Citation Nr: 1335006 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-31 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1976 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision on behalf of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). FINDING OF FACT The Veteran is shown to have incurred an acute low back strain during active service; a chronic low back disability was not manifest during active service, arthritis was not manifest within the first post-service year, and a present low back disability is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW A low back disorder not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants 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) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in October 2007. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claim. There is no evidence of any additional existing pertinent records. Although at his hearing in March 2013 the Veteran stated he had received private medical treatment in approximately 1979, he has not provided copies of these treatment records nor has he provided sufficient information for VA to assist him in obtaining copies of any such records. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 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. When 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) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). In this case, the Veteran contends that he has a present low back disorder as a result of an injury during active service. In statements and testimony provided in support of his claim he reported having had continuous back problems since he injured his back in service. Service treatment records dated in July 1977 noted he injured his back lifting deck plates. A diagnosis of low back strain was provided. The treatment plan included a five day course of pain relief medication, no duty for one day, and light duty for five days. Subsequent records are negative for additional treatment for a back disorder. A November 1977 medical board report noted the Veteran had been treated for diabetic ketoacidosis in September 1977, but that a physical examination was otherwise within normal limits. VA examination in April 1981 noted the Veteran was active and had no restriction of any activity. Private treatment records dated in February 1994 noted the Veteran complained of severe low back pain after picking up a bowling ball. A diagnosis of acute L4, L5 lumbosacral radiculitis was provided. Subsequent records indicate further spinal treatment without opinion as to etiology. VA treatment records dated in May 2004 noted the Veteran reported having fallen approximately 10 feet and landing on concrete. The diagnoses included comminuted fracture of the right calcaneus, fracture of the left calcaneus, and avulsion fracture of the left lateral malleolus. VA examination in January 2008 included a diagnosis of degenerative joint disease of the lumbar spine. It was noted that the Veteran's claim file was not available for review, but that he reported having injured his back in service when he lifted something heavy and having had chronic back pain since then. The examiner noted that X-ray studies revealed degenerative joint disease from L4 to S1, but found that it was not likely due to a lifting injury in service. A July 2011 VA medical opinion based upon a review of the claims file, the January 2008 VA examination report, and X-ray studies dated in January 2008 found the Veteran's degenerative joint disease of the lumbar spine was less likely caused by or related to the low back pain he experienced during active service. It was the examiner's opinion that the injury in service was an acute event and that his degenerative joint disease was a separate condition rather than related to the strain in service. Based upon the evidence of record, the Board finds that the Veteran incurred an acute low back strain during active service, that a chronic low back disability was not manifest during active service, that arthritis was not manifest within the first post-service year, and that a present low back disability is not shown to have developed as a result of an established event, injury, or disease during active service. Although the Veteran reported that he had experienced continuous low back pain since an injury during active service, the evidence of record includes no indication of a chronic back disorder for many years after service. In fact, his private treatment records show he sustained an acute back injury in 1994 after picking up a bowling ball. The Veteran statements as to continuous symptomatology since service are found to be not credible due to inconsistency with the other evidence of record and due to his interest in the outcome of the claim. The opinion of the July 2011 VA examiner is found to be persuasive and based upon adequate rationale. The opinion is shown to have been based upon a thorough review of the evidence of record and adequate consideration of the Veteran's statements. The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between his present low back disability and service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, the claim for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs