Citation Nr: 1335846 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-25 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied a petition to reopen a previously denied claim. The Veteran was afforded a July 2010 hearing before the undersigned. The hearing transcript is of record. In February 2011, the Board granted the Veteran's petition to reopen and remanded the underlying service connection claim for additional development. The Virtual VA paperless claims processing system electronic folder (efolder) includes updated VA treatment records and the Informal Hearing Presentation. The RO addressed the newly updated VA treatment records in the March 2012 supplemental statement of the case (SSOC). FINDING OF FACT The Veteran does not have a chronic back disability attributable to his military service. CONCLUSION OF LAW The Veteran does not have a back disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notification and development action needed to arrive at a decision as to the claim of service connection has been accomplished. Through an April 2006 notice letter, the Veteran was notified of the information and evidence needed to substantiate his claim of service connection and the general criteria for how VA assigns disability ratings and effective dates. See Dingess, supra. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection and encouraged him to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), Social Security Administration (SSA) disability records, VA outpatient treatment records, private medical records, and statements from the Veteran. He was afforded a March 2011 VA examination. The March 2011 examiner reviewed the claims folder, queried the Veteran, and conducted a relevant clinical examination. She provided a medical opinion with a complete rationale. The March 2011 VA examination report is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In July 2011 and July 2012, the Veteran asserted that the March 2011 VA examination was inadequate. Specifically, the examiner was not an orthopedic specialist and inaccurately recorded his reports about his use of a back brace and his substance abuse history. He also disputed her reports that he did not have residuals from his in-service back injury. He reported that at separation he was unaware that he had back problems and had poor medical treatment. Review of the record shows that the VA examiner is qualified as a medical doctor. As explained below, the VA examiner's determinations are supported by the additional lay and medical evidence of record. Consequently, the Board finds the Veteran's objection to the examiner and the examination to be without merit. The record reflects substantial compliance with the February 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The current record includes: updated VA treatment records and March 2011 VA examination report. The agency of original jurisdiction (AOJ) re-adjudicated the claim in March 2012. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In general, service connection requires: medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), which includes arthritis, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A presumption of service incurrence or aggravation exists for specifically identified chronic disabilities, such as arthritis, if manifested to a compensable degree with a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. As detailed below, arthritis has not been demonstrated within a year of separation, so the presumption is not beneficial to the Veteran. Id. Service connection may also be granted for a disease first 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). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records, dated in January 1981, reflect that the Veteran had pain in his middle back over the previous week. He recalled having similar pain in August 1980. The examiner assessed chronic back strain. The Veteran again sought medical attention for back pain in April 1981. He complained of acute back pain and difficulty sleeping. He exhibited a full range of motion without specific tenderness. The examiner again assessed chronic back strain and recommended physical therapy. The Veteran had another episode of back strain in June 1981, after he lifted a heavy object. The examiner observed increased lordosis and kyphosis. He also noted tenderness. Neurological involvement was not suspected. The examiner again assessed back strain. In August 1981, the Veteran reported another instance of back pain after lifting a heavy object. On his May 1984 Report of Medical History for separation, the Veteran denied having or ever having recurrent back pain. Examination was negative for any spine abnormality. In September 1985, the Veteran filed a service connection claim for a left knee disability, which was denied in a November 1985 RO decision. Private medical records from June 1994 reflect that the Veteran sought medical attention for low back pain. He related it to a then-recent motor vehicle accident (MVA). Similar reports of low back pain related to a MVA injury are found in private medical records dated in December 1994, March 1996, and December 1997. VA treatment records from November 1998 and July 1999 also contain reports of low back pain associated with a MVA injury. State disability records from June 1996 reflect that the Veteran reported a history of back trouble in service, which was aggravated by a 1993 MVA. He reported the in-service back problems were associated with lifting activities. The examiner determined that the Veteran was able to work in accommodative settings without lifting or carrying duties. VA treatment records from January 2000 show that the Veteran had a lumbar spine fusion. The surgeon remarked that the Veteran had a history of chronic low back pain after being involved in a 1992 MVA. Notably, VA inpatient records show that the Veteran reported being diagnosed with degenerative disc disease in service, but that he did not have any back pain until the MVA. The Veteran filed a claim for service connection for a low back disability in August 2000, which was denied in a March 2002 RO decision. In April 2007, the Veteran filed his current claim. He reported that while he had a post-service MVA, the treating physicians informed him that the injury was actually a preexisting back disability incurred in service. He submitted a contemporaneous note from a treating VA clinician. She had reviewed January 1981 STRs documenting an instance of back strain. She commented that it was "possible" that the in-service injury contributed to the degenerative lumbar disc disease that necessitated the 2000 surgical fusion. He also provided a statement from his wife. She reported that he had informed her about his in-service back injury. In his August 2008 substantive appeal, the Veteran stated that he had a back injury between 1980 and 1981. He did not receive a physical examination before separation. He asserted that if he had had a separation physical examination, the in-service back injury would be apparent. The Veteran was afforded a July 2010 Board videoconference hearing. He reported having current treatment at the VA Medical Center in Cincinnati, Ohio. However, he initially had back pain within his first post-service year. He described his in-service slip and fall accident where he injured his back. He acknowledged having a post-service MVA injury in 1993. However, he believed that the treating physician told him that he had a preexisting back injury. In February 2011, the Veteran again reported that he did not have a separation examination. He also stated that three unidentified treating physicians informed him that he had a preexisting back injury at the time of the MVA. The Veteran was afforded a March 2011 VA lumbar spine examination with review of the claims folder. He reported initially injuring his back in service without realizing it. He described the in-service slip and fall injury. He recalled having bed rest for two weeks, then returning to duty without any restrictions. After service, he had a MVA and was diagnosed with degenerative disc disease. He did not have any medical treatment between service and the MVA. He recalled having low back pain only after the MVA. Clinical examination showed a full range of motion without pain. No postural or fixed deformity was observed. X-rays showed lower lumbar spine anterior fusion without radiographic complication. The examiner diagnosed lumbosacral degenerative disc disease. She recited the Veteran's reports that his in-service back injury had completely healed. She discounted the April 2007 treating clinician's statements as the clinician had not acknowledged the Veteran's denial of back pain between the in-service injury and MVA. The examiner then expressed a negative opinion. She cited reports that the in-service back injury healed without residuals and he only experienced residuals after the subsequent MVA injury. She believed the current back disability was related to the post-service MVA since his back pain complaints followed it. In July 2012, the Veteran again asserted that he was unaware of his back problems in service due to poor medical treatment. His treating physicians for the MVA injury verbally informed him that he had a preexisting back injury. However, they would not provide a written statement. Recent VA treatment records show that the Veteran continues to have medical treatment for back pain. The Veteran's reports of readily observable symptomatology and VA treatment records satisfy the element of current disability. STRs document several instances of lumbar strain. The Veteran has provided numerous reports asserting a nexus to service. He is competent to detail his history of back pain. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. However, the Board must determine the probative value of his reports. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (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."). Here, the Veteran has made several different assertions in support of a nexus. He reports not having a physical examination at separation and/or negligent medical care in service. STRs include a separation physical examination and Report of Medical History. Both reports were negative for a back disability. Additionally, in his May 1984 Report of Medical History, he affirmatively denied having or ever having had recurrent back pain. The STRs are complete and do not document any unusual or obviously negligent course of treatment for his complaints of back pain. He has not submitted any competent medical evidence suggesting negligent care. Briefly, the Board observes that he is not a medical professional and, barring unusual circumstances, competent evidence would be required to show negligence. Jandreau, 492 F.3d at 1377. The Board does not find his assertions of absent separation records or inadequate medical care in service persuasive. Caluza, 7 Vet. App. at 510-511. The Veteran also reports having a continuity of symptomatology for back pain beginning in service. Such reports conflict with his denial of recurrent back pain in his May 1984 Report of Medical History. His statements given to treating clinicians in the middle to late 1990s clearly reflect that he related his complaints of back pain to the post-service MVA which occurred in approximately 1993. (See Private medical records, dated in June 1994, December 1994, March 1996, and December 1997; VA treatment records from November 1998 and July 1999). He provided only one report referencing in-service back pain. (See June 1996 state disability records). He has consistently demonstrated that he has been well able to report for medical treatment, relate his medical history to clinicians, and contact VA. Notably, he did not identify back pain as a problem when he filed a service connection claim for a knee disability in September 1985. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). Given the above record, the Board does not consider the Veteran credible in his reports of having chronic back pain beginning in service. Id.; Caluza, 7 Vet. App. at 510-511. The competent medical evidence is limited to the April 2007 treating VA clinician's report and the March 2011 VA examination. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Board has considered the April 2007 treating VA clinician's report, but does not find it to be persuasive. She did not review the numerous reports found in private medical records where the Veteran related his back pain complaints to the MVA. Consequently, her report does not reflect a fully informed review of the record. See Barr, 21 Vet. App. at 311. Moreover, her statement that "[i]t is possible" that the current disability had a nexus to service is speculative in nature. The law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Statements from doctors which are inconclusive as to the origin of a disease cannot be employed as suggestive of a linkage between the current disorder and the claimed incident of military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). For these reasons, the Board does not give evidentiary value to the April 2007 treating clinician's report. Meanwhile, the Board finds the negative assessment given by the March 2011 VA examiner persuasive. The March 2011 VA examiner reviewed the claims folder, interviewed the Veteran, and conducted a clinical examination. She provided a negative opinion with a detailed rationale. The rationale is plausible and consistent with the record. She provided reasons for not believing the Veteran's report of chronicity beginning in service. The Board considers it persuasive evidence against a nexus to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In summary, when all of the evidence of record is considered, the evidence weighs against a nexus to service. The Veteran is shown to have back pain/ lumbar strains in service; however, the record does not show that the in-service problem was chronic or that he now has a chronic back disability related to the in-service lumbar strains. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a back disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs