Citation Nr: 1334183	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  08-17 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for a back disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel

INTRODUCTION

The Veteran served on active duty from February 1977 to June 1989. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.   The RO found that new and material evidence had not been received to reopen the claim of service connection for a back disorder. 

With respect to the characterization of the issue on appeal, the Board notes that, in an April 2000 rating decision, the Veteran's claim for service connection for a back disorder was denied.  As such, the December 2006 rating decision on appeal characterized the issue as whether new and material evidence had been received so as to reopen such previously denied claim.  However, VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received.  38 C.F.R. § 3.156(c).  In this case, additional evidence consisting of a July 1985 service treatment record reflecting complaints of back pain after falling down was associated with the claims file in July 2012.  As such record was in existence at the time of the April 2000 rating decision, but not of record, and is relevant to the instant claim, VA must reconsider the issue of service connection for a back disorder de novo.  Therefore, this issue has been characterized as shown on the first page of the decision.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in November 2010.  A transcript of this hearing has been associated with the Veteran's VA claims folder.  

In July 2011, the Board remanded the issue on appeal for further development and the case now returns for further appellate review.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the Virtual VA claims file does not reveals additional VA treatment records dated through April 2013.  While the agency of original jurisdiction (AOJ) considered VA treatment records dated through in the February 2013 supplemental statement of the case, the Veteran's representative specifically waived AOJ consideration of the additional VA treatment records contained in Virtual VA.  38 C.F.R. § 20.1304(c) (2012).   Therefore, the Board may properly consider such newly received evidence.


FINDING OF FACT

A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service.


CONCLUSION OF LAW

The criteria for service connection for a back disorder have not been met.  38 U.S.C.A. §§ 1101, 1112,1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

	I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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.  	

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.  

Pertinent to the claim on appeal, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2005 letter, sent prior to the initial December 2006 rating decision, advised the Veteran of the evidence and information necessary to substantiate her service connection claim, as well as her and VA's respective responsibilities in obtaining such evidence and information.  Additionally, a June 2006 letter, also sent prior to the December 2006 rating decision, informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA treatment records have been obtained and considered.  In this regard, the Board remanded the case in July 2011 so as to obtain any outstanding clinical records from the Oakland Naval Hospital dated in 1984 and 1985.  Thereafter, documentation in the claims file reflects that records from 1985 from such facility were obtained, but the AOJ determined in an October 2011 Memorandum of Unavailability that records from the Oakland Naval Hospital dated in 1984 were unavailable.  The AOJ specifically determined that all efforts to obtain such records had been exhausted and further attempts were futile.  Thereafter, also in October 2011, the Veteran was contacted by telephone and, at such time, she advised that she had no records for 1984, but the incident happened in 1985 and VA had those records.  Therefore, the Board finds that VA has satisfied its duty to assist in this regard.  Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained.    

The Veteran was afforded a VA examination in September 2012 in order to adjudicate her service connection claim.  The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include her service treatment records; and a full physical examination.  The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue on appeal has been met. 

Additionally, in November 2010, the Veteran was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 
§ 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the November 2010 hearing, the undersigned Veterans Law Judge noted the issue on appeal.  Also, information was solicited regarding the Veteran's in-service experiences she alleges resulted in her back disorder, the type and onset of symptoms, and her contention that her military service caused her back disorder.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  As the hearing discussion raised the possibility that there were outstanding treatment records available from Oakland Naval Hospital, the Board remanded the issue in July 2011 in order to obtain such records.  Moreover, the Board provided an opportunity for the Veteran to identify any additional records and obtain additional VA treatment records.  Additionally, while on remand, the Veteran was afforded a VA examination in September 2012 so as to determine the nature and etiology of her back disorder.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2)  and that the Board may proceed to adjudicate the claim based on the current record.

As indicated previously, in July 2011, the Board remanded the case for additional development.  As discussed in the preceding paragraphs, records from Oakland Naval Hospital were requested and VA treatment records dated through April 2013 have been obtained.  Additionally, in an August 2011 Report of Contact, the Veteran indicated that she only received treatment through VA.  Therefore, the Board finds that the AOJ has substantially complied with the July 2011 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (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). 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim.

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In documents of record, to include an August 2012 statement, and at her November 2010 Board hearing, the Veteran reported she has a current back condition from when she fell and passed out while working at the gym's outdoor recreation.  She testified that she hurt her back when she was in service and on light duty.  She also indicated that she was pregnant at the time of her reported in-service injury.  Therefore, she alleges that service connection for her back disorder is warranted.

The Veteran's service treatment records include a June 1985 complaint of back pain. At such time, it was noted that she was 31 weeks pregnant and had chronic back pain for the past four months.  She was prescribed bed rest.  In July 1985, the Veteran was noted to be 35 weeks pregnant with complaints of back pain.  It was noted that she fell down and there was a question as to whether she passed out.  In August 1985 it was noted that she was 37 weeks pregnant and had severe back pain.  She was ordered to stay at home.  On the Veteran's April 1989 Report of Medical History for Separation, she checked "no" to recurrent back pain and, on the April 1989 Report of Medical Examination for Separation, the Veteran's spine was found to be clinically normal.    

After the Veteran's military service, she was seen in March 1991 for lower back pain radiating into the right hip.  She reported that it started the day before when she was stooping down.  It was noted that she denied any injury or trauma, past or present.  The Veteran's VA treatment records include an active problem list that includes low back pain with the date of diagnosis as September 3, 1998.  In January 2007, a emergency room note indicated that the Veteran presented with a history of chronic low back pain and had worsening low back pain since the day before.  She was assessed with chronic low back pain with exacerbation.  In July 2011, it was stated that the Veteran had pain in the paraspinal lumbar muscles.  She denied doing anything different and she denied any injury.  Also in July 2011, it was stated that she had a history of back pain.  In January 2012, the Veteran reported a history of lower back pain that radiated to the right buttock, which was noted to have been present for was one to two years or more.  An August 2012 treatment note indicated that the Veteran reported that in 1985 she hurt her back when she was working out and pregnant.  It was noted that she felt better afterwards, but still had some problems with the lower back although she did not go in for a check-up.  It was noted that she was discharged from the military in 1989 and started having lower back pain in 1991.  In September 2012 it was stated that she had long term back pain.    

The Veteran was afforded a VA examination in September 2012.  At such time, she was diagnosed with degenerative disc disease with radiculopathy.  The examiner interviewed the Veteran; reviewed the claims file, to include the service treatment records; and conducted a physical examination.  He noted the aforementioned history of the Veteran's fall in 1985 with complaints of back pain, her treatment in March 1991 for back pain after stooping, and her subsequent treatment through VA.  The VA examiner stated that the Veteran had one isolated event in service of low back pain from a fall while pregnant, one post-service visit documented in 1991, and then no objective medical treatment noted until 2010, it was less likely as not that the Veteran's present low back condition was related to her active duty service and more likely than not related to normal wear and tear post service.  

As an initial matter, the Board observes that there is conflicting evidence as to whether the Veteran has a current diagnosis of arthritis of the spine.  In this regard, the Board notes that a July 2011 X-ray revealed an impression of Grade I retrolisthesis of L5 on S1 that represented an interval change.  It was also noted that there was probably L5 spondylolysis.  The X-ray also showed a round calcific density over the left upper abdomen that may represent an upper pole left renal stone versus a splenic granuloma.  In connection with such X-ray, the Veteran was advised that such showed arthritis.  However, the report from the July 2011 X-ray did not note any degenerative changes.  Thereafter, an August 2012 X-ray revealed an impression of mild degenerative spondylotic changes in the lower lumbosacral spine from L4 to S1, a mild diffuse disc bulge at L5-S1 that may represent a small annular fissure, and mild bilateral neural foraminal narrowing at L5-S1.  In contrast, the September 2012 VA examiner noted a diagnosis of degenerative disc disease with radiculopathy.  Moreover, he specifically indicated that X-rays did not reveal arthritis.   

However, even assuming that the Veteran has arthritis of the spine, the Board finds that presumptive service connection for such chronic disease is not warranted.  In this regard, the evidence does not show that arthritis of the spine manifested within one year of her service discharge in June 1989.  Rather, the first X-ray evidence that was noted to indicate arthritis was dated in July 2011.  

The Board notes the Veteran's assertions that she has experienced a continuity of back pain since service.  In this regard, the Board retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  However, as discussed below, the Board finds that the Veteran's statements are contradictory and are not deemed credible; thus, presumptive service connection for arthritis of the spine cannot be established on the basis of continuity of symptomatology.   

While the Veteran was treated for back pain during service, she reported no back pain on her Report of Medical History for Separation.  Moreover, her spine was found to be clinically normal on her separation examination.  Furthermore, it is pertinent to note that the Veteran never gave her medical care providers a history of having a back disability either since service or due to service until August 2012 (after she filed her claim for service connection).  Moreover, even two years after service when she sought medical care in June 1991, she denied any past trauma or injury.  Lay statements made when medical treatment was being rendered may be afforded greater probative value.  These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care").  

In light of evidence as noted above, the Board has to question the credibility of the Veteran's current contentions.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  The Board finds that the Veteran's current assertions of experiencing a back disability during and since service are not credible and, thus, are entitled to no probative weight.  In this regard, the record reflects that the Veteran only reported that her back disability was due to service after filing her claim for service connection.  Furthermore, the Veteran's service treatment records indicate that she denied any chronic back disability at separation of service, which is in direct conflict with the Veteran's post-service statements that her symptomatology continued since her in-service fall and pregnancy in 1985.  As such, the Veteran's recent lay assertions lack credibility, because they are contradicted by notations in objective records reflecting her contemporaneous reports pertinent to a back disability.  In light of these contradictory statements, any current assertions as to experiencing a back disability since service, advanced in furtherance of the appeal, are deemed not credible.  Consequently, presumptive service connection for arthritis of the spine, to include on the basis of continuity of symptomatology is not warranted.  38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

Therefore, the remaining inquiry is whether the Veteran's current back disorder, variously diagnosed, is related to her military service.  In this regard, the Board notes that the only medical opinion of record from the September 2012 VA examiner indicates that it was less likely as not that the Veteran's present low back condition was related to her active duty service and more likely than not related to normal wear and tear post service.  Such opinion was based upon consideration of the Veteran's documented history, including her service treatment records, her post-service history, and her assertions.  Moreover, the VA examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two.  See Nieves-Rodriguez, supra; Stefl, supra.  Consequently, the Board assigns great probative value to the VA examiner's opinion.  There is no contrary opinion of record.   

The Board has considered the Veteran's lay assertions that her current back disorder is related to her military service, to include an in-service fall; however, as a lay person, she is not competent to render such a complex medical opinion.  In this regard, she is competent to describe an in-service injury, such as a fall, as well as her current back pain; however, as the cause of such a disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, she is not competent to render such a complex medical opinion.  In this regard, diagnosing a back disorder and determining the etiology of such involves examination and specialized testing, as well as knowledge of the result of trauma to the spine.  As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  

Therefore, the Board finds that service connection for a back disorder is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder.  As such, that doctrine is not applicable in the instant appeal, and her claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for a back disorder is denied. 



____________________________________________
A. JAEGER
	Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs