Citation Nr: 1333673	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  10-35 872	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for residuals of a low back injury, status post- operative.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and a friend


ATTORNEY FOR THE BOARD

W.T. Snyder, Counel

INTRODUCTION

The Veteran served on active duty from October 1978 to October 1979.

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas, that denied a reopening of the claim.

An April 2010 rating decision denied service connection for an acquired mental disorder, to include schizoaffective disorder, bipolar type, with depression, which the Veteran appealed.  In an August 2013 rating decision, the Appeals Management Center (AMC) awarded service connection for schizoaffective disorder, bipolar type, with depression with a 100 percent rating, effective in November 2009.  There is no indication the Veteran appealed the assigned effective date.  Hence, that issue is not before the Board and will not be addressed in the decision below.

The Veteran's claim for service connection for a low back disability was denied in an unappealed rating decisions issued in June 2003 and March 2008.  Ordinarily new and material evidence would be required to reopen the claims.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a)-(b) (2013). 

In December 2009; however, the RO received additional service personnel records that were in existence at the time of the prior decisions and which are relevant to the claim.  VA has adopted a regulation providing that when such records are received, the prior decisions will be reconsidered without the requirement for new and material evidence.  38 C.F.R. § 3.156(c) (2013).  The claim for service connection for a low back disability is, therefore, being considered on a de novo basis without the requirement for new and material evidence.

The Veteran appeared at a Travel Board hearing in December 2011 before the undersigned Veterans Law Judge.  A copy of the hearing transcript is in the claims file and has been reviewed.

The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has considered the documents in both files while reviewing this appeal.

In December 2012, the case was remanded for additional development. 


FINDING OF FACT

The Veteran's currently diagnosed post-operative low back disability did not have its clinical onset in active service nor is it causally related to active service.


CONCLUSION OF LAW

Post-operative low back disability was not incurred in active service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) and implemented by regulations found at 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013)).  

Prior to issuance of the rating decision appealed, VA notified the Veteran in June 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned in the event service connection is granted.  The letter also informed the Veteran of the reason his prior claim to reopen was denied and of the type evidence needed to reopen the claim.  The June 2009 letter was time-and content-compliant.  See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the hearing, the undersigned identified the issue before the Board, and asked questions of the Veteran that ensured his testimony addressed the relevant rating criteria.

The Board notes the Veteran's then representative's statement submitted in lieu of a VA Form 646, wherein he asserted the RO request for argument prior to the Board hearing violated M21-1MR, Part I, Chapter 5, Section F 27e; and was a denial of due process.  The representative was; however, afforded additional opportunities to present argument at the hearing and in the years thereafter.  The Bryant notice requirements were complied with in that the issues and evidence needed to substantiate the claim were discussed.  In light of the above, the Board finds VA has complied with the VCAA notice requirements.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  See 38 C.F.R. § 3.159(c)(4).  

Following the hearing, the undersigned remanded the case so additional identified records could be obtained.  The records related to the Veteran's award of Social Security benefits were obtained and included in the claims file, as were additional VA outpatient records.  Records related to reported treatment in the 1980s at JPS Hospital were deemed unavailable.  The Veteran informed AMC that he personally sought to obtain the records, and the facility informed him any records related to treatment in the 1980s were no longer available.  Neither the Veteran nor his representative asserts that there is additional evidence to be obtained.

In light of the above factors, the Board finds VA complied with the duty to assist the Veteran with his claim.  See 38 C.F.R. § 3.159(c).  Hence, the Board may address the merits of the appeal without prejudice to the Veteran.

Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology, Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease listed at 38 U.S.C.A. § 1101 (West 2002).  Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).

Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In relevant part, 38 U.S.C.A. § 1154(a) 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).

The Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d at 1316; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).
 
When considering whether lay evidence is 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, supra. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. 

When considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Analysis

The Veteran asserts that he injured his back while rappelling from a helicopter, for which he went to sick call and was treated.

Service treatment records dated in March 1979 note the Veteran's complaints of back and chest pain for one week, which he reported may have been due to carrying his rucksack and duffel bag.  Physical examination revealed range of motion (ROM) as "good," and the examiner noted objective evidence of pain only when the Veteran jumped.  The examiner assessed a lumbar muscle strain and prescribed Parafon.  Three days later the Veteran presented again with complaints of back pain after he had been handling M-60s.  He described the pain as sharp.  

Physical examination revealed moderate point tenderness, and a muscle strain was assessed.  The Veteran was also examined by a physician assistant (PA).  That examination revealed good heel-and-toe walking and no tenderness to palpation.  The PA assessed a pulled muscle.  In June 1979, the Veteran complained of back pain times one day.  The examiner noted the Veteran to have a three-month history of recurring back pain and referred the Veteran to a regimen of physical therapy.  

The service treatment records related to the physical therapy note the Veteran had poor lifting mechanics, and his therapy addressed that aspect.  In August 1979, the Veteran complained of low back pain after jumping from a three- to four-foot porch.  Physical examination revealed no edema or muscle spasm.  ROM was full without difficulty, and deep tendon reflexes were normal.  The examiner noted bilateral tenderness at the costovertebral angle and flank.  A urinalysis was assessed as normal.  The examiner diagnosed back pain of undetermined etiology.

On his August 1979 Report of Medical History for separation from service, the Veteran denied that he had, or had had, recurrent back pain.  The August 1979 Report of Medical Examination for Service Separation reflects the Veteran's spine was assessed as normal, and his chest X-ray was read as negative.

Private treatment records include those related to the Veteran's treatment for neck and back injuries that occurred when the 18-wheeler he drove and another 18-wheeler collided.  There also are records related to a Worker's Compensation claim related to a work related back injury in 2002, and another in 2006 that occurred when he fell from a truck while trying to stabilize a heavy cage.  

The Veteran eventually required a second back surgery in December 2006.  June 2007 medical records obtained by the Social Security Administration reflect notations that the Veteran has had two lumbar spine surgeries and one cervical spine surgery secondary to work-related injuries.  

Records dated in 2006 do note the Veteran's report of an injury in service, but no specifics are noted.  A September 2007 private post-operative record notes the Veteran's history of low back and neck pain for 10 years.

In a statement the RO received in June 2010, the Veteran indicated that he sought treatment for his back at a private hospital in 1979 after he separated from active service.  The Veteran testified at the hearing that he was unaware of VA in 1979, so he went to a private facility.  He testified further that the hospital informed him that any records related to his treatment in 1979, if extant, had been destroyed.

A November 2009 VA examination report reflects the RO obtained a medical nexus review of the claims file.  The VA examiner conducted a review of the claims file, to include the service treatment records.  The examiner opined that the service treatment records indicated the Veteran's in-service low back condition resolved, as there was no diagnosis of a low back disorder at the 1979 physical examination for separation.  

The examiner also noted the Veteran's low back injury secondary to a vehicular accident and his work-related injuries.  Based on his review of the claims file, the examiner opined is was not at least as likely as not that the Veteran's current post-operative low back disorder is causally related to the in-service low back condition for which the Veteran was treated in service.  The examiner opined further that it was more likely that the Veteran's current low back disorder is causally related to his multiple work injuries.

It is not in dispute that the Veteran has a current low back disability, as documented by treatment and examination records; and an in-service injury as shown by treatment during service.  A decision in this case turns on whether there is a nexus between the current disability and events in service.

The voluminous private records related to the Veteran's treatment for work-related injuries contain no notation of a reference by the Veteran to his in-service low back muscle strain until 2006, and then there were no specifics.  Neither is there any notation of a diagnosis or opinion that the Veteran's initial work-related low back injury or his post-operative residuals were causally related to the Veteran's in-service low back muscle strain, or otherwise causally related to active service.

The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran's lay reports may not be summarily rejected solely because there was no contemporaneous medical documentation; but instead, the Board must assess the lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).

The Veteran's June 2010 statement and his hearing testimony infer that he has had continuous low back symptomatology from the date of his separation from active service.  Nonetheless, the Board also notes there is no evidence of a chronic disease as defined in 38 C.F.R. § 3.309(a) during active service or within one year afterwards.  Hence, proof of service connection on the basis of continuous symptomatology is not available in this case.  Walker, 708 F.3d 1131.

In addition, his reports must be weighed against his report at service separation that he was having no ongoing back pain, his failure to report ongoing back pain at the time of his on-the-job injuries, and his report as late as 2007 that his disability dated back only 10 years.  

In light of the totality of the evidence, the Board is constrained to find the Veteran's assertion of continuous low back symptomatology, to include treatment immediately after active service, incredible.  Hence, even if continuity could serve to establish a nexus to service, the Veteran's reports could not serve to establish that nexus.  

The Veteran's service personnel records note his Military Occupation Specialty was an infantry telephone operator.  As earlier noted, the Veteran's service treatment records contain several entries related to his low back, and there is no notation of report of an injury secondarily to rappelling from a helicopter.  Instead, at his initial presentation, they note the Veteran reported his back pain may have been due to carrying his rucksack and duffel bag.  The closest thing to a fall-related injury noted is the Veteran's report of a three- or four-foot jump from a porch.  The Board deems this situation far from an absence of contemporaneous medical documentation, but instead, contemporaneous medical evidence which is contrary to the Veteran's assertions.

The Board also notes the statement by the Veteran's sister, K.W.  She related the Veteran's disappointment over not being trained as a driver of heavy equipment.  The Veteran's sister also related that the Veteran was injured in a training exercise when, "propelling" from a helicopter, he hit the ground too fast and too hard and jammed his back.  She notes the Veteran felt his complaints of pain were ignored, so he felt no one cared, and he decided to separate from service.

Initially, there is no indication that the Veteran's sister had personal knowledge of the events in service.  Her reports echo much of what the Veteran has said during the course of the appeal, but the contemporaneous record contradicts these reports.  The service treatment records show that the Veteran did not mention a helicopter related injury when evaluated in-service for his back complaints, and do not explain why the Veteran would not have mentioned back pain at service separation, or the pertinent history at the time of his on-the-job injuries and claims for worker's compensation benefits.  For these reasons, the Board accords her statement little probative value.

The VA examiner has provided the only probative medical opinion with regard to nexus, and that opinion is against the claim.  The examiner did not clearly consider the Veteran's reports, but inasmuch as these reports are not deemed credible, the failure to consider these reports did not affect the adequacy of the examination and opinion.  The examiner's opinion was based on an accurate history, was definitive and was supported by sufficient rationale.  Hence the opinion is of significant probative value.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In light of the above, the Board is constrained to find the preponderance of the evidence is against the claim.  38 C.F.R. § 3.303.  In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to service connection for residuals of a low back injury, status post-operative, is denied.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs