Citation Nr: 1334260 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-38 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder due to degenerative disc disease with L4-5 radiculopathy on the left. 2. Entitlement to service connection for a neck injury. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corp. from September 1987 to June 1989. This appeal to the Board of Veterans' Appeals (Board) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the Veteran's service connection for a low back disorder due to degenerative disc disease with L4-5 radiculopathy on the left. The issue of entitlement to service connection for a neck injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative medical and other evidence of record indicates the Veteran's current low back disorder is unrelated to his military service, including his injury in Japan. CONCLUSION OF LAW A chronic low back disorder was not incurred in or aggravated by the Veteran's active military. 38 U.S.C.A. §§ 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim, or if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, VCAA notice requirements were initially sent to the Veteran in February 2006 and May 2006 letters. These VCAA letters informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties in obtaining evidence. Thereafter, the case was readjudicated by way of a statement of the case (SOC) in August 2009. So, he has received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private), and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains STRs, VA medical evidence, private medical evidence, lay statements, and the Veteran's contentions. The Veteran has been medically evaluated in conjunction with this claim. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the Veteran was provided a VA examination. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the duties to notify and assist have been met. II. Background The Veteran's STRs show that on the Veteran's entrance examination and report of medical history, nothing was noted about his back. In January 1988, he reported injuring his back. This injury was diagnosed as mechanical back pain and not as low back pain. The Veteran did not have any other episodes of back pain. Subsequently, his separation examination listed his back as normal, and there were no other notes after his service that would indicate any ongoing problems regarding low back pain. Evidence from Kaiser Permanente Medical Center, dated in 1997, are of record, but show no low back complaints or treatment. The Veteran stated that his low back pain problems became significant in 2002, after working in the construction industry for 20 years, during his Compensation and Pension (C&P) Examination in March 2006. The record reflects that in October 2002, the Veteran experienced a work-related injury and is currently not working. Private medical treatment records, dated in March 2004 stated that the Veteran admitted himself, complaining of work-related back pain, for surgery. During the physical examination beforehand, mechanical findings throughout the low back revealed a decreased range of motion and positive straight leg raising on the left to 60 degrees. The Veteran underwent an MRI of the lumbosacral spine which revealed evidence of a left L4-5 herniated nucleus pulposus with caudal extrusion. As a result, the Veteran underwent a laminectomy. Post surgery, the Veteran was diagnosed with left L4-5 herniated nucleus pulposus. In September 2004, based on private medical records, the Veteran's private medical doctor, Dr. M.A.B., wrote that the Veteran's back pain "could" be from trauma experienced during his military service. In June 2005, the Veteran initiated a claim for service connection for a low back disorder due to degenerative disc disease with L4-5 radiculopathy on the left. In March 2006, the Veteran underwent a VA C&P examination of his spine. During that examination, the Veteran's claims file was not available for review, nor were any other medical records, and all history was taken from the Veteran himself. The VA examiner diagnosed the Veteran with low back pain due to degenerative disc disease (DDD) with L4-5 radiculopathy on the left. In May 2006, the VA examiner completed an addendum to the Veteran's C&P examination, reviewing the Veteran's claims file. The examiner stated that the Veteran was only treated once, for an episode of low back pain on January 25, 1988. It was diagnosed as mechanical mid back pain, not low back pain. The Veteran had complained of right-sided pain in the back for 10 days. He denied any injury and there was no history of trauma. The Veteran had no fever, night sweats, chills, no hematuria, or dysuria. The Veteran's gait was normal, and there were no local edema, erythema, or ecchymosis. There was no deformity. There was some tenderness around the thoracic muscles, but there was good range of motion, negative straight leg raising, and normal sensorimotor examination. The Veteran was treated with Motrin 800 mg t.i.d. for a few days. The Veteran never experienced any other subsequent episodes of low back pain in service. The VA examiner stated that after going through the Veteran's claims file, there were no other notes after service that would indicate any ongoing problems regarding the low back pain for the numerous years that followed. In the VA examiner's opinion, the Veteran's current low back pain pathology is not related to the one episode of mid back pain of mechanical nature that occurred in January 1988, and is not caused by his service in the U.S. Marine Corps. The VA examiner stated that the Veteran's current condition was due to DDD with radiculopathy, though it was "very hard" for the examiner to make any connection of the Veteran's current pathology of lumbosacral spine to the one episode of mechanical mid back pain of January 1988. III. Legal Criteria - Service Connection In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; (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). The second and third elements may be establishing by showing a continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition 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." Barr, 21 Vet. App. 303 at 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). For some 'chronic diseases,' presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from the 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. 38 C.F.R. § 3.307. The term 'chronic disease,' whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies onto to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider lay assertions of record. A lay person is competent to report on the onset and continuity of his 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 (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). Moreover, the United States Court of Appeals for Veterans Claims (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 v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). IV. Analysis Medical evidence of record shows that the Veteran is currently diagnosed with a low back disorder characterized as degenerative disc disease with L4-5 radiculopathy on the left. As indicated, the Veteran relates his current low back disability to a January 1988 injury which resulted in low back pain. His back was treated at the time. There are no other service complaints, treatment records, and/or diagnoses pertinent to the Veteran's low back during service. There were no problems with the Veteran's back on his enlistment examination, on his reported medical history form, or on his separation examination from the Marine Corps. Thereafter, low back complaints are not shown in the record until more than a decade after discharge in 2002, at which time the Veteran experienced a work-related accident that injured his back. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). In 2004, the Veteran underwent back surgery at Santa Rose Memorial Hospital, and was diagnosed with left L4-5 herniated nucleus pulposus/extrustion. The medical evidence of record conflicts as to whether the Veteran's low back disability is related to service, and it is the Board's responsibility to assess the credibility and weight to be given to the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 36 (1994). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that in his brief, three sentence examination report from September 2004, the Veteran's private examiner, Dr. M.A.B., wrote that the Veteran's back pain "could be for trauma suffered during military service." According to this report, Dr. M.A.B. wrote this statement based on the Veteran's hospital records, his records from Kaiser Permanente Medical Center, and from Santa Rosa Memorial Hospital. Significantly, Dr. M.A.B.'s statement did not unequivocally express an opinion as to whether the Veteran's low back disorder was connected in etiology with the 1988 injury and provided little to no rationale. Thus, the Board finds the September 2004 statement to be of little probative value. The record also contains a May 2006 Addendum to the March 2006 C&P Examination. In the VA examiner's opinion, the Veteran's "current low back pain pathology is not related to that one episode of mid back pain of mechanical nature that happened in January 1988 and is not caused by his service in the United States Marine Corps." In arriving at the opinion that the Veteran's low back disability was not related to his service, the VA examiner noted that the Veteran's subsequent service records do not show any further complaints pertinent to his low back. The May 2006 C&P Addendum VA examiner also noted the fact that the Veteran had been asymptomatic from the time of his service until 2002, 14 years after his in-service back injury, which weighs against the claim. Additionally, in the March 2006 C&P examination, the Veteran stated that after separation from the Marine Corps., he worked in the construction industry for 20 years. The Board finds the May 2006 C&P Addendum opinion to be factually accurate, fully articulated; it also contains sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The statements made by the Veteran's private medical examiner, while competent and credible, are not as probative as the VA examiner. The Court has held in prior cases that medical opinions expressed in speculative language would not establish a plausible claim. 38 C.F.R. § 4.16(a); See Obert v. Brown, 5 Vet. App. 30, 33 (1993); See also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, the Board assigns the May 2006 C&P Addendum VA opinion a higher probative value than the Veteran's private medical examiner. The Board acknowledges that the Veteran is competent to report low back symptoms and observations. However, there is no basis for concluding that a lay person such as the Veteran would be capable of discerning whether a low back disability is related to service, in the absence of specialized training, which in this case the Veteran has not established. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. Thus, the significantly probative May 2006 C&P Addendum VA opinion weighs heavily against the lay statements of etiology in this case, in addition to Dr. M.A.B.'s opinion as mentioned. In his October 2009 Form 9 appeal, the Veteran was concerned that no reference was made to the April 2007 statements of his parents. However, these statements addressed the Veteran's chronic neck injury and although a service connection claim has been initiated, as discussed in the remand portion, the RO is to issue a SOC. There was no mention of low back pain, the issue before the Board at present. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); see also Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As discussed above, the Veteran has been diagnosed with a low back disorder characterized as degenerative disc disease with L4-5 radiculopathy on the left. This disability is not a 'chronic disease' under 38 C.F.R. § 3.309(a). Thus considerations under 38 C.F.R § 3.303(b) are not warranted. Walker, supra. Because the evidence preponderates against the claim of service connection for a low back disability, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a low back disability is denied. REMAND Viewing the Veteran's June 2007 statement in the way that is most favorable to him, the Board construes it as a notice of disagreement (NOD) with the RO's August 2006 rating decision that denied service connection for a neck injury. Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (requiring VA to broadly construe the benefits sought by the Veteran). Although the June 2007 statement clearly provides a basis for construing the claim as either an NOD or a new claim, the former is more favorable to the Veteran. The June 2007 statement satisfies the requirements of a notice of disagreement because it is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2013). Furthermore, because the June 2007 statement was received by the VA within one year of the August 2006 rating decision, it is timely. 38 C.F.R. § 20.302(a) (2013). Because the Veteran has filed a notice of disagreement with regard to that issue, the issuance of a statement of the case is required. Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2013). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a statement of the case regarding the issue of entitlement to service connection for a neck injury. Please advise the Veteran and his representative of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs