Citation Nr: 1336877 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-13 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from March 1994 to October 1994, June 2004 to September 2004, October 2004 to September 2005, and January 2006 to September 2006. The Veteran also served on Reserve status between February 1988 to August 2008, with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during that time. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in January 2012 for further development. A review of the record shows that the RO has complied with all remand instructions pertaining to the back claim by obtaining updated VA treatment records, affording the Veteran a VA examination and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appeared at a September 2011 Board videoconference hearing. A transcript is of record. In March 2013, the Veteran was informed that the Board member who presided over her September 2011 Board videoconference hearing was no longer employed at the Board (due to retirement). As a result, the Veteran was provided the option to testify at another hearing. On a form received in March 2013, the Veteran initialed the appropriate line to indicate that she did not wish to appear at another hearing and requested that her hearing be based on the evidence of record. Although the appeal also originally included the issues of service connection for an acquired psychiatric disorder and a neck disorder, these benefits were granted by rating decision in January 2013 and are therefore no longer in appellate status. FINDING OF FACT A low back disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is a low back disability otherwise related to such service or caused or aggravated by a service-connected disability. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran'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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in November 2008. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained available service treatment records. In March 2009, the RO issued a formal finding of the unavailability of service treatment records of Air Force Service from June 2004 to September 2004, October 2004 to September 2005 and from January 2006 to September 2006. The RO received a negative response from the Air Force Reserve at Barksdale in January 2009, from the Records Management Center in February 2009, and from the National Personnel Records Center in March 2009. Service treatment records from the 917th Medical Squadron were received in February 2009 and incomplete service treatment records were received from the Records Management Center in March 2009. The VA has also obtained VA and private treatment records; obtained Social Security Administration (SSA) records; reviewed the Veteran's Virtual VA file and VBMS file; assisted the Veteran in obtaining evidence; afforded the Veteran a VA examination in January 2012; and afforded the Veteran the opportunity to give testimony at a Board videoconference hearing in September 2011. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and her representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Overall, the Board notes that all theories of entitlement--direct and secondary--must be considered. See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998). 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 (1995). 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). 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Factual Background Reserve service treatment records are silent for back disability while the Veteran was on Reserve status. A February 1989 enlistment examination shows that clinical evaluation of the spine was normal. On a February 1989 report of medical history, the Veteran denied a past/current history of recurrent back pain. An August 1989 health questionnaire for treatment shows no indications of low back disability. On a December 1993 report of medical examination, clinical evaluation of the spine was normal. On a December 1993 report of medical history, the Veteran denied a past/current history of recurrent back pain. On a December 1993 applicant medical prescreening form, the Veteran again denied back trouble. Service treatment records for the first period of active service show that on a March 1994 health questionnaire for dental treatment, the Veteran did not indicate any back problems. A September 1994 report of medical examination (while the Veteran was on active duty) shows that clinical evaluation of the spine was normal and the Veteran denied recurrent back pain on a report of medical history. Post service treatment records show a January 1995 VA examination report noting the Veteran's report of a minor contusion in her low back after falling out of the back door of an ambulance. Since then she experienced an occasional stiff feeling. She reported low back pain that lasted one or two days, which occurred three times in the last six/seven months. The examiner diagnosed minor lumbar contusion (early April 1994) with good recovery. The examiner additionally noted that the lumbar spine was normal on examination. A September 2000 VA Emergency Care and Treatment record shows complaints of throbbing, sharp constant pain. The assessment was back strain. For her next period of active duty service, a January 2005 accident report that shows complaints of not only chest pains and shortness of breath, but back pains as well after a MVA. The Veteran was transported to Christus Schumpert Main. A January 2005 emergency room (ER) report from Christus Schumpert Health System shows review of her systems were negative with the exception of mild posterior headache as well as neck pain. Physical examination of the back shows that the lumbar spine appeared to be normal. The ER doctor noted that he was discharging the patient "with diagnosis of status post motor vehicle collisions with multiple musculoskeletal strains." A July 2008 examination (when the Veteran was on Reserve status) shows that clinical evaluation of the spine was normal. In her contemporaneous medical history, the Veteran checked the appropriate box to deny a past/current history of recurrent back pain or any back injury. An August 2009 VA treatment records shows complaints of recurrent low back pain for a few days since lifting a bed. The diagnostic impression showed low back pain. A July 2011 confidential consultative examination report from T.E.S., Ph.D. shows complaints of being unable to work due to low back pain among others. She stated that she had chronic pain since her in-service MVA. At a September 2011 Board video conference hearing, the Veteran testified of going to sick call for her back/neck 10 times from January 2006 to September 2006 after her MVA. The representative and the Veteran made clear that she was not seen separately for the back, but for both neck and back disorders in service. She reported treating her back with over-the-counter medication until someone suggested that she seek VA treatment. The representative noted a lapse in treatment right after service due to being unemployed, uninsured and being unaware of VA service. The Veteran testified that no notations were made of any preexisting disorders at the time she entered her next period of service in 2006. As noted previously, the records from this period of time are unavailable. The Veteran was afforded a January 2012 VA examination. The Veteran reported having lower back pain radiating down her right leg since her MVA. A magnetic resonance imaging (MRI) showed mild scoliosis. After interviewing and examining the Veteran, and after reviewing the claims file, the examiner answered two questions. The first question asked the examiner to identify all current back disorders. The examiner noted scoliosis found on a March 2010 VA x-ray and noted that it was never mentioned in the military. The examiner further noted that there were no spinal abnormalities that precluded the Veteran from participating in any activities in the military. The examiner stated that it appears to have been noted when the Veteran complained of progressive worsening of her right hip pain and had avascular necrosis of the right hip that led to right hip arthroplasty. At the time, the leg discrepancy was discovered related to restoration of the right hip joint. She noted medical literature that noted scoliosis is predominant in females and leg length inequality as one of the causes. She noted that since the MRI of the lumbar spine is essentially negative for lumbar spondylosis or stenosis with the Veteran's complaints of right hip, knee and lower back pain, it is at least as likely as not that the pain she had been complaining of reportedly since the MVA was always due to her right hip. The examiner cited to medical literature that noted back and sacroiliac joints commonly refer pain to or through the hip. She noted that the Veteran's recurrent and progressive symptoms of lower back pain, right hip and right knee pain did not get immediate attention and "only unfolded as she began to have her more lower back pain (or really what she thought was lower back pain) and right hip pain investigated due to its worsening to the point that these developed a limp." She noted that in addition to the 2005 MVA, the Veteran had several other traumatic events involving the right hip-leg splinted after a running injury in high school, right hip pain after a 17-mile road march in basic training, falling down a flight of stairs, and tripping when running. The second question asked if it is at least as likely as not that any currently identified backed disorder is caused by the Veteran's military service, including due to the MVA in January 2005. The examiner could not conclusively answer the opinion since it is not the major/underlying condition related to service. She believed it was a residual of the hip disability. She noted that scoliosis was not discovered until March 2010. It appeared to the examiner that the scoliosis is the result of leg length discrepancy which according to an orthopedist is either "related to the restoration or right hip joint" as it relates to her right hip arthroplasty. It was noted that the complaint of back pain since the MVA likely aggravated her right hip condition. Analysis The Board notes that service connection on a direct basis is not warranted. At the January 1995 VA examination, the Veteran reported that after falling out of an ambulance in April 1994, she had a minor contusion in her lower back that lasted six/seven months, which later manifested as stiffness at the time of the examination. However, the examiner found a good recovery, and thus it appears to the Board that the back injury was acute and transitory. There are no competent medical opinions linking her current back disorder to this incident in service. The Board acknowledges that the Veteran's main contention is not that her back pain stems from this fall, but rather is due to a 2005 MVA. At the September 2011 Board videoconference hearing, the Veteran testified that while on active duty, she injured her back after being rear-ended. Her car reportedly was totaled. The January 2005 ER report following her MVA show normal lumbar spine, and only mild posterior headache and neck pain were noted. Nevertheless, the January 2005 accident report shows back pain complaints and the Veteran did testify at the September 2011 Board videoconference hearing about going on sick call for her neck/back 10 times in 2006. She asserts that she has had back pain since this incident in service. Because the Veteran is competent to testify as to her symptoms and the frequency at which she sought treatment, the Board accepts testimony regarding her in-service treatment since the records from this period of service are unavailable. However, post service, the January 2012 VA examiner diagnosed scoliosis but did not link it to service. As will be discussed further below, the examiner opined that the scoliosis is secondary to another nonservice-connected hip disorder. The Board notes that there are no competent medical opinions of record linking back disability to service, including the MVA. The Board acknowledges treatment reports memorializing the Veteran's reports of back pain since the incident in service, and notes that these are not opinions provided by medical personnel. Evidence which is simply historical information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board acknowledges the Veteran's assertions that her low back disability is due to her in-service MVA. While the Veteran is competent to testify as to her disabilities, she is not competent to render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner believed that the back disability is secondary to her hip disability. However, the Board notes service connection on a secondary basis is not warranted. Here, service connection for hip disability was denied by rating decision in August 2010. The Veteran is only service-connected for posttraumatic stress disorder (PTSD), traumatic cervical spondylosis and residual radiculopathy upper right extremity. The Veteran does not assert (and there is no competent medical evidence showing) that her back disorder is proximately due to or aggravated by any of the aforementioned service-connected disabilities. Thus, service connection on a secondary basis is also not warranted. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs