Citation Nr: 1336058 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-08 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a back disability, to include degenerative changes of the lumbar spine with numbness in both legs and feet with left foot drop. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1946 to January 1948 as a member of the Army, and from October 1961 to September 1962 as a member of the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for degenerative changes of the lumbar spine with numbness in both legs and feet with left foot drop. The Veteran was scheduled for a video hearing with the Board in September 2013. However, after being notified of the scheduled hearing, the Veteran cancelled the hearing and did not request a postponement or motion for a new hearing. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a current back disability manifesting as degenerative disc disease (DDD). 2. The Veteran did not incur a back injury during active service. CONCLUSION OF LAW The criteria for service connection for a back disability, to include degenerative changes of the lumbar spine with numbness in both legs and feet with left foot drop, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under the Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice was provided to the Veteran in April 2009, prior to the initial adjudication of the claim in September 2009. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. The RO also obtained private medical records identified by the Veteran and associated private medical records with the claims Further, the Veteran has not identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not been afforded a VA medical examination or medical opinion with regard to his claim for service connection for a back disability. In this case, because the weight of the evidence is against finding that there was an in-service injury or disease, there is no duty to provide a VA medical examination. More specifically, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a back disability because there is no record of any complaints, symptoms, treatment, or diagnosis related to a back injury to which any current disabilities could be related by competent opinion. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also 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 should be avoided). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claim. II. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, degenerative disc disease is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, neither 38 C.F.R. § 3.303(b) nor 3.309(a) applies to the Veteran's claim for service connection for a back disability. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that an injury he sustained while stationed in Japan in 1946 caused his current back disability, which includes degenerative changes of the lumbar spine with numbness in both legs and feet with left foot drop. See February 2009 VA Form 21-4138 (an edited version, changing 1947 to 1946, was received in June 2009). For this reason, he contends that he is entitled to service connection for his condition. Initially, the Board finds that the Veteran has a current back disability. In April 2010, the Veteran was seen by Dr. J.J. following back surgery. Dr. J.J.'s assessment of the Veteran's condition included multilevel severe lumbar degenerative disc disease. The Board notes that this finding is consistent with degenerative changes in the Veteran's back first observed by Dr. B.D. following an October 2001 MRI of the lumbar spine. However, after a careful review of the Veteran's statements and service treatment records, the Board finds that the weight of the evidence is against finding an injury or condition of the back incurred in service. Service treatment records include five medical examinations that include clinical evaluations of the Veteran's spine and notes to describe significant illnesses or injuries. The January 1948 service separation examination report (for the active duty period spanning September 1946 to January 1948) indicates no musculoskeletal defects. Service medical examinations from December 1953, November 1960, October 1961, and April 1962 each indicate a normal clinical evaluation of the Veteran's spine. The notes attached to each of these examination reports do not discuss any history of a back injury or condition. Service treatment records also include five reports of medical history completed by the Veteran. Medical histories provided in December 1953, July 1955, October 1958, October 1961, and April 1962 each show that the Veteran did not report any medical history involving his back or spine. Moreover, each report includes a statement from the Veteran indicating that he was in "good" present health. Here, the Board observes that each of the aforementioned service treatment records post-date the 1946 injury described by the Veteran in the February 2009 VA Form 21-4138. Additionally, the Board has reviewed the remaining service treatment records and found no entries pertaining to complaints, symptoms, treatment, or diagnosis for a back injury or condition. As such, the Veteran's service treatment records provide no evidence to support a finding that the Veteran incurred a back injury in service. Post-service medical records also do not identify an in-service back injury or condition. The first post-service evidence of a back injury is from 2001. In October 2001, the Veteran underwent an MRI of the lumbar spine with an evaluation by Dr. B.D. The examination report, which includes several diagnoses, notes that the Veteran said he had previous back surgeries. No additional medical history, to include a description of the date or cause of back pain, was noted in the report. Similarly, additional reports submitted by Dr. B.D. through July 2006 contain no medical history pertinent to the onset of the Veteran's back condition. The remaining post-service medical reports relating to the Veteran's back condition do not provide any history relating the Veteran's back condition to service. See April 2009 report (Dr. D.R.); August 2009 letter (Dr. J.D.); April 2010 surgery note (Dr. J.J.); April 2010 examination report (Dr. K.L.). In February 2010, the Veteran reported an onset of back pain in January 2010. See February 17, 2010 Dr. J.J. treatment note. However, given the well-documented history of back complaints before February 2010, the Board finds that this particular history is not probative evidence of the original source of the Veteran's back condition. See February 2009 VA Form 21-4138. After a review of the Veteran's service treatment records and available post-service medical records, the only evidence before the Board suggesting an in-service back injury is the Veteran's statement from the February 2009 VA Form 21-4138, relating his present condition to an in-service fall in 1946. Here, the Board finds that the Veteran is competent to report a previous fall that injured his back. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). However, the remaining evidence of record does not corroborate his account of an in-service fall and treatment in 1946. Service treatment records do not mention any treatment for a back injury and the 1948 service separation examination report indicates a musculoskeletal system without defects and no history of a back injury. The remaining service examinations and medical histories do not account for the alleged 1946 fall or any back condition, and histories provided in the available post-service treatment records do not discuss any in-service injuries. In addition, the Board considers that the Veteran's February 2009 statement was made in relation to his claim for service connection. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1999) (interest may affect the credibility of testimony). Thus, the Board finds that the Veteran's account of a 1946 fall - the only evidence of such in the record - is not credible, and that the weight of the remaining evidence is against finding that the Veteran incurred a back injury in service. In the absence of any credible evidence of an in-service injury, the Board finds that remand for a VA medical opinion is not necessary. McLendon, 20 Vet. App. at 83. As the weight of the evidence demonstrates no back injury or disease during service, such a statement purporting to relate a current back disability to service would be speculative as it would necessarily be based on an inaccurate factual assumption that a back injury or disease occurred during service. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). The Veteran is not competent to provide a medical opinion in this case because as a lay person, the Veteran lacks the required knowledge, training, and experience necessary to determine the cause of the medically complex disorder of degenerative disc disease. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433 n.4 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). Thus, given the lay and medical evidence of record, the weight of the evidence does not support finding an in-service injury or illness, and furthermore, does not include competent evidence relating the Veteran's current degenerative disc disease to service. As such, service connection for the disability is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). ORDER Service connection for a back disability, to include degenerative changes of the lumbar spine with numbness in both legs and feet with left foot drop, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs