Citation Nr: 1334314	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-38 824	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a hip disorder.

2.  Entitlement to service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel



INTRODUCTION

The Veteran had active duty military service from May to August 1976 and from August 1978 to April 1980, including additional service in the National Guard.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hip and low back disorders.

These claims were previously before the Board in June 2011, when they were remanded to the RO via the Appeals Management Center (AMC) for further development and consideration - including especially obtaining a medical nexus opinion concerning the likelihood these claimed disabilities are related or attributable to the Veteran's service.  Following completion of that additional development, in August 2011 the AMC issued a supplemental statement of the case (SSOC) continuing to deny these claims, so they are again before the Board.


FINDING OF FACT

The preponderance of the evidence weighs against finding that the Veteran's hip and low back disorders either incepted or were aggravated by his active military service or are otherwise related or attributable to his service.


CONCLUSION OF LAW

His hip and low back disorders are not the result of disease or injury incurred in or aggravated by his active military service and may not be presumed to be.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA) provides that VA has duties 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Ideally, this notice should be provided prior to an initial decision on the claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a Statement of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because its intended purpose is still served inasmuch as the Veteran is still provided opportunity to participate meaningfully in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five elements:  (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.  See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012).  So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements.  See Dingess, at 486.

But a VCAA notice error is not presumptively prejudicial, rather, must be determined on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, a VCAA notice letter sent in July 2009 informed the Veteran as to each element of notice as set forth in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information, and that VA would undertake reasonable measures to assist him in obtaining additional VA medical records, private treatment records and other Federal records.  The notice also provided information on the "downstream" disability rating and effective date elements of his claims in the eventuality service connection is granted.  As well, the notice was sent prior to the initial adjudication of his claims, so in the preferred sequence.  The Board therefore finds that he has received all required notice concerning his claims.

The VCAA further provides that VA has a duty to assist him in the development of these claims.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).  This duty includes assistance in obtaining relevant records, including service treatment records (STRs) and other pertinent medical records, including regarding relevant evaluation and treatment since service, whether from VA or privately, as well as the provision of an examination when necessary to make a decision on the claim.  Id.  Conversely, there is no duty to assist if there is no reasonable possibility that assistance could result in substantiation of the claim.

The duty to assist in the development of these claims has been satisfied.  The Veteran's post-service VA treatment records have been obtained and associated with the claims file, as have his available STRs.  The majority of his STRs were not obtained, and are presumed lost.  The law provides that when, through no fault of the Veteran, records under the control of the Government are unavailable, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  VA must advise the Veteran of his right to support his claim and try and compensate for this missing evidence by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence such as "buddy" affidavits or statements.  Id.; see also 38 C.F.R. § 3.159(e).  See, too, Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).

Still, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim.  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

He was appropriately notified of the unavailability of his STRs in the September 2009 rating decision, and via a letter subsequently sent in August 2010.  38 C.F.R. § 3.159(e)(1).  The efforts to locate the records were detailed, and he was asked to submit any copies that he had in his personal possession.  He previously had been advised of the types of evidence that he could submit in lieu of his STRs in the initial July 2009 VCAA letter.  In August 2010, he reported that he did not have any STRs, but he did provide alternative evidence in the form of "buddy" statements in August 2009.  See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them).

Similarly, efforts were undertaken to obtain his records from the Social Security Administration (SSA).  In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining relevant SSA records.  The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them.  Relevant records were defined under 38 U.S.C. § 5103A as those relating to the injury for which the claimant is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim.  Golz, 590 F.3d at 1321.  Here, the Veteran was notified in March 2010 that these records could not be located, and resultantly asked to provide any copies that he had.  He did not respond to that request.

He also was provided a VA compensation examination in July 2011 for medical nexus opinions regarding the etiologies of his hip and low back disorders, and particularly concerning the relationship, if any, between a fall alleged to have occurred during active duty in 1979 and these currently claimed disabilities.  The report of this examination contains the necessary opinion on this determinative issue of causation and most importantly includes explanatory rationale discussing the underlying bases.  So the Board finds the examination and opinion adequately informative to decide these claims.  The opinion is based on a comprehensive examination of the Veteran, which included consideration of his statements and medical records regarding the history of his disorders, and are supported with explanatory rationale.  The opinion therefore has the necessary factual predicate and underlying medical basis, which is where most of the probative value of a medical opinion is derived, not just from mere review of the claims file and the conclusions ultimately reached.  See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
For these reasons, the Board is satisfied the AMC complied with the Board's June 2011 remand directives, which directed that a medical nexus opinion be obtained for each disability.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with, even if not exact or total compliance per se), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In August 2011, the Veteran alleged that the medical opinion in regards to his low back disorder was inadequate.  He argued that his National Guard records had not been reviewed, and that the examiner did not consider the general effects of repetitive, heavy lifting and rigorous training, which were requirements in service.  In regards to his National Guard records, all of his STRs were requested.  The only records located were the May 1981 National Guard entrance examination, along with dental records that are not relevant to the inquiry.  As discussed above, he was notified that these records could not be located and did not submit additional evidence.  He has not alleged a specific injury or incident aside from the fall in 1979 that has been the basis of his claims since his initial application, and did not provide any indication of what his National Guard records would reveal.  In regards to repetitive, heavy lifting and rigorous training, the examiner presumably is aware of the rigors of military training and need not comment on every potentially favorable piece of evidence, only instead just be certain to consider it in his or her deliberations.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  But even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

As the Veteran's recent statement does not provide any new and material information for the examiner to comment upon, and his records from the National Guard are unobtainable and cannot be reviewed, the Board does not find it necessary to remand these claims again for additional medical comment in the way of a supplemental opinion.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran, and the Court has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Livesay v. Principi, 15 Vet. App. 165, 178   (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) (like Soyini, observing circumstances when a remand would not result in any significant benefit to the Veteran).


The Veteran has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way.  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate these claims.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  

Standard of Review

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See Gonzales, 218 F.3d at 1380-81.  The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claims.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claims or is in relative equipoise, meaning about evenly balanced for and against them, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claims, in which case they are denied.  Id.

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence also is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  As the Federal Circuit Court has observed, lay evidence must "demonstrate some competence."  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).


After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  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).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, 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 Federal Circuit Court, 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) (West 2002).  Moreover, the Court similarly 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).

Relevant Statutes, Regulations and Cases

Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).

Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

A disease or disability is considered to have been "aggravated" by service when it has increased in severity during service beyond its normal progression.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

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

Certain specific diseases listed in 38 C.F.R. § 3.309(a) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Also, if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating:  (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms.  The Federal Circuit Court, however, rather recently held that this notion of continuity of symptomatology only can be alternatively used to establish this required linkage between the current condition and service if the condition being claimed is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Veteran has been diagnosed with arthritis of both hips and the lumbar spine.  Arthritis is recognized as chronic under § 3..309(a), so the claims will be adjudicated with this in mind.

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

So service connection may be established either by showing direct or secondary service incurrence or aggravation or by using applicable presumptions, if they are available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).


The Veteran reported he was in "excellent" health at a May 1981 physical examination.  He did not complain of a history of back or joint pain, or of arthritis.  During the examination, his back and lower extremities were clinically evaluated as "normal," his physical category was assessed an "A," and his physical profile was assessed as a "1" in each category.

An August 2009 statement from his treating physician notes the Veteran has chronic osteoarthritis in the hip and lower spine.

In an August 2009 statement, the Veteran asserted he had slipped on a patch of ice while running, causing him to fall and hurt his hip and back.  He said his sergeant had told him to get up and keep up with the formation.  Along with this statement, the Veteran enclosed two "buddy" statements.  O.E.H. said that he had witnessed the Veteran's fall in 1979, and that the Veteran could not get up for a few minutes.  He said their sergeant told the Veteran that he was not hurt, to get up, and to continue running with the formation.  D.S. said the Veteran had slipped and fallen on the ice, and that their sergeant would not allow him to go to sick call for any necessary evaluation and treatment.

In a September 2009 statement, the Veteran reasserted that he fell during a run, injuring his hip and lower back.  But he said he was escorted to sick call and given medication for the pain.  He said that his hip and lower back continue to be painful to the present day.

In a September 2010 statement, he asserted that he fell and injured his back and hip.  He indicated that he went to sick call for treatment, and that he was placed on guard duty because the injury prevented him from performing his normal occupation.

At the conclusion of the July 2011 VA compensation examination, the diagnoses were status post total hip replacement of the left hip with residual symptoms and degenerative disk disease in the lumbar spine.  The Veteran explained to the examiner that he had injured his lower back and left hip by falling during physical training.  He said that he was seen at the clinic and given pain pills, but not X-rayed.  He indicated that his lower back and left hip continued to be painful after the fall, and have continued to the present.  The examiner noted the Veteran's arthritis, of both the lumbar spine and left hip, was first diagnosed in 2006.  He noted that there was no evidence of a fall in 1979, due to the missing records, but that two "buddy" statements confirmed the fall.  He commented however that the May 1981 physical examination (so after the claimed injury) did not mention hip or back complaints.  He determined it was less likely than not the Veteran's arthritis of the hip and lower back were related to the fall in service.  He explained that, while there is no medical documentation of the fall, he did not think that the fall was serious because no X-rays were taken and because the Veteran was given something for pain and released.  The examiner added that that such a single injury could not have caused arthritis in the hip and lumbar spine, seeing as though was not found until over 25 years after separation from service.

In an August 2011 statement, the Veteran asserted that he was a mortar man while in service, and that loading and unloading the mortar contributed to his lower back condition.  He maintained that carrying heavy combat loads during training also had contributed to his back condition.  He reasserted that he fell down during training in 1979.

November 2011 X-rays showed minimal degenerative changes in the right hip, and moderate-to-severe degenerative osteoarthritic changes in the lumbar spine.

Based on this collective body of evidence, the Board finds that the preponderance of this evidence is against finding that the Veteran's arthritis of the hip and low back is related to, the result of, or aggravated by his service.

He and his friends, O.E.H. and D.S., are competent to attest to him falling during a training run in 1979, as this was a personal experience and capable of observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  See also Washington v. Nicholson, 19 Vet. App. 363 (2005) (indicating a Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent).

The Board also finds it credible that the Veteran fell, as this assertion has been consistent throughout the pendency of these claims, and there is no evidence that suggests he did not fall or that he was injured in a different manner.  Rucker v. Brown, 10 Vet. App. 67 (1997) (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the Veteran).

But the various statements regarding whether the Veteran required or received treatment following the fall are inconsistent, so tend to diminish or undermine his credibility, at least as concerning this equally important point.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).  Notably, in August 2009, he and his "buddy" statement compatriots set forth the proposition that he fell and was not permitted to seek medical attention, owing to his drill sergeant's outright refusal, although none of their statements clearly indicated whether the Veteran was able to go to the clinic sometime later, after the run was completed.  Yet, in his September 2009 Notice of Disagreement (NOD) - so, the following month - the Veteran asserted that he was instead escorted to the clinic and given medication for the pain.  He maintained he was able to seek treatment in a September 2010 statement and during his July 2011 VA compensation examination.  He was not informed of his missing STRs until the September 2009 rating decision was issued, and he did not allege having received treatment for the fall in any way until after learning that his records would not be available to review.  Because his recollection of the events apparently changed after August 2009 upon learning of this, and since it is inconsistent with the statements submitted by O.E.H. and D.S., the Board does not find it credible that he sought medical treatment after having that fall in 1979.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  The evidence regarding the type of treatment he supposedly received after the fall, therefore, is not probative.

His assertions that his hip and lower back have been painful continuously since that fall during service also are not probative.  He is competent to attest to pain.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board does not find his assertions of chronic pain dating back to that injury in service to be credible, however.  In May 1981, so after that injury, he was examined and, yet, made no mention of a history of back or hip pain, or any joint pain.  Indeed, he indicated that he was, at that time, in "excellent" health.  His spine and lower extremities were clinically evaluated as normal and he was assigned a "1" on his PULHES profile.  Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect that is below the level of medical fitness for retention in the military service)).  The Board is permitted to place higher probative value on contemporaneous records than on history as currently reported by the Veteran, long after the fact.  Curry v. Brown, 7 Vet. App. 59, 68 (1994); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).  Additionally, he did not seek treatment for his pain until 2006, over 25 years following separation from service.  The amount of time that elapsed between the injury in service and the first occasion treatment was sought is an additional factor weighing against the credibility of these statements.  The Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354   (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder).


In Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc), the Federal Circuit Court cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  There was a similar holding in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not necessarily treatment for them.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  But the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).


The Veteran's statements that the fall caused his arthritis also are not probative.  He has not been shown to have the necessary medical training or expertise to render a competent opinion on the etiology of his arthritis, which was not diagnosed until over 25 years following service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins of arthritis fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Arthritis must be objectively confirmed by X-ray.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003.  This necessarily means it is beyond the competence of a lay person.

The July 2011 VA compensation examiner considered the assertions that have been made of a relationship or correlation between the arthritis now affecting the Veteran's hip and low back (lumbar spine) and the injury he sustained during his service, and rejected them, finding that a single fall such as the type alleged could not have caused arthritis of the lumbar spine and the hip.  The VA examiner therefore acknowledged such a possible injury, so accepted it occurred, but nonetheless concluded it could not account for the arthritis the Veteran now has given the described severity of that trauma.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).

The most probative evidence, which is also uncontroverted, is this VA examiner's July 2011 opinion against this purported cause-and-effect relationship.  This VA examiner placed some reliance on the Veteran's description of the treatment he had supposedly received in the immediate aftermath of the fall (so, by doing that, essentially accepted that, too, had occurred, despite the Veteran's inconsistent statements regarding that), when nonetheless ultimately determining that the injury sustained was not considered serious if considering the type of treatment prescribed.  

So even considering the Veteran's claims in this most favorable light, that is, accepting there was treatment after the injury, the specific modality of treatment was partly the reason the VA compensation examiner did not believe that injury could have resulted in the later development of arthritis.  Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006). (both indicating the Board cannot categorically reject a lay history recounted by a Veteran, and in turn relied on by an examiner, unless the Board determines this lay reported history is not credible).

But that aside, the July 2011 VA examiner also based his opinion on the May 1981 physical examination, which did not find any chronic back or hip conditions or arthritis even despite the earlier injury in 1979.  The VA examiner's reliance on this report of history and examination is not misplaced, as those records were created in order to ascertain the Veteran's then-state of physical fitness, and are comparable to statements of diagnosis and treatment.  These records are therefore highly probative, both in regard to the Veteran's subjective reports and their resulting objective findings.  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 if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  The examiner opined that a fall as described by the Veteran would not have caused arthritis in the two distinct areas.

There is no other evidence in the file that probatively outweighs the VA examiner's unfavorable opinion.  Service connection cannot be established under the three-part test for direct-incurrence as set forth in Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

As already alluded to, however, the Veteran's arthritis is a "chronic disease" according to 38 C.F.R. § 3.309(a).  Therefore, the Board additionally has considered whether service connection is established by way of the presumptions set forth in 38 C.F.R. §§ 3.307(a), 3.309(a) and 3.303(b).  Under section 3.307(a), a chronic disability is presumed to be service connected if it manifests to a compensable degree within the first year following service.  The Veteran separated from service in 1980, and the competent and credible evidence does not show arthritis in any joint until 2006, well more than one year following his separation from service.  Under section 3.303(b), if a chronic condition was shown in service and then subsequently manifested after separation from service, it will be presumed to be service connected unless clearly attributable to other ("intercurrent") causes.  But the evidence does not show and the Veteran does not allege that he was diagnosed with arthritis during his service, thus the Board finds this disease was not initially "noted" during his service.

Regarding his service in the National Guard, the presumption of aggravation under 38 U.S.C.A. § 1153 does not apply to claims based on a period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA).  Smith v. Shinseki, 24 Vet. App. 40, 48 (2010).  Therefore, unless "Veteran" status already has been established based upon a prior period of service, such as the prior period of active duty (AD) in this particular instance, a claimant must establish "Veteran" status for benefits based on aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA in the National Guard.  See Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010).  To establish "Veteran" status, a claimant has the burden of showing both aggravation elements.  The claimant, rather than VA, bears the burden of proof in establishing both that (1) "the preexisting disability worsened in service" and (2) "that such worsening was beyond the natural progression of the disease."  Id., at 174.  A claimant is entitled to the benefit-of-the-doubt standard when the question of "Veteran" status arises.  Id., at 175.


The Veteran's service involved AD and presumably also ACDUTRA and INACDTRA.  Active military, naval, or air service includes any period of AD or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury, but not disease, incurred in or aggravated in the line of duty.  38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA, although in more recent times it also has come to include AD.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316  , 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c) . Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

National Guard duty, however, is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state.  "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor."  Allen v. Nicholson, 21 Vet. App. 54, 57 (2007).  "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401  , or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505.  Id.

So to the extent the Appellant is alleging that his disability is a result of injury or disease incurred or aggravated during his time in the National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a).  Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., his prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for the Appellant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, though not disease, incurred or aggravated during his INACDUTRA.  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478   (1991).

And as also already explained, consider additionally that there is no presumption of soundness or aggravation for ACDUTRA and INACDUTRA service, only for AD, nor is there any presumption normally available for conditions considered chronic, per se, which manifest to the required compensable degree within a specified amount of time after service, usually one year.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).

There has not been any attribution of the arthritis affecting the Veteran's hip and low back to his National Guard service, either in terms of this disease initially manifesting during that service or otherwise being the result of it.

Therefore, his claims of entitlement to service connection for hip and low back disorders, which have both been diagnosed as involving arthritis, cannot be granted on the basis of its subsequent manifestation or with the benefit of the chronicity presumptions, albeit if only concerning his AD service and not any additional service on ACDUTRA or INACDUTRA.

In sum, the preponderance of the evidence is against his claims.  It is undisputed that he has arthritis of the hip and lumbar spine; however, it has not been shown to have initially manifested during his military service, within one year after the conclusion of his active duty service, or to otherwise be related to his service in any way.  Accordingly, these claims of entitlement to service connection for these disabilities must be denied since the preponderance of the evidence in against these claims, in turn meaning the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

The claim of entitlement to service connection for a hip disorder is denied.

The claim of entitlement to service connection for a low back disorder also is denied.



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs