Citation Nr: 1334159 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06-30 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to March 1981 (with reenlistment in February 1980). This case was previously before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a lumbar spine disability. This claim was remanded by the Board for further development in October 2010 and June 2013 and is now ready for appellate review. In April 2006, the Veteran testified at a hearing before a Decision Review Officer. A transcript of that hearing is of record. The Veteran withdrew his request for a hearing before a Veterans Law Judge in January 2009 and has not requested a new hearing. Therefore, the Board finds that the Veteran has withdrawn his request for a hearing. 38 C.F.R. §§ 20.702(e), 20.704(e) (2013). FINDING OF FACT A lumbar spine disability was not present in service or for many years thereafter and has not been shown to be related to active duty; the Veteran has not presented credible testimony as to the existence of a lumbar spine disability during service or continuity of lumbar spine symptomatology from service to the present time. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include on a presumptive basis as a chronic disorder, are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A September 2005 letter issued prior to initial adjudication contained the content of notice required with respect to the information and evidence necessary to prevail in the Veteran's claim for service connection for a lumbar spine disability. Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), service personnel records, VA medical records, private medical records, and Social Security Administration (SSA) records have been obtained. The Veteran was also afforded a VA examination in July 2013 that was adequate because the reports from this examination reflect a review of the claims file and the relevant history contained therein, consideration of a history provided by the Veteran, thorough clinical findings, and a relevant nexus opinion supported by adequate rationale. As such, this examination was substantially compliant with the instructions of the June 2013 remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. In this regard, the record reflects extensive efforts to conduct the development to obtain additional records requested by remand, to include obtaining additional VA clinical records dated after August 2008 (such records dated through June 2013 have been associated with Virtual VA file, which is VA's electronic data storage system) and affording the Veteran the opportunity to identify any non VA provider of treatment; provide clinical or non clinical evidence that he had symptoms of a lumbar spine disability proximate to his service discharge in 1981 or prior to August 2005; and to provide any information he may have recalled about purported duty in Alaska, to include when such duty occurred and whether such duty was during active or reserve duty (see November 2, 2010, notification letter). The additional records from the Social security Administration requested by remand were received in November 2010. The Appeals Management Center (AMC) contacted the National Personnel Records Center (NPRC) in April 2011 and specifically requested, as directed by the October 2010 remand, "a search for additional clinical records for the Veteran, specifically to include any records pertaining to his period of service beginning in 1977 to 1980." As directed by the October 2010 remand, the April 2011 request to NPRC directed that they forward the complete service personnel records, to include performance evaluations. The April 2011 request of NPRC also as directed by remand asked for additional service treatment records, a separation examination from what was said to be the Veteran's "first" period of service, Uniform Code of Military Justice (UCMJ) records, psychiatric treatment records, and or unfiled hospital records for treatment facilities at Fort Wainwright, Alaska. In response, addition service personnel records were received in April 2011 but no other military records were located by NPRC and, in point of fact, close examination of the STRs that were previously of record reflect STRs beginning from the March 1977 entrance examination and additional STRs dated in 1977, 1978, 1979, and 1980 extending to the reports from the February 1981 separation examination. A July 2011 response from NPRC specifically stated that there were no records pertaining to the Veteran at Fort Wainwright. With respect to the direction in the October 2010 remand that, in case of a negative response from NPRC, the Veteran's reserve unit be contacted to obtain records, a July 2011 memorandum by the AMC explained that the Veteran was never assigned to a reserve unit. The Veteran was notified in July 2011 that no records from treatment of the spine from Fort Wainwright were available and asked him to submit such records if they were in his possession, and no reply to this letter has been received. Another memorandum from the AMC dated in September 2011 formally found that no clinical records from NPRC documenting treatment for a spine condition for the Veteran at Fort Wainright (misspelled as "Fort Wright) were available. Finally, the translations requested by the Board in the October 2010 remand were completed in July 2011. There is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. As such, and as the Veteran submitted a statement in August 2013 in response to the July 2013 supplemental statement of the case (SSOC) requesting that his case be immediately sent to the Board, the Board finds it proper to proceed with an adjudication of the Veteran's case. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for arthritis which develops to a compensable degree within one year after discharge from service although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree (10 percent for arthritis). 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as arthritis listed under 38 C.F.R. § 3.309(a)). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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). 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. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes at the outset that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file with an emphasis on the evidence relevant to this appeal. (The July 2013 SSOC reflects consideration of the previously referenced VA clinical records dated through June 2013. Also contained in the Virtual VA file is an August 2013 brief to the Board filed by the Veteran's representative that has been considered by the undersigned.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Summarizing the pertinent evidence with the above criteria in mind, the STRs, to include the reports from the February 1981 separation examination, do not reflect a lumbar spine disability. The Veteran specifically denied having any "[b]one, joint or other deformity" or "[r]ecurrent back pain" on a medical history collected in conjunction with the separation examination. The Veteran's first claim of entitlement to service connection for a low back disability was received in August 2005. The Veteran has made various statements with regard to the in-service cause of the claimed lumbar spine disability, asserting initially in his August 2005 claim that that his lumbar spine disability was incurred at the same time that he sustained a fracture to a finger as a result of an in-service fall. With regard to this fall, the Veteran testified at his April 2006 hearing that the fall that resulted in the asserted finger and back disability occurred when he fell while in the Motor Pool. However, when first examined by VA in October 2005, he reported that his back pain did not result from any specific injury during service. He later contended, to include in an August 2008 statement, that he injured his back while skiing as an Infantryman while stationed in Alaska. [As support for his assertion that he served in Alaska, he submitted photographs in October 2008, one purported of him standing in front of sign indicating he was at Fort Wainwright, Alaska. He also submitted a statement dated in August 2007 from an individual who reported that he served with the Veteran in January 1978 at a military training camp in Alaska as an infantry nurse and that he rendered medical assistance (for an unspecified injury) to the Veteran after witnessing him fall during a training exercise.] The first clinical evidence of a back disability is contained in a VA clinical record dated in October 2000 that included an assessment of acute lumbosacral pain with herniated nucleus pulposus by CT with left radiculopathy. Significantly, the Veteran at that time told the examiner that he had never had a back problem before the prior few weeks. A July 2005 VA x-ray and November 2005 private CT scan of the lumbar spine demonstrated degenerative changes. Additional clinical evidence pertaining to the lumbar spine includes a post service injury involving the back, in the form of a gunshot wound, demonstrated by VA clinical records dated in September and October 2008. A VA examination conducted in March 2011, documented to have included a review of the claims file by the examiner, resulted in the conclusion by the examiner that the Veteran's lumbar spine disability was less likely as not related to service. As support for this conclusion, the examiner noted that there was no evidence of "treatments or sick calls" showing a back condition during service or the year thereafter. Based upon this evidence, the first element of service connection is established as there is evidence of a current disability. In its June 2013 remand, the Board found that the March 2011 VA examination was inadequate because it did not discuss the lay testimony from the Veteran as to his claimed in-service back disability or any post service injuries, to include the 2008 gunshot wound to the back. As such, this remand directed that the Veteran be afforded an opinion by an examiner that considered the Veteran's contentions that he sustained a back disability as a result of falling on skis, and hauling skis, while serving on active duty in Alaska. The examiner was also asked to comment as to whether any post-service injuries to the back, such as the 2008 gunshot wound, caused any non-service related lumbar spine disabilities. The requested opinion was provided following a July 2013 VA examination. This opinion, documented to have been preceded by a review of the claims file and consideration of the contentions of the Veteran that he sustained multiple traumas to the back while skiing and pulling heavy sleds during military service in Alaska, was that it was less likely than not that the Veteran's back disability was the result of service. As support for this conclusion, the examiner noted the fact that when the Veteran reported for VA treatment in October 2000, he reported no prior back problems and only a few week history of back pain. The examiner also noted that the back disability shown in October 2000 was 19 years after service, and that it was several years thereafter that the Veteran first filed his claim for service connection for a back disability. With respect to the gunshot wound, the examiner stated that given its location in the body, there was no trauma to the lumbar spine as a result of this gunshot wound. As the first diagnosis of a back disorder was made many years after service, service connection on a presumptive basis must be denied. Applying the pertinent legal criteria to the facts summarized above, the Board notes initially that "it is the duty of the [Board] as the factfinder to determine credibility of the testimony and other lay evidence." Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). In the instant case, the Board finds that the Veteran has not credibly reported the existence of an in-service back disability or injury. The Board makes this determination for multiple reasons, the first being his denial of having any problems related to the back at separation from service. Secondly, when he presented for treatment at a VA medical facility in October 2000, the Veteran only reported a few weeks history of a back disability, rather than one of in-service onset. Such contemporaneous documents have much greater probative value than those made by the Veteran to VA adjudicators asserting an in service onset of his back disability, both because of their contemporaneous nature and because they were prepared by medical personnel for neutral (treatment/evaluation) purposes rather than in contemplation of the receipt of monetary benefits. Finally weighing against the Veteran's credibility are the varying accounts as to the nature of the claimed in service back disability, to include a fall in the motor pool, no specific in service injury, and injuries sustained after falls while skiing/lugging skis while service in Alaska. With respect to this latter asserted cause of a back injury, the service personnel reports do not reflect any service in Alaska, to include at Fort Wainwright, further impeaching the credibility of the Veteran, and rendering the August 2007 statement from the individual who reported that he treated the Veteran at a military training camp in Alaska not credible. As this individual did not specify what injury he treated the Veteran for, the Board finds his statement to be unpersuasive and of no probative value even if the statement would be considered credible. Thus, because the service treatment records show no evidence of an injury or treatment of a back disorder in service, and as the Veteran's credibility regarding his claimed in-service injuries to his back have been discounted, as well as those of his lay witness, the Board finds that the second element of service connection, service incurrence, has not been demonstrated. There is no allegation or evidence of a preexisting disorder and a discussion of aggravation in this context is unnecessary. The Board does recognize that the mere absence of medical records demonstrating treatment for the lumbar spine during or proximate to service does, by itself, contradict any of the Veteran's statements, even were they to be found credible, about his lumbar spine symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms of the claimed condition for at least 19 years after service. This long period without problems weighs against the claim. Also with regard to the Veteran's lay assertions, even were they considered credible, the Board emphasizes that the matter of the medical etiology of a spine disability is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion as to the etiology of any current back disability. See, e.g., Jandreau, Woehlaert, Kahana, supra; see also Bostain v. West, 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As such, in this appeal, lay assertions of medical etiology-and, more specifically, medical nexus to service-have no probative value. Accordingly, the Veteran can neither support his claim, nor counter the negative medical opinions of record, which are un-contradicted by any other medical evidence of record, on the basis of lay assertions alone, even were they considered credible which the Board does not in this case. Finally, even if the Board were to find the Veteran's contention of what he claims occurred in service truthful regarding service incurrence, the medical evidence provided in the most recent VA examination of July 2013 is against the claim. As noted above, the examiner found significant that the Veteran failed to complain about back problems until 19 years after he was discharged from service. His contemporaneous comments to medical provided were noted to conflict with the statements he made in connection with his claim for monetary benefits. The examiner found that it was less likely than not that the current lumbar myositis with degenerative changes and degenerative disc disease is less likely to be related to military service. This is the only medical opinion which addresses the etiology of the back disorder. As it is a negative nexus opinion, the Board finds that the third element of service connection has not been demonstrated. For the foregoing reasons, the Board concludes that the claim for service connection for a lumbar spine disability must be denied. In reaching the decision to deny this claim, the Board has carefully considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs