Citation Nr: 1334455 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-14 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from August 1969 to July 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a low back disability. The Veteran testified at a hearing in October 2012 before the undersigned. A copy of the transcript has been associated with the claims file. In March 2013, and again in June 2013, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT The Veteran's low back disability is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in September 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. As noted above, the Veteran testified at a Board hearing in October 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above regulation. These duties consist of (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 hearings, the VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Notably, the case was previously remanded in order to obtain an adequate VA opinion. Here, the Veteran's service treatment records, private treatment records, VA treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran identified additional private treatment records from Kucharik Chiropractic which have not been obtained. However, VA sent multiple requests for these records to this provider, but received no response, and the Veteran testified at his hearing that the records were no longer available. Therefore, the Board will proceed. The Veteran was also afforded a VA examination, and a supplemental opinion was also obtained. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination and opinion obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and address the etiology of the Veteran's low back disability. VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board's remand directives have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). For a showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). 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 if the evidence 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 determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 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, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard 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) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical 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 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"). B. Evidence Service treatment records are negative for any complaints, treatment or diagnoses related to the low back. The Veteran underwent an enlistment examination in April 1969, and a separation examination in April 1971. No relevant abnormalities were noted. The Veteran filed for VA disability benefits in 1971 after his discharge from service. However, he did not file a claim related to the low back, and a VA examination in September 1971 noted no complaints or findings related to the low back. The Veteran has reported that he sustained a post-service motor vehicle accident in 1973, and received treatment for a back injury. VA treatment records dated June 2008 show the Veteran reported injuring his back after jumping out of a plane. X-rays revealed mild to moderate spondylosis and mild to moderate levoscoliosis. Additional records dated September 2008 through April 2009 show ongoing complaints of back pain. A January 2009 letter from Dr. J.S. stated that he had treated the Veteran for low back pain on multiple occasions since about 1989. His diagnoses were lumbar segmental dysfunction, lumbar disc syndrome, and lumbar myofascitis. In an April 2009 statement, the Veteran reported that he had experienced back pain for 4 years. He stated that he hurt his back in service after jumping out of a deuce-and-a-half truck. He sought treatment and was told there was no problem, but that his report would be noted. He concluded by stating that the damage done to his back in service was "coming out" 35 years later. In an August 2009 statement, the Veteran contended that back injuries he sustained in the 2000's were likely caused by the previous injury he sustained in service. A February 2010 statement from the Veteran's ex-wife corroborated his account of a back injury in service related to jumping out of a truck in either 1970 or 1971. A January 2010 opinion from Dr. J.S. stated that the Veteran reported his back problems were initiated when he jumped off a truck during service in 1970 or 1971. Based on the Veteran's description of the incident, Dr. J.S. stated that there was a strong probability that this incident initiated the back problems that currently gave him trouble. He further noted that any injury of the back hastened degenerative change, and over time this change can become fairly significant. At his October 2012 hearing, the Veteran testified that he injured his back during service after jumping off of a truck at a height of about 15 feet. When he landed, he felt soreness in his back but did not think much of it. However, his back continued to bother him and he went to sick call a few days later. He was told that he did not have any problem with his back, but was given some medicine to rub on it. He continued to feel stiffness and soreness in his back, but it eventually went away. He denied any back problems prior to service. After service, he was involved in a car accident in 1973. He sought treatment for his back after that. He felt that this accident aggravated his initial injury. A VA examination was conducted in April 2013, and a supplemental opinion (without examination) was obtained in July 2013. The Veteran reported injuring his back during service, but denied any interval injury. Following a review of the claims file and a physical examination, the VA examiner concluded that the Veteran's currently diagnosed degenerative disc disease did not start in service, was not due to a jump off of a truck, did not start within one year of service, and were not caused or aggravated by a post-service motor vehicle accident. Rather, the Veteran had age-appropriate lumbar degenerative disc disease. C. Analysis Based on the evidence, the Board finds that service connection for a low back disability is not warranted. The Veteran has a currently diagnosed low back condition, and as noted in the prior remands, the Board finds his statements regarding a back injury in service to be credible. However, the overall weight of the evidence is against finding a relationship or nexus between his current condition and service. The evidence addressing this issue includes medical opinions. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. While Dr. J.S. stated that the Veteran's current complaints were related to his injury in service, the Board previously noted that his opinion was not adequate, as it does not address the Veteran's post-service motor vehicle accident in 1973. As a result, his opinion is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). In contrast, the VA examiner not only reviewed the claims file, but considered the Veteran's in-service injury, post-service accident, and subsequent medical history in determining that he had age-appropriate degenerative disc disease that was not related to service. For these reasons, the Board finds the opinion of the VA examiner to be more probative. The Board has also considered the Veteran's own statements made in support of his claim. However, he has not demonstrated any specialized knowledge or expertise to indicate that he can render a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of his low back disability falls 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). Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, there are no documented complaints of low back symptoms in service. Moreover, the Veteran filed a claim for VA disability benefits shortly after service, but did not report a low back condition. No low back complaints or findings were noted in the September 1971 VA examination. These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less probative than the negative contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. As such, the Board finds that the credible evidence is against the claim based on continuity of symptomatology. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The preponderance of the evidence is against finding that the Veteran has a low back disability etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a low back disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs