Citation Nr: 1333810 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-02 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1965 to February 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in November 2011. In the Written Brief Presentation, dated in October 2013, the representative raised the additional issues of entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) and entitlement to service connection for hypertension secondary to service-connected diabetes mellitus and requested that these issues be referred to the RO for additional development. The issues of entitlement to TDIU and entitlement to service connection for hypertension secondary to service-connected diabetes mellitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran is not shown to have a low back disability that had its onset in service or is otherwise related to service or any incident therein. CONCLUSION OF LAW The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by service, nor may any arthritis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1154(a)5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. Additionally, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Additionally, the claim was remanded in November 2011 for additional development of the record. The remand directives included obtaining any outstanding medical records and scheduling the Veteran for an examination to determine the nature and etiology of any identified low back disability. The Veteran was afforded an appropriate examination in December 2012, in compliance with the remand directives. Also, the Veteran did not respond to the request for more information in connection with the request for records from Baptist Health Care. Accordingly, there is no further duty to assist in obtaining these records. In light of the foregoing, the Board finds that the AMC has substantially complied with the November 2011 remand instructions, and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third Shedden elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (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. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Arthritis is recognized as chronic under 38 C.F.R. § 3.309(a). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of 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, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Low Back Disability The Veteran contends that he injured his back working in the motor pool in Vietnam, and that he was treated in the field and placed on light duty. After he returned to Ft Carson, a private was assigned to him for three months to help him put on and tie his shoes. The Veteran believes that his current back problems, including arthritis are related to service. Regarding the Veteran's contentions, while he is competent to describe the symptoms he has experienced, the etiology of any current low back disability may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide a complex medical opinion concerning the nature or etiology of the claimed disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The STRs showed that the Veteran complained of low back pain when he was treated for prostatitis while in Vietnam in January 1966, and at Ft. Carson in January 1868. The STRs also showed that the Veteran reported a two to three month history of low back pain in February 1967, and recurrent back pain for more than four months when seen in May 1967. Examinations of the Veteran's spine were negative on both occasions, and he was treated with medication, a bed board and back exercises. Parenthetically, the Board notes that the STRs reflect treatment for various maladies during his service in Vietnam, but do not show any complaints, treatment or abnormalities for a specific back injury or any period of light duty due to any back problems. On a Report of Medical History for service separation in January 1968, the Veteran specifically denied any history of recurrent back pain, and no pertinent abnormalities were noted on examination. The Veteran's spine and musculoskeletal system was normal. The first reported complaint of any low back problem subsequent to service was with the filing of this claim in October 2006. When examined by VA in January 2007, the Veteran reported that he pulled a muscle in his lower back and had sharp, stabbing pains, muscle spasms and radiating pain into both legs while in Vietnam. He said that he was put on bed rest for several days and light duty for six months. Since then, he has had recurring back pain three to four times a year, lasting three to five days each time with associated weakness and numbness. On examination the Veteran had normal forward flexion and rotation with some decreased extension and lateral flexion. There was evidence of decreased lordotic curve, but no scoliosis or kyphosis. There was no palpable tenderness over the lumbar area, paraspainal muscles were normal and straight leg raising was negative. X-ray studies revealed multilevel degenerative changes of the thoracolumbar spine with possible minimal wedge deformity of the L-1 vertebral body. The diagnoses included degenerative arthritis of the lumbar spine with residuals, diabetes mellitus, and bilateral peripheral neuropathy of the upper and lower extremities. The examiner opined that the Veteran's peripheral neuropathy was due to his diabetes, but said that he could not offer an opinion as to whether the Veteran's low back disability was related to service without resorting to speculation. At the direction of the Board remand in November 2011, the Veteran was examined by VA in December 2011, to determine the nature and etiology of his current low back disability. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the findings on examination. The Veteran reported the onset of low back pain without radiculopathy after lifting and twisting an 80 pound object in service. The STRs showed the Veteran was treated for back pain on a couple of occasions in service, including when he was treated for chronic prostatitis, and that there were no abnormal findings on any examination. The Veteran reported that he worked as a carpenter after service, but quit working in 2006 when he was diagnosed with diabetes. The Veteran reported that he never sought medical attention for any back problems after service until 2006, and that he self-treated occasional episodes with over-the-counter medication and rest when necessary. The diagnosis was degenerative disc disease of the lumbar spine. The examiner opined that it was less likely than not that the Veteran's current low back disability was incurred in or caused by the reported back injury in service or any other event or incident during service. The examiner reasoned that the normal examinations in service suggested that the alleged injury was of insufficient severity to cause any physical findings, and that the Veteran's "[c]urrent condition" could be better explained by a combination of the natural aging process and his diabetes with neuropathy. The examiner noted that the Veteran did not require any medical attention after service until 2006, at which time, his symptoms were felt to be related to his diabetic peripheral neuropathy. The examiner indicated that it is not medically or scientifically plausible that a minor injury not causing any contemporaneous objective findings, could be responsible for acceleration of the degenerative process. He noted that medical science is constantly changing, and that despite the previously presumed concept - which has never been proven, that minor injuries can cause degenerative changes later in life, it has now been shown in peer reviewed medical literature, that genetics is the major determinant of spinal degeneration. In this case, the Board finds the December 2011 VA opinion persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered a rational and plausible explanation for concluding that the Veteran's current low back disability was not related to service or any incident therein. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Furthermore, the Veteran has not presented any competent medical evidence to rebut this opinion. Thus, the most probative evidence of record consists of the December 2011 medical opinion. Indeed, VA treatment records dated beginning in January 2000 show that for several years while the Veteran sought treatment for such routine complaints as sinus problems and chest cold, he did not have specific complaints of chronic back pain. The Veteran contends that he self-treated his episodes instead. Unfortunately, the Board cannot find that these statements establish a credible lay continuity of symptomatology. It does not seem plausible that the Veteran suffered from chronic debilitating back problems on a continuous basis since service but chose not to be evaluated for the problems or seek treatment where the record shows that he sought treatment for such routine ailments as sinus problems and chest colds. The medical record shows that when the Veteran suffers from medical problems he seeks appropriate medical attention. The Veteran's current contention is inconsistent with the behavior shown by the medical records. Thus, the record does not establish a credible continuity of back symptomatology since the Veteran's discharge from service. Concerning the Veteran's current assertions that the back injury he suffered in service was severe, the Board finds that his allegations are inconsistent with the evidence contemporaneous to service. The Board does not question the fact that the Veteran had some persistent low back pain for several months in service. However, the fact that he specifically denied any recurrent back pain - and was not shown to have any abnormalities of the spine at the time of his service separation examination in January 1968, suggests that his back symptoms resolved without residual disability consistent with the underlying rationale of the December 2011 VA examiner. The Board finds that the evidence contemporaneous to service relating to the type and severity of back complaints the Veteran suffered from in service is more probative due to its proximity to service than recollections made by the Veteran decades later. The mere fact of in-service back complaints is not enough; there must be chronic disability resulting from such complaints. Here, there is no probative credible evidence that a chronic disability resulted from the alleged in-service back injury. Finally, with respect to the representative's assertion that the December 2011 VA examiner's comment that the Veteran's "current condition can be better explained by combination of natural aging process and diabetes with neuropathy[.]" "provided a route to service connect" the Veteran's low back disability to his service-connected diabetes mellitus, the Board finds that the examiner's opinion does not in fact support the representative's conclusion. The statement was offered in the context of describing the Veteran's medical history and the lack of medical treatment for "anything related to his back" after service until 2006. The examiner noted that the Veteran was first diagnosed with diabetes mellitus in 2003, and that in 2006, he was seen for "radicular-like symptoms" which were felt to be related to diabetic peripheral neuropathy. The Board finds that there is nothing in the report or the examiner's discussion of the Veteran's medical history or clinical findings that shows that the physician was suggesting a causal relationship between the Veteran's degenerative disc and joint disease and his diabetes. Rather, the Veteran's "radicular-like symptoms" were not associated with a low back disability, but to his diabetes mellitus for which service connection was established. Furthermore, the Board notes that the examination report included additional questions for the examiner to address, such as, whether any identified disability (in this case, the Veteran's low back disability) was proximately due to, the result of, or aggravated by a service connected condition. Since the examiner did not indicate that there was a relationship between the Veteran's low back disability and his service-connected diabetes, the Board finds no support for the representative's assertions. In the absence of competent and probative medical evidence showing that the Veteran's current low back disability is related to service or that he developed arthritis within one year of service discharge, the Board finds no basis for a favorable disposition of the Veteran's appeal. Accordingly, the claim is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs