May 2013 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will address the merits of the Veteran's claims herein. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). A. Gastrointestinal Disability In support of his claim, the Veteran asserted that he currently experiences gastrointestinal disability incurred in or due to his active duty. The evidence of record included current diagnoses of gastrointestinal disability, including several diagnoses of gastritis. Consequently, the Board will focus its analysis on the other aspects of service connection. A service treatment report, dated in July 1968, demonstrated that the Veteran complained of headache, stomach trouble, and diarrhea, with a temperature of 98 degrees. The findings from a physical examination were within normal limits. The Veteran was provided bismuth subsalicylate (Kaopectate). On August 9, 1968, the Veteran complained of cold chills, hot flashes, and a sore throat, with a history of 3 days. His temperature was determined to be 101.6 degrees. After a physical examination, the impression was tonsillitis. The August 1969 service discharge examination was normal and showed no indication of gastrointestinal symptoms or disability. In March 1970, the Veteran submitted a claim of entitlement to service connection for a stomach condition. The RO determined that the evidence submitted or obtained in support of this claim did not establish the presence of the claimed disability. Consequently, the Veteran's claim was denied in an April 1970 rating decision. The claim was reopened by the Board in September 2011 and remanded at that time. In a July 2008 statement in support of his claim, the Veteran said that he was treated for a "stomach problem" during his active duty, effectively claiming that current gastrointestinal disability was etiologically related to the inservice symptoms that required treatment. In November 2011, the Veteran underwent two separate VA examinations, one for stomach and duodenal disabilities, and the other for intestinal disabilities. The diagnoses were chronic diarrhea and reflux esophagitis. After reviewing the Veteran's claims file and assertions, and administering a clinical evaluation, the examiner opined that the present disabilities were less likely that not incurred in or caused by the Veteran's active duty. In support of this opinion, the examiner provided the following rationale: One episode of diarrhea during service which was treated and separation examination showed no residuals[.] The gastroenteritis is not a long standing condition and can not last for many years. The diarrhea episode on 2008 has no Nexus to the service condition. In March 2010, the Veteran underwent an esophagogastroduodenoscopy that resulted in a diagnosis of gastritis. In a December 2011 addendum, a doctor reiterated the gastritis diagnosis, and opined that the Veteran's gastritis was not related to his inservice complaints in 1968. In June 2013, the RO obtained a supplemental opinion from a VA examination. Following a review of the relevant evidence of record, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner provided the following rationale: The Veteran was seen in military service on [July 28, 1968] with a complaint of stomach trouble and diarrhea, physical exam[ination] was reported to be within normal limits and he was given a prescription for Kaopectate. He also was seen 12 days later on [August 9, 1968] with a complaint of fever, chills, and diarrhea for 3 days. His temperature on this visit was elevated at 101.6 degrees Fahrenheit. There are no other visits in the service medical record regarding a gastrointestinal condition. His separation physical exam dated [August 11, 1969] reported a normal abdominal exam[ination]. The above visits that occurred within 12 days of each other in service indicate an acute, transient condition of gastroenteritis (infection) which is self-limiting. Gastroenteritis is not a chronic condition. The Oct[ober] 26, 2009 note regarding diagnosis of gastritis was written by a Nurse, in the note she states[,] 'Patient previously diagnosed with gastritis.' This was later confirmed by an upper endoscopy done [March 9, 2010]...Gastritis is often a recurrent or chronic condition, it is not generally associated with a fever as the Veteran had while in service. It is less likely as not that the Veteran's current diagnosis of gastritis is related to his gastroenteritis episodes in service because as indicated above, gastroenteritis is an acute and transient condition associated with infection which would not lead to recurrent or chronic gastritis. The Veteran's other currently diagnosed conditions of reflux esophagitis and chronic diarrhea is less likely as not related to the in-service condition of gastroenteritis because of the same reason identified above that the Veteran's gastroenteritis is acute and transient condition associated with infection which does not lead to reflux esophagitis or chronic diarrhea. Preliminarily, the Board notes that service connection based on a continuity of symptomatology is not available for the Veteran's gastrointestinal disabilities. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will address other bases for service connection. In this, and in other cases, only competent evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of an expert. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent opinions of record were negative to the Veteran's claim in that no current gastrointestinal disability was related to the Veteran's active duty, to include the inservice symptoms requiring treatment in 1968. In particular, the Board finds that one of these opinions, the addendum provided by a VA examiner in June 2013, is highly probative. To the extent that the Veteran asserts that current gastrointestinal disability was incurred in or due to his active duty, to include inservice symptoms requiring treatment, the Board finds that etiological opinions are more suited to the realm of medical, rather than lay expertise. Determining the etiology of gastrointestinal disabilities is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinions. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Consequently, lay assertions of an etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). As the preponderance of the evidence is against finding a current gastrointestinal disability, including gastritis, was related to the Veteran's active duty, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for gastrointestinal disability is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Low Back Disability The evidence of record included current diagnoses of low back disability. The salient issue with respect to the Veteran's claim is, thus, whether a current low back disability was incurred in or due to his active duty. In essence, the Veteran claims that current low back disability was incurred in or due to his active duty. Specifically, in a July 2008 statement, the Veteran asserted that he was treated for leg numbness during his active duty, which he asserted is indicative of the presence of low back disability. The Veteran's service treatment records were negative for complaints of or treatment for a low back injury or disability or leg numbness. The August 1969 service discharge examination was normal for low back and there was no indication of leg numbness. According to a January 2000 VA treatment report, the Veteran complained of back pain since the previous day. He reported that he was getting up to go to work, turned over, and the pain started. He endorsed a history of back problems, without elaboration. A February 2002 VA treatment report showed that the Veteran reported right hip pain for the previous month due to a fall. He endorsed sciatica since 1970. A June 2002 VA treatment report demonstrated that the Veteran reported falling off a ladder 5 days prior, landing on his right hip. His past medical history included a lumbar laminectomy. The assessment was right hip contusion and lumbar sprain. The Veteran returned for additional treatment on several occasions at which time he endorsed continued posterior right leg pain and some low back pain radiating down his right leg. The assessment was bruised right hip. According to an August 2002 VA treatment report, the Veteran stated that he fell out of the back of a stationary truck. He complained of low back pain radiating into his right leg. The Veteran stated that he underwent back surgery in 1991. He denied other injuries. Later in August 2002, the Veteran underwent follow-up care and a radiological examination. Ultimately, the assessment was muscle strain/tendonitis secondary to the fall. Fractures were ruled out via the X-rays. A February 2004 VA emergency department report showed that the Veteran complained of right buttock pain that radiating down his right leg to his right ankle for the previous 3 or 4 days. The Veteran stated that he had a history of similar symptoms since 1987, with occasional exacerbation. The assessment was lumbar discogenic disease with radiculopathy. An April 2004 VA treatment report (primarily concerning depression), demonstrated that the Veteran stated that his back problem resulted from an incident at work when his ladder fell. He explained that somebody kicked a milk crate and it hit the ladder he was on, causing him to fall down with the ladder. He stated that he had been on disability/Workman's Compensation for 6 weeks or more since this injury. According to a February 2005 VA magnetic resonance imaging report, the Veteran reported a previous back surgery: a lumbar laminectomy occurring in 1981. A separate February 2005 VA treatment report demonstrated that the Veteran reported two previous back surgeries, one in 1981 and the other in 1991. On both occasions, the Veteran stated that his back was "broken." A March 2005 VA treatment report demonstrated that the Veteran reported chronic low back pain since 1978, status post two spinal surgeries. The Veteran described the initial injury as occurring when he moved a cement slab consequent heating and air conditioning work. He subsequently experienced incapacitating pain, followed by a pain-free period for about two years. After returning to work, he stated that he fell off ladder in 1991, which rendered him disabled for about a year. This injury was followed by another fall in approximately June 2004. Documents associated with the Veteran's application for Social Security disability benefits showed that the Veteran reiterated his history regarding back surgeries, albeit without the specific dates. No mention was made with respect to an inservice low back injury or inservice leg numbness. In November 2011, the Veteran underwent a VA examination. During the examination, the Veteran stated that he started experiencing back pain in 1980 after falling off a ladder. After reviewing the relevant evidence of record, including the Veteran's assertions, and after administering a clinical evaluation, the diagnosis was degenerative disease of the low back. The examiner then opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's active duty. In support of this opinion, the examiner provided the following rationale: The Veteran fall after service in 2004 was not aggravated the 2008 veteran low back condition. There was nothing on his separation service records that showed residuals of back condition. There is no Nexus between the fall of 2004 and his back condition while in service. Because the November 2011 opinion was confusion, in June 2013, the RO obtained a supplemental opinion from a VA examiner concerning the Veteran's claim of entitlement to service connection for low back disability. Ultimately, the examiner opined as follows: The [claims] file was reviewed including the Veteran's lay statements regarding his symptoms during and after his active duty service. It is my opinion that the Veteran's currently diagnosed back disability is less likely as not related to his military service and less likely as not an aggravation of an inservice injury based on the following evidence. The Veteran was interviewed in person for this opinion, he stated that he fell in Vietnam on his back and hit something sharp. Service treatment records do not show a fall and injury to the back. His separation physical exam[ination] dated [August 11, 1969] reported a normal spine exam[ination]. On the Veteran's initial [VA] claim in 1970, he did not claim nor report a back condition or injury. VA rehab[ilitation] treatment note dated [April 27, 2005], noted the Veteran reporting moving a concrete slab while doing air conditioning and heating work in 1978 and that he had back surgery in 1978. His current back condition is likely a result of this injury as this is the first significant back injury in the Veteran's medical record and it is likely the reason that he had his first back surgery in 1978 soon after this injury occurred. The Veteran has essentially asserted that he injured his low back during his active duty and, thus, a low back disability has existed since then. As such, and given the current diagnoses, the Board will address whether service connection is warranted on the basis of a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The earliest evidence of record demonstrating that the Veteran complained or was treated for low back disability was dated in 1978. This more than 9-year period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Nevertheless, during the pendency of this appeal the Veteran effectively asserted that he experienced low back symptoms during and since after his active duty discharge. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Lay evidence of symptomatology is pertinent to a claim for service connection if corroborated by medical evidence. Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). Accordingly, the Board must consider the lay evidence submitted by the Veteran regarding his low back symptoms during and since his active service discharge. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence is competent and sufficient in certain instances related to medical matters. Jandreau, 492 F.3d at 1377. Specifically, such instances include establishing 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. Id. Similarly, when a disability may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 307; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that certain disabilities are not conditions capable of lay diagnosis). The Veteran's assertions that he experienced a continuity of low back symptoms since active duty discharge are considered competent evidence as to the presence of observable symptoms such as pain. Layno, 6 Vet. App. at 469-70. While the Veteran's statements have been deemed competent evidence as to the presence of observable symptoms, the Board must also determine whether such evidence is credible. Id. In weighing the 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 veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 2006). During the pendency of this appeal, the Veteran asserted that he experienced an inservice injury. Specifically, he stated that he fell on a sharp object. He further stated that, during his active duty, he was treated for leg numbness, which he asserted was evidence of low back disability. However, a review of the Veteran's service treatment records did not reveal complaints of or treatment for a fall on a sharp object. Further, the service treatment records did not demonstrate that the Veteran was treated for leg numbness. Significantly, the Veteran did not complain of and was not treated for low back disability or leg numbness during his discharge examination. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). Moreover, according to numerous post-service treatment reports, the Veteran endorsed several post-service back injuries, including falls from ladders and consequent to tasks associated with his occupation, the first of which occurred in 1978. Based on the above, the Board finds that the Veteran's statements are not credible evidence as to experiencing low back disability or symptoms thereof during and since his active duty. Caluza, 7 Vet. App. at 506. The evidence of record is otherwise negative for evidence demonstrating a post-service continuity of low back disability or symptoms. As such, the Board finds that service connection for low back disability is not warranted on the basis of a continuity of symptomatology. 38 C.F.R. § 3.303(b). To the extent that the Veteran asserts that current low back disability was incurred in or due to his active duty, the Board finds that the matter of the determination of the origin of his low back disability, where the competent and credible evidence first demonstrates such disability several years after service, is more suited to the realm of medical, rather than lay expertise. The precise determination of one etiology is too complex for a layperson to proffer a competent opinion, especially given the evidence of several post-service low back injuries. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinions. Jandreau, 492 F.3d at 1377. Consequently, the Veteran's assertions do not constitute competent evidence of etiology in this case. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There was no competent post-service evidence of record that related the Veteran's low back disability to his active duty or to any event therein beyond his own assertions. The only competent etiological opinion of record was that of the November 2011 VA examiner, with the June 2013 addendum, which was negative to the Veteran's claim. The Board finds that the VA examiner's opinion, in particular the June 2013 addendum, to be highly probative. Accordingly, service connection is not warranted as the most probative evidence shows that the Veteran's current low back disability is not related to his active duty. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for low back disability, the doctrine is not for application. Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for a gastrointestinal disability is denied. Entitlement to service connection for low back disability, claimed as chronic lower back pain due to multilevel spondylosis, multiple disc herniation, status post multilevel laminectomy/discectomy and spondylolisthesis, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs