Citation Nr: 1337435 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-37 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1970 to July 1974. He also had service in the United States Marine Corps Reserves from February 1977 to January 1981, including a period of active duty for training (ACDUTRA) in July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a lumbar spine disorder. In May 2008, the Veteran indicated that he wished to testify at a Board hearing before a Veterans Law Judge. In a March 2011 letter, the Veteran was informed that he was scheduled for a hearing in April 2011. He failed to appear for that hearing on his scheduled day, and has yet to show good cause for failing to appear. The Board therefore deems his request withdrawn and will proceed to adjudicate his appeal. The Board notes that this case was previously remanded in May 2011, July 2012, and January 2013. FINDING OF FACT The Veteran's current lumbar spine disability is not attributable to a period of military service. CONCLUSION OF LAW The Veteran does not have a lumbar spine disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was most recently sent a letter in March 2013 that provided information as to what evidence was required to substantiate the claim herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The Veteran's case was last adjudicated in an October 2013 supplemental statement of the case. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board acknowledges that this case was the subject of a January 2013 Board remand, which instructed that the Veteran be provided a VCAA notice letter, which was provided in March 2013, as noted above. The remand additionally asked for attempts to obtain Naval Hospital records; such attempts were made and it was determined in an October 2013 formal finding of unavailability that those records were unavailable and further attempts to obtain those records would be futile. The Veteran provided private treatment records with respect to treatment of his lumbar spine, dated most recently in January 2013. The Board notes that no further treatment was identified by the Veteran, either at VA or with any other private treatment provider. Finally, the Board requested a clarification of the September 2012 VA examiner's opinion; an addendum with such clarification was obtained in April 2013. Therefore, the Board finds that its remand order has been substantially met, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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, 1316 (Fed. Cir. 2009). "[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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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")). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic, and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). On appeal, the Veteran avers that his lumbar spine disorder is the result of a training accident he suffered during his period of ACDUTRA in July 1979 when he fell and was run over by a boat. He stated that he was treated for his injury at the Navy Hospital. He stated that he had two cracked ribs and that he left the hospital with bruised back and legs. He stated that he has had back pain since that accident. A July 2011 statement from T.C.O., a fellow servicemember who served with the Veteran as a squad leader during the July 1979 period of ACDUTRA, indicated that he witnessed the Veteran get hit by a boat during a training exercise and that the Veteran was taken away to the hospital at that time for treatment. He stated that the Veteran had cracked ribs, bruised legs and back, and had trouble breathing when he saw him the next day. He also stated that the Veteran did not participate in any further training during that ACDUTRA period following the injury, and that he had to take over as squad leader of the Veteran's squad following the accident. The Board notes that the Veteran's service treatment records from his period of active service, which predates his alleged injury, are of record. The Veteran's service treatment records from that period of active service do not reveal any treatment for, complaints of, or diagnosis of any lumbar spine problems; nor has the Veteran averred that his lumbar spine disorder began during this earlier period of active service. His service personnel records, which demonstrate a period of ACDUTRA service in July 1979, are also of record. However, any service treatment records from his Reserve service, including from his period of ACDUTRA service in July 1979 and any Navy Hospital records from July 1979, are unavailable and further attempts to obtain those records have been adjudged futile. In cases where service medical records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). Based on the foregoing evidence, the Board concedes that the Veteran was injured in a training accident during his period of July 1979 ACDUTRA when he was hit by a boat. The Veteran has reported hurting his back and nothing in the record contradicts his statement. The Board further concedes that the evidence of record currently demonstrates that the Veteran has degenerative disc disease (DDD) of the lumbar spine. Thus, the Board notes that the first two elements of service connection have been met in this case. This case therefore turns on the question of whether there is a nexus between the July 1979 boat training accident and his currently diagnosed disability of the lumbar spine. The Board finds that such a nexus does not exist. First, the Board notes that the earliest treatment records in the claims file are the Veteran's private treatment records from Dr. R.H.H., beginning in 2003. The Veteran's first complaint of any lumbar spine problems was January 21, 2005-coincidentally, the same date on which he filed his claim for service connection in this case. An x-ray from that date demonstrates that the Veteran had spondylosis with disc narrowing at the L5-S1 at that time. The Board finds that the first evidence of any degenerative or arthritic changes in this case is shown to be many years after discharge from service and therefore, the Board cannot award service connection a presumptive basis. See 38 C.F.R. § 3.307, 3.309. See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994). While the Board acknowledges that the Veteran has stated that he has had back pain since his accident, and such evidence is credible, the Board finds that evidence to be nominally probative. Instead, the Board finds the long history from 1979 to 2005 void of any evidence or mention of back pain to be more probative. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). In fact, the Board notes the significant portion of 2 years from 2003 to 2005, during which private treatment records show treatment for a variety of ailments, does not show any complaints of, treatment for, or diagnosis of any lumbar spine problems. It is not until the date on which the Veteran filed his claim for service connection that the first complaints of back pain are shown in the record. These records tend to show that the Veteran had not had continued back problems. Consequently, after weighing the Veteran's lay statements of continuity of pain since 1979 against the contemporaneous medical evidence and the lack of any complaints until the date he filed his claim, the Board finds that the evidence of record weighs against a finding of continuity of symptomatology since July 1979, such that a medical nexus is not shown in this case. See 38 C.F.R. § 3.303(b); Walker, supra. The Board acknowledges that the Veteran has averred that his lumbar spine disorder is related to his boat accident on ACDUTRA in July 1979; however, the Board notes that the Veteran is not competent to provide a medical opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board notes that a January 2005 statement from his private physician notes that the Veteran's lumbar spine disorder "could be" related to his boating accident in service. By its own terms, this opinion is conjecture. The Veteran underwent a VA examination in July 2011, at which time the examiner noted the Veteran's statements regarding the July 1979 boating accident resulting in two cracked ribs and hospitalization. After examination, the Veteran was diagnosed with DDD. That VA examiner concluded that the Veteran's lumbar spine disorder was not caused by or the result of military service. He noted that he reviewed the claims file and listened to the Veteran's historical recitation of the July 1979 injury; he also read the spouse's and other lay statements in the claims file. The examiner noted the Veteran's active duty service treatment records from 1970 to 1974 were void of any treatment or complaints of a back condition. He noted that he was "unable to find any treatment for the low back on active duty." He stated that the Veteran's x-ray evidence from 2005 most likely was secondary to senescence (aging). The Board found that this examination was inadequate, as it did not address the July 1979 accident for which no service treatment records were available, and remanded for clarification. The Veteran underwent another VA examination in September 2012. He was again diagnosed with DDD of the lumbar spine, and the examiner noted the Veteran's boating accident. The examiner opined that his DDD was less likely than not related to military service. The examiner opined that: X-ray changes and physical examination are compatible with his age and senescence. The physical examination is inadequate for rating purposes considering his demonstrated range of motion of 50 degrees compared to straight leg raising of 90 degrees. This indicated a degree of volitional limitation of motion and pain behavior. Despite the Veteran's complaints of mild back discomfort from 1979 until 2005, this was never sufficient (until he filed his claim) to warrant medical evaluation. The records are silent for a period of approximately 26 years that would document continued complaints of treatment. There is no history of documented continuing complaints or treatments to indicate a chronic disabling condition. The Veteran was able to pursue work in the sanitation department and as a truck driver for many years without reported difficulty. The x-ray changes are degenerative in nature, and there is no evidence of previous trauma. The Board again questioned the adequacy of that opinion, particularly with the statement that there was no evidence of previous trauma. The Board again asked for clarification. In an April 2013 addendum, the examiner reiterated the same opinion as noted above. However, he clarified as follows: 1. The previous opinion assumed that the injury took place as described. The statement in January 2005 that the back disability "could be" the result of an old injury was given by a primary care physician, not someone specially trained in musculoskeletal injury. This was apparently related from the history given by the Veteran. There is no evidence of traumatic change on lumbar spine studies as noted by the radiologist. There is no rationale for this statement. 2. Deficiencies in the previous examination described were noted and considered or addressed. 3. The reasoning that the demonstrated range of motion is not valid for rating purposes was examination in detail in the original report. . . . Sitting straight leg raising and comparison to standing measurement spine flexion is used in every examination of the lumbar spine. It is one of the Waddell's signs. 4. This observation has no bearing on the opinion. It does have a bearing on the range of motion measurements which might be used for rating purposes should service connection be granted. Therefore, it has no effect on the validity of the opinion regarding a relationship between current disability and military service. 5. X-ray changes and physical examination are compatible with his age and senescence. Based on the foregoing evidence, the Board finds that the evidence of record weighs against a finding of a relationship to service. First, the Board gives very little probative value to the January 2005 private physician's opinion, as it is speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Moreover, that opinion does not address the lack of traumatic evidence on the post-service x-rays, as noted by the September 2012/April 2013 examiner. The Board additionally notes that this opinion appears to be solely based on the history as provided by the Veteran, rather than review of the entire record. Instead, the Board notes that the most probative evidence in this case is the September 2012/April 2013 examiner's opinions, which considered the Veteran's July 1979 accident and other lay statements as provided to document the severity of the injury. Notwithstanding the lay evidence, the examiner noted that the Veteran's x-rays did not demonstrate any evidence of previous trauma that would be documented. Furthermore, he indicated that the level of degenerative changes was consistent with the Veteran's age and was related to his senescence rather than his 1979 injury on ACDUTRA. The Board finds that this evidence is persuasive and outweighs the lay statements and the January 2005 speculative opinion. In conclusion, the Board concedes that the Veteran was injured in a 1979 boating accident during a period of ACDUTRA, and that he currently has DDD of the lumbar spine. However, the Board finds that the evidence of record does not demonstrate that there is a nexus between his current DDD and that accident, including continuity of symptomatology. Accordingly, the Board finds that service connection for a lumbar spine disorder must be denied on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a lumbar spine disorder is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs