Citation Nr: 1336117 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-31 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. This matter was previously before the Board, most recently in March 2012, when the Board remanded for additional development. The Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT A low back disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current low back disability is related either to active service or to the Veteran's service-connected left knee disability. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service, it is not the result of or aggravated by a service-connected disability, and a relationship between a lumbar spine disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. 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 the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any 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) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated September 2007 provided the Veteran with all required notice, and the Veteran has received several readjudications of his claim since that time. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran's service medical records, VA medical treatment records, private treatment records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. In March 2012, pursuant to the Board's March 2012 Remand, the Appeals Management Center solicited an authorization from the Veteran to request his worker's compensation records from the Frank A. McBride Construction Company. To date, the Veteran has not submitted such an authorization. Instead, in April 2012, the Veteran submitted a March 1982 Order from the State of Florida Department of Labor and Employment Security. The duty to assist is not a one-way street. If a veteran wishes help in developing a claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). There is no indication that there is any other relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination of his spine in April 2012. The examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and provided a diagnosis and opinion consistent with the remainder of the evidence of record. The VA examination report is therefore adequate for the purpose of making a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). In January 2009, the Veteran testified at a Travel Board Hearing before a Veterans Law Judge (VLJ), who subsequently remanded the appeal for further development. While that development was pending, the VLJ who issued the remand retired from the Board. A VLJ who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). Accordingly, following the retirement of that VLJ, the Veteran was notified in a December 2011 letter of his right to appear at a new hearing before another VLJ. However, in a January 2012 response, the Veteran waived his right to a new hearing. Consequently, the Board finds that the due process requirements governing Board hearings have been met and there is no hearing request pending. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that he suffers from a low back disability either directly as a result of an in-service injury or secondary to his service-connected left knee disability. The Board will analyze the claims together because they involve a similar application of law to fact. In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for arthritis may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). To the extent that the Veteran's intervertebral disc syndrome may represent a degenerative or arthritic process, the Board will consider entitlement to service connection both via a continuity of symptomatology and on a presumptive basis. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be medical evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The April 2012 VA examiner diagnosed the Veteran with intervertebral disc syndrome of the thoracolumbar spine. Thus, a current disability is shown. With respect to an in-service event, disease, or injury, the Veteran received treatment during service in March 1969 and June 1969 for a sore back. A June 1969 narrative summary indicated that the Veteran had back pain of unknown etiology. Thus, an in-service event is shown. Regarding medical evidence of nexus, or the determination of the relationship, if any, between the Veteran's current disability and either his active duty service or his service-connected left knee disability, the Veteran underwent a VA examination of his back in March 1970. At that time, the Veteran was diagnosed only with a kidney infection. In a March 1982 Order from the State of Florida Department of Labor and Employment Security, it was noted that the Veteran injured his back at work in February 1981. The Veteran re-injured his back at work soon thereafter. In a January 1985 treatment record, it was noted that the Veteran had a history of back pain since the time of a 1980 work-related injury. In a March 1987 private treatment record, the Veteran indicated that he suffered a low back injury around February 1980, and he had a recurrence in January 1981. The Veteran stated that he served three years in the United States Marine Corps. In June 2007, the Veteran complained to a VA clinician of low back pain that he claimed had started while on active duty. In January 2008, the Veteran stated to a VA clinician that he was experiencing worsening pain in his back. The Veteran indicated that his back pain first occurred in-service in 1969. The clinician concluded that based on a "careful history reconstruction of events, time line for which veteran has record of medical care as well as time unable to work his duty as usual, it is as likely as not that his military lo [sic] back injury is causative in his current back dilemma of chronic pain, multiple disc herniations." The Veteran underwent a VA examination in April 2012. The examiner opined that it was less likely than not that the Veteran's current low back disability developed as a result of his in-service activities, in-service injuries, or any other aspect of his active duty service. As a rationale for that opinion, the examiner noted inconsistencies in the Veteran's physical examinations suggesting that the Veteran was engaging in excessive pain behavior. The examiner further considered the Veteran's non-concordant MRI findings that were consistent with findings in asymptomatic individuals, the absence of documented medical treatment from the time of discharge to the time of the Veteran's 1980 injury, and the benign nature of the Veteran's in service injury. The examiner further opined that it was less likely than not that the Veteran's left knee disability caused or aggravated the Veteran's low back condition. As a rationale for that opinion, the examiner noted that based on observations of the Veteran's gait patterns, there was insufficient gait abnormality associated with the Veteran's left knee disorder to have any meaningful abnormal stresses on the lumbar spine that could have caused or aggravated a lumbar spine condition. The Veteran submitted SSA records indicating that he is currently disabled due, in part, to a low back disability. However, those SSA records contain no rationale supporting an etiological relationship between the Veteran's current low back problems and his documented in-service injury. Furthermore, those records do not indicate that any such finding is based on a review of the Veteran's pertinent history or on any evidence apart from the Veteran's unsubstantiated statements. Accordingly, the Board considers those records, standing alone, to be insufficient evidence of a nexus to grant the Veteran's claim. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In any event, the Board observes that while SSA findings, in general, constitute probative evidence with respect to a service connection claim, they are not dispositive or altogether binding on VA since the agencies have different disability requirements. Collier v. Derwinski, 1 Vet. App. 413 (1991). Upon review of the medical evidence of record, the Board places little probative weight on the January 2008 statement of the VA clinician that associated the Veteran's current low back disability to his military service. Despite stating that such a conclusion was based on a "careful history reconstruction of events," the Board finds that the clinician did not consider that the Veteran, until 2007, consistently associated his history of back pain with his 1980 back injury, not with any incident of his military service. To the extent that opinion relied heavily on the Veteran's own account of events, the Board notes that a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board affords the April 2012 opinion of the VA examiner with great probative weight because it offered a well-reasoned conclusion that was supported by the medical evidence of record. To the extent that the Veteran believes that his low back disability is related either to his service or to his service-connected left knee disability, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a low back disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's low back disabilities are related either to his military service or to his service-connected left knee disability, the Board ultimately affords the objective medical evidence of record, which weighs against finding a connection between the Veteran's low back disability and his service or his left knee disability, greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his low back disability, and it finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for a chronic low back disability until 1980 at earliest, or approximately 10 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Furthermore, in a January 1985 treatment record, the Veteran stated that he had experienced low back pain since a 1980 work injury, or approximately 10 years after separation from service. Similarly, in May 1987, the Veteran related having a history of low back pain since February 1980. Furthermore, while the Veteran discussed his military history with the May 1987 clinician, he did not mention any history of back pain associated with his active duty service. Thus, while the Board has considered the lay contentions that the Veteran experienced low back problems soon after military service, the Board finds that the weight of the evidence, including the Veteran's own past contentions to medical care providers, does not support a finding of continuous symptoms since active duty. The Board finds that Veteran's more recent assertions relating the back disability to service to be less credible because of contradictory prior statements of record associating back pain with a 1980 post-service incident. The Board finds that the Veteran's allegations of continuity of symptomatology are not credible, and the medical nexus element cannot be met via continuity of symptomatology. Furthermore, the Board finds that arthritis of the low back was not shown within one year following separation from service. Therefore, presumptive service connection is not warranted. The Board finds that the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a low back disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs