Citation Nr: 1334967 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-39 852 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic residuals of a back injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserves from July 1962 to July 1963 with an unverified period of active duty for training (ACDUTRA) from June 1963 to December 1963. He also served in the National Guard from June 1979 to June 1997 and from June 1997 to March 2005. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision. The Board has not only reviewed the Veteran's physical claims file but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran did not sustain a back injury in service, nor is any claimed back disorder causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for the residuals of a back injury are not met. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In a March 2006 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Initial VCAA notice was provided the Veteran prior to the October 2007 rating determination on appeal in a November 2005 letter, and therefore no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The case has been remanded to the Appeals Management Center (AMC) and the RO twice, in November 2010 and April 2013, for further development and record requests, which have been fulfilled through the receipt of the Veteran's leave and earnings statements relevant to his claimed period of ACDUTRA. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board requested the Veteran's leave and earning statements as well as additional service treatment records (STRs) in the April 2013 remand and received a response containing the leave and earning statements requested as well as a note that all STRs from the Veteran's time in the National Guard that were available were already associated with the claims file. In the September 2013 informal hearing presentation (IHP) submitted by the Veteran's representative, it is contended that while evidence to corroborate the Veteran's assertion of a back injury suffered in-service beside his lay statements is unavailable, it should not preclude his claim for service connection from being granted. However, all relevant evidence related to the Veteran's claim and periods of service has already been associated with the claims file and the Veteran has indicated that there is no additional evidence available in statements received in April 2013. Therefore, no additional evidence development is necessary. The Veteran's representative then requested the Veteran be afforded a VA examination and opinion by a specialist regarding his current back condition residuals and the likelihood of its etiology being from an injury consistent with one similar to what he had previously asserted occurred. However, an examination is not required. Because the weight of the evidence demonstrates that the Veteran had no in-service back injury and the weight of the evidence does not indicate that the Veteran's currently diagnosed disabilities may be associated with service, there is no duty to provide a VA medical examination. Absent evidence of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A (a)(2) (West 2002); 38 C.F.R. § 3.159(d). See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's STRs, private treatment records, the Veteran's leave and earning statements from the Defense Finance and Accounting Service (DFAS), and the Veteran's lay statements. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The claimed back condition, included herniated disk and peripheral neuropathy, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21),(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he injured his back when he slipped and fell off of a signal van and landed on his back during a period of ACDUTRA in 1990 at the Redstone Arsenal in Alabama. After a review of all the evidence, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran did not sustain a back injury in service as claimed. A review of the record reveals no complaints or findings of a low back disorder in the STRs or other evidence associated with the claims folder until a private medical letter from Dr. I.M. in August 1999, nine years after the Veteran claims to have injured his back in ACDUTRA, stating the Veteran cannot participate in sit ups during physical training. Importantly as well, this letter also stated that the present condition will persist only for a period of one year. Back pain was again reported during the Veteran's January 2000 physical examination at which time the Veteran was told to not perform sit ups during physical training by the examining officer. While the Veteran claims to have been on ACDUTRA at the time of the claimed back injury in 1990, his status throughout the entire year of 1990 remains unverified, though leave and earning statements from the time do indicate the Veteran received some compensation. However, even conceding that the Veteran was on ACDUTRA during the time period in question, the weight of the evidence does not support his assertion of a back injury suffered at any time in 1990. The Board finds that the weight of the lay and medical evidence is against a finding that the currently diagnosed back disability had its onset in service. The Board does not find the Veteran's assertions about when he suffered his back injury to be credible. The Veteran has not asserted a specific date or period of time in 1990 when the injury occurred. The evidence shows that he did not complain about the injury until 1999, nine years after the alleged incident. The STRs include November 1990 quadrennial examination report and January 1995 periodic retention examination report which both show that he denied a history of recurrent back pain and did not report during either examination that his suffered a back injury. The clinical evaluation of the back on each examination was normal and no back defect was noted on either examination. The STRs which show the Veteran's denials of back problems at his physical examinations in service, is contemporaneous evidence which is more probative than are his assertions voiced years later, beginning in 1999, in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). The post service evidence includes a October 2005 private treatment records in which the Veteran reported a history of low back pain for approximately 10 years, which would indicate an onset of 1995, five years after the alleged in-service injury. At the time of that report, the Veteran indicated that he had chronic back pain for years but denied a history of any injury or trauma. The contemporaneous medical evidence of record, including the reports of medical history provided by the Veteran during service, specifically those for treatment purposes and his periodic examinations and the post service evidence which shows that he did not report a back injury in service, are more probative than the Veteran's current lay statements. The Board finds that, due to inconsistencies in the Veteran's lay statements and discrepancies between the Veteran's statements and the findings in service records, the Veteran's more recent lay statements indicating that he had a back injury inservice are not credible. For the above reasons, the Board finds the weight of the evidence against a findings that the Veteran suffered a back injury in service. As to the Veteran's assertion that he has residuals of a back injury related to his period of active service, while the Veteran is competent to report symptoms that he experiences at any time, and to report a contemporaneous diagnosis made by a medical professional, he is not competent to relate a current back disability to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology of the claimed back disorder. Because the weight of the evidence demonstrates that the Veteran had no in-service back injury and the weight of the evidence does not indicate that the Veteran's currently diagnosed disabilities may be associated with service, there is no duty to provide a VA medical examination. Absent evidence of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A (a)(2) (West 2002); 38 C.F.R. § 3.159(d). See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The Veteran has also been notified of the necessity to provide a medical nexus between any claimed back disorder and service and has not provided such a nexus. Moreover, there have been no post-service treatment records associated with the claims folder which demonstrate any evidence of a relationship between any claimed current back disorder and the Veteran's period of active service, to include ACDUTRA or INACDUTRA. In sum, the preponderance of the evidence weighs against a finding that any claimed residuals of a back injury are related to the Veteran's period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER Service connection for chronic residuals of a back injury is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs