Citation Nr: 1336062 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-07 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The appellant served on active duty for training ("ACDUTRA") with the South Carolina Army National Guard ("ARNG") from July 1979 to December 1979, with periods of non-enumerated reserve service from February 1980 to February 1988. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina, which denied the claim. In August 2012, the appellant testified during a Travel Board hearing before the undersigned Acting Veterans Law Judge at the Columbia RO. A transcript of the hearing has been associated with the Veteran's claims folder. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence for inclusion in the record. The Board notes that a portion of the appellant 's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT The appellant is not shown by the competent and probative evidence of record to have a current low back disorder, nor is shown to have incurred a low back injury during a period of ACDUTRA or INACDUTRA service. CONCLUSION OF LAW The criteria to establish service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, a May 2010 pre-adjudication letter informed the appellant of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman by advising the appellant of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the appellant's ARNG service and post-service treatment records. Additionally, the claims file contains the appellant's personal statements and testimony in support of his claim. The appellant has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Although the Board notes that the appellant stated that he had been treated beginning in 1987 at Moncrief Army Hospital, an August 2010 request for treatment records was returned as undeliverable. However, as will be discussed in greater detail below, as the Veteran has not been shown by the probative evidence of record to have a current low back disorder, a remand to allow for an additional attempt to procure any treatment records from that facility would serve no useful purpose, and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Board acknowledges that, to date, VA has neither afforded the appellant an examination, nor solicited a medical opinion regarding the nature and etiology of his claimed low back disorder. In this regard, however, VA's duty to provide a medical examination or opinion is not triggered unless the record contains competent evidence or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service, or a disease manifested during an applicable presumptive period; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board notes that the appellant's sole contention is that he sustained a low back injury during a weekend period of INACDUTRA. See Board hearing transcript, August 2012. However, as will discussed below, the evidence, both lay and medical, indicates that the appellant did not experience a back injury during a period of INACDUTRA or ACDUTRA service, and does not currently have a diagnosed low back disorder. The Court has held that, in similar circumstances, where the supporting evidence of record consists only of a lay statement, VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim, as there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). Accordingly, there is no duty to obtain a medical examination or opinion in this case. Further, as noted above, in August 2012, the appellant was affording a hearing before the Board. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing generally was held in compliance with the provisions of Bryant. Additionally, a review of the record also reveals no assertion, by the appellant or his service organization representative, that VA or the Veterans Law Judge failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the appellant's submissions and statements, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate his claim because the submissions and statements focus on the evidence and elements necessary to substantiate such claim. As such, the Board finds that the Veterans Law Judge complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In addition, although the Board requested and obtained the appellant's medical treatment records from the Social Security Administration ("SSA"), a review of these records reveals no information concerning treatment for, or a diagnosis of a low back disorder. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirements has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. See Overton v. Nicholson, 20 Vet. App. 427 (2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all the evidence in the appellant's Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) (West 2002); see also 38 C.F.R. § 3.1(d) (2012). The term "active military, naval, or air service" includes active duty; any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of INACDUTRA during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). In order to establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). On his VA disability benefits application, the appellant states that he sustained a low back injury on February 18, 1987; he claims that the injury resulted in a chronic low back disability. As an initial matter, the Board observes that the appellant did not serve any periods of active military service. Moreover, his complete periods of ACDUTRA and INACDUTRA have not been enumerated by the RO. Although this information would ordinarily be necessary to make a determination as to whether service connection is warranted for an injury suffered in the line of duty, in this case, because the probative evidence reveals that the Veteran does not currently have a low back disorder, the enumeration of his periods of military service are not necessary and would not help to establish his claim. Review of the evidence of record shows that in December 1986, the appellant was seen at Self Memorial Hospital by Dr. J.R.S. with complaints of low back pain and pain in the left leg following a lifting injury at work. Although it was initially thought that he had a herniated disc because he had not responded well to several weeks of conservative therapy, a myelogram revealed no defect. In January 1987, the appellant returned to the same physician for follow up treatment, at which time, he reported that he was doing "quite well," and was no longer having any significant pain. An examination revealed full range of motion of the back with normal straight leg raises bilaterally, normal reflexes, sensation and motor function. The clinician opined that he could be dismissed from treatment and did not appear to need further medical attention at that time. Significantly, he noted that the appellant "has no permanent impairment." The appellant's service treatment records show that on February 18, 1987, he underwent a physical examination as part of his one (1) year ARNG reenlistment examination. At that time, he underwent an orthopedic clinic consultation in relation to a low back injury he said he had sustained at work in October 1986. The clinician noted a myelogram had been negative, the appellant had full range of motion, was negative for spasms, was non-tender, and had negative straight leg raises. An x-ray revealed no bony abnormality and a neurological evaluation showed no deficit. The impression was an acute lumbar strain, resolved with no evidence of a herniated nucleus pulposus (herniated disc). Subsequent post-service treatment reports beginning in 2002 reveal no evidence that the appellant was ever diagnosed with, or treated for a chronic low back disability. Rather, these reports show that he has been undergoing treatment for disorders of the neck, bilateral shoulders, arms and hands without any mention from either the appellant or his treating physicians of a low back condition. During his August 2012 Travel Board hearing, the appellant stated that he injured his back during an unspecified period of weekend ARNG training when he picked up a generator and his back went out. He said that he sought treatment the same day and then three months later, but noted that the treating physician has since retired. He stated that he is now using a TENS unit for pain. He admitted, however, that he never received a line-of-duty investigation report. As noted above, the appellant has also submitted additional treatment reports accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction. The treatment records, dated September 2012, show that for the first time, the appellant reported to one of his treating providers having experienced a low back injury in 1986 during military service. His chief complaints included persistent low back pain, as well as aching in the shoulders and knees. Although the clinician included an assessment of lower back pain on the treatment report, there was no diagnosis of an actual low back disorder. III. Conclusion Based on a review of the complete evidence of record, the Board concludes that the competent and probative evidence of record is against the appellant's claim of entitlement to service connection for a low back disorder. As previously noted, in order to establish direct service connection, there must be competent medical evidence of a current disability, a disease or injury in service, and competent medical evidence linking the claimed in-service disease or injury to the current disability. In this case, although the appellant submitted treatment records showing that he sustained a low back injury sometime in late 1986, subsequent treatment reports show that the condition resolved without any residuals. Post-service treatment records further demonstrate no evidence of complaints of, treatment for, or a diagnosis of a low back disorder. 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. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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, 511 (1995). Here, as noted above, the appellant initially claimed that he had sustained a low back injury on February 18, 1987. See VA disability application. However, as previously discussed, his service and private treatment records all indicate that he actually suffered a back injury in October 1986, and these records clearly state that the injury was incurred on the job, not during weekend reserve training, as the Veteran now asserts. As the Court has noted, the Secretary is not required to consider the patently incredible to be credible. See King v. Brown, 5 Vet. App 19, 21 (1993) (the Board must not assume the credibility of evidence when the evidentiary assertion is inherently incredible). Accordingly, the Board concludes that the probative evidence of record does not support the appellant's claim of entitlement to service connection for a low back disorder. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) does not apply in this case, as there is not an approximate balance of probative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs