Citation Nr: 1334785 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-19 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a back condition. 2. Entitlement to service connection for right leg sciatica. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty for training in the Army Reserves from April 1981 to July 1981 and on active duty in the Army from October 1981 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in June 2013. A transcript of the hearing is in the Veteran's electronic file (Virtual VA). According to Virtual VA, after the RO issued its most recent supplemental statement of the case (SSOC), it associated in excess of 500 pages of medical documents with the Veteran's record. Most of these documents are duplicates of records already in the claims file. The remainder refer to medical conditions not at issue in this appeal or do not pertain to the question of whether the conditions at issue in this appeal are related to the Veteran's active service. A remand for the RO's initial consideration of this evidence is thus unnecessary. FINDINGS OF FACT 1. A back condition did not have its onset during active service. 2. Right leg sciatica did not have its onset during active service. CONCLUSIONS OF LAW 1. A back condition, including arthritis of the thoracolumbar spine, was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. Right leg sciatica was not incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or SSOC. In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample 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, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO provided the Veteran VCAA notice on her claims by way of letter dated in September 2008. This letter is timely having been sent before, rather than after, the RO's initial adjudication of these claims. The content of this letter reflects compliance with all pertinent statutory and regulatory provisions and case law. Therein the RO acknowledged the Veteran's claims, notified her of the evidence needed to substantiate them, identified the type of evidence that would best do so, notified her of VA's duty to assist and indicated it was developing her claims pursuant to this duty. The RO also provided her all necessary information on disability ratings and effective dates in the event service connection is granted. The RO identified the evidence it had requested and received in support of the Veteran's claims. The RO identified the evidence that VA is responsible for obtaining and indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided she identified the sources of it. The RO also noted that, ultimately, it was her responsibility to ensure VA's receipt of all pertinent evidence. The Board provided the Veteran further notice during her June 2013 hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), a Veterans Law Judge (VLJ) who chairs a hearing must satisfy two duties: (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. The VLJ in this case satisfied both duties. She first determined that the Veteran was claiming entitlement to the benefit being sought on a direct basis, as related to an in-service fall. Transcript at 3. She questioned the Veteran regarding the nature of the fall, why she thinks it caused the disabilities at issue in this appeal, and whether she has been having back and leg symptoms since the fall. Transcript at 4-11. She specifically asked whether any doctor had related the disabilities to the in-service fall. Transcript at 11. She discussed all outstanding evidence and inquired as to whether such evidence was available to secure. Transcript at 10-11. The Veteran has received all essential notice, 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. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither she nor her representative asserts that VA failed to comply with VCAA's notice provisions or the requirements of Bryant. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him or her a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In this case, the RO obtained all available treatment records, afforded the Veteran a VA examination, and obtained an opinion discussing the etiology of the Veteran's back and right leg disabilities. 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 that 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, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, neither the Veteran nor her representative asserts that there are any outstanding records that need to be obtained in support of these claims or that the report of examination is inadequate to decide these claims. As discussed in more detail below, the February 2013 VA examination was adequate. Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate her claims. See 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) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis The Veteran seeks grants of service connection for a back disorder and right leg sciatica pain on the basis that these conditions developed secondary to a fall she took in service, while walking across a parking lot covered in ice. According to written statements she submitted in August 2008 and May 2010, initially after the fall, she reported to sick call for a resulting wrist injury, but later, she began to notice pain in her back, which radiated to her right leg. She believes the back and right leg conditions are associated with the fall because it was severe enough to break her wrist and she has never worked hard labor (had sedentary jobs only), fallen again or been involved in an automobile accident. According to a written statement the Veteran submitted in May 2013, one does not simply get a chronic lumbar strain without having suffered some traumatic incident and the only incident the Veteran ever experienced is the in-service fall. According to her June 2013 testimony, the radiating back condition is related to the fall as she has had back and right leg symptoms and continuity of treatment since then and now a back diagnosis, which in-service doctors might have missed. Allegedly the fall involved her hitting her tailbone on the ice and then sliding backward every time she tried to get up, resulting in 4 or 5 additional falls. Once she finally got up, she sought treatment for her right wrist, initially diagnosed as a strain, and told the doctors that her backside was hurting. One recommended Ibuprofen and ice. Eventually, she began to feel stiff all over, including in her back, noticed bruises on her backside, and noticed pain shooting down her legs. The Veteran contends that eight weeks later, a doctor indicated that her wrist was broken. During visits for this problem, she again mentioned that her back was hurting and her legs felt strange, but the doctor was focused on her arm and told her to use Ibuprofen and ice for the back. The Veteran asserts that, in the 1980s, women in the military were discouraged from complaining and were expected to endure pain. She claims that, following discharge in 1984, she began seeing a chiropractor for her back and, since then, has received regular back treatment. Allegedly, a doctor first diagnosed a back condition in the late 1990s. She asserts that records of the earlier back treatment are not available partly because she cannot remember the names of the providers. The Veteran's representative points out that a fall on ice, as described, would cause a back strain, which in essence is the back out of position, and sciatica and that literature indicates that chronic lumbar strain results from traumatic injury. He further points out that, sadly, military personnel did not take the Veteran's back complaints seriously such that we do not now know the nature of her in-service back injury. He contends that, at that time, the Veteran might have had a herniated or ruptured disk. The Board acknowledges the Veteran's statements of record, both written and oral, but considering them in conjunction with all of the medical information of record, finds that the preponderance of the evidence is against grants of service connection for a back condition and right leg sciatica. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (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). 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 or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Certain diseases are considered chronic, per se, such as arthritis. 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.309(a) (2012). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the 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 diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a chronic disease is at issue, such as arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for chronic disease such as arthritis if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In this case, post-service medical documents, including VA and private treatment records dated since 2003 and a report of VA examination conducted in February 2013, establish that the Veteran currently has a back condition, variously diagnosed including as thoracic kyphosis, a disc protrusion, arthritis, retrolesthesis, scoliosis, and spondylosis. The Veteran has also been diagnosed as having right leg sciatica and neuropathy. The question thus becomes whether these disabilities were incurred or aggravated in the Veteran's active service and whether the arthritis manifested to a compensable degree within a year of the Veteran's discharge from service. As alleged, during service in November 1981, the Veteran fell, injuring her right wrist. She presented for treatment, explaining that she had fallen on the snow with her outstretched right hand under her body. She did not mention her back or legs or any other body part. An examiner noted a swollen right hand, a little deformity and discoloration on the wrist, but did not refer to the Veteran's back or legs. According to the service treatment records, at no time in service, including during all visits associated with the fall and resulting right hand injury, did the Veteran report or receive treatment for back or right leg complaints. In addition, the Veteran received treatment during service on numerous occasions for other disabilities, including gynecological problems and respiratory problems. During a VA examination conducted in July 1984, approximately three months after discharge, the Veteran first reported back pain. She made no mention of such pain initially manifesting following the in-service fall. X-rays revealed mild to moderate scoliosis of the thoracolumbar spine. She was diagnosed as having thoracolumbar scoliosis and strain. According to available medical records, the Veteran next reported back pain in 2000. In 2002, she indicated that the back pain began after a 40 mile drive. She denied any trauma to the back. In March 2003, she first reported right leg pain in conjunction with back pain. A physician noted that the etiology of the back and right leg pain was unclear, but that it was more likely to be a muscular type injury. In August 2003, however, magnetic resonance imaging (MRI) revealed small disc bulges in the lumbar spine. In 2006, during an evaluation of her sciatic pain, she reported that she had not had pain in these areas prior to the "accident". The accident to which she is referring is unclear (earlier she mentions stubbing her toe at work, which reportedly brought on severe pain and symptoms). Since 2006, the Veteran has continued to receive treatment for back and right leg pain, now attributed to the previous noted diagnoses. One medical professional, a VA examiner, has addressed the etiology of the back and right leg disabilities. In February 2013, based upon a VA back and right leg examination, that examiner noted the Veteran's reported history of having back pain beginning after service, in the late 1980s, and then later developing bilateral leg numbness. The examiner acknowledged the Veteran's contention that her back and right leg conditions are due to the previously described in-service fall. The examiner diagnosed chronic lumbar strain, arthritis and retrolesthesis of the lumbar spine, bilateral sciatica and neuropathy in the lower extremities and ruled out a relationship between these conditions and the Veteran's active service. He based this opinion on two findings: (1) these conditions were not seen in service; and (2) the Veteran did not develop back or leg symptoms until years after being out of service. With regard to the back condition, the VA examiner's opinion is based on one accurate and one inaccurate factual premise, the latter being that there were no back symptoms seen until years after service. As previously indicated, just three months after service, the Veteran reported back pain, a report that prompted VA to x-ray the Veteran's back. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). However, at the time of her VA examination in 2013 she reported back pain beginning in the late 1980s, years after service. Regardless, the Board still finds the VA examiner's opinion probative based on the accurate factual premise, which is substantiated by the record (i.e., the Veteran was not seen for her back in service). The Veteran has stated that she had back symptoms during service. During visits for her wrist, she stated that her back was hurting and her legs felt strange, but the doctor was focused on her arm and told her to use Ibuprofen and ice for the back. The Veteran also asserts that, in the 1980s, women in the military were discouraged from complaining and were expected to endure pain. The Veteran is competent to report that she felt certain lay-observable symptoms, including pain, during and since service. However, the Board her statements about injuring her back and experiencing back and right leg symptoms during service not to be credible. The service treatment records indicate that the Veteran fell on her outstretched right hand with her hand under her body. It is unclear based on this description whether she fell forward landing on her hand, or backward landing on her tailbone as she claims. The service treatment records reveal no complaints or findings pertaining to her back or right leg. While she stated that women in the military were discouraged from complaining and were expected to endure pain, her service treatment records show that she sought treatment on dozens of occasions for her wrist, gynecological problems, and respiratory problems. It strains credibility that she would have been experiencing back or right leg symptoms and not complained of them or sought treatment for them at any time, given her extensive service treatment records. Also, given the fact that she sought treatment for her right wrist on numerous occasions and that this was documented by examiners, it strains credibility that the examiners would have failed to document repeated back and right leg complaints, had she made them. The Board also notes that the Veteran has made inconsistent statements about when her back pain began. For example, during her VA examination in February 2013, she stated that her back pain began after her separation from service; whereas, during her hearing before the Board in June 2013 she stated that her back pain started during service. Of note, even though the Veteran complained of back pain on VA examination in July 1984, just three months after her separation from service, she did not report at that time that it was in any way related to her service or that is started during service. And even though the Veteran received treatment for multiple medical conditions over the years after the 1984 VA examination, including the wrist fracture associated with the in-service fall, she never mentioned a back or right leg injury having occurred during the fall and, in fact, denied back trauma. For all these reasons, the Board finds the Veteran's statements about injuring her back and experiencing back and right leg symptoms during service not to be credible. Therefore, even though the VA examiner based his conclusion, in part, on the premise that the Veteran's low back pain started in the late 1980s instead of just a few months after service as documented by the record, his opinion is still found to be probative in light of the lack of any back injury, complaints, or findings during service. The Veteran does not challenge the adequacy of the February 2013 opinion and has not submitted an opinion refuting that of the VA examiner. Her assertions thus represent the only evidence of record suggesting that her back disability, however diagnosed, and right leg sciatica are related to her active service, including the documented in-service fall. Because she has no special training or expertise in medicine, she is not competent to relate etiologically any back or right leg disability to her active service. See Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 303; Davidson v. Shinseki, 581 F.3d at 1313. The Board also finds the 2013 VA examiner's opinion to be more probative in this regard, given his medical expertise. Inasmuch as there is no competent and credible evidence attributing the Veteran's back and right leg disabilities to her active service, including the in-service fall, or establishing that arthritis of the spine manifested to a compensable degree within a year of her discharge from service, the Board concludes that such disabilities were not incurred in active service and may not be presumed to have been so incurred. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With regard to each of these particular claims, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is thus not applicable. To the extent that the Veteran claims service connection for right leg sciatica as secondary to a low back disorder, this claim is denied as a matter of law as the Veteran is not service connected for any back disorder. See 38 C.F.R. § 3.310. ORDER Service connection for a back condition is denied. Service connection for right leg sciatica is denied. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs