Citation Nr: 1337556 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-25 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the by the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico. The Board notes that the Veteran had requested to be scheduled for a personal hearing before a Decision Review Officer; however, in correspondence dated in February 2009, he withdrew his request for a hearing. 38 C.F.R. § 20.704 (2013). This matter was previously before the Board in November 2011 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that an Appellant's Post-Remand Brief has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A chronic back disability did not have its clinical onset during service, arthritis of the spine was not diagnosed within the first post-service year, and a back disability is not otherwise related to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), 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 what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 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. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in July 2007, August 2009, and November 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. The Board further observes that this case was remanded in November 2011 in order to have the Veteran scheduled for a VA examination so as to determine the precise nature and etiology of his asserted disability. Thereafter, he underwent the requested VA examination in November 2011, and the report of such examination has been associated with the claims file. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). The Veteran asserts that he has a back disability that manifested as a result of his period of active service. A review of his service treatment records reveals that in March 1973, he reported a two week history of back pain. There was no known injury, and the pain was said to manifest with prolonged walking. He was said to work as a clerk, but that sitting was not bothersome. Physical examination revealed full range of motion; no listing; and straight leg raising and deep tendon reflexes within normal limits. The impression was complaint of low back pain, normal examination. The Veteran's discharge report of medical examination dated in April 1974 shows that upon clinical evaluation, the spine and musculoskeletal systems were normal. Following service, a July 1992 magnetic resonance imaging (MRI) study of the cervical spine revealed small central disc herniation with compression of the dural sac and flattening of the spinal cord at C3-C4 and C5-C6. Private outpatient treatment records Dr. Luis Diaz-Gonzalez, dated from January 1997 to February 2000, show that the Veteran sought treatment for neck pain and muscle spasms. VA outpatient treatment records dated from September 2006 to September 2007 show that the Veteran was treated for limitation of motion and muscle spasm of the neck. He was assessed with chronic neck and back pain. A VA examination report dated in November 2011 shows that the Veteran reported experiencing low back pain since his period of active service. He added that he was treated by VA at the San Juan VA Medical Center in the 1980's for his low back symptoms. He added that he sought physical therapy for cervical and low back pain. He added that in 1998, he underwent cervical spine laminectomy. He described ongoing severe constant pain at the low back with radiation to the cervical area. A MRI study of the lumbar spine revealed multi-level degenerative changes. The diagnoses were lumbar spine degenerative disc disease and cervical spine degenerative disc disease, status post surgery. Following examination of the Veteran, the examiner opined that the currently diagnosed cervical and low back conditions were less likely than not related to or linked to any incident in service. The examiner explained that there had been one single episode of low back pain with normal examination in service. After that episode of low back pain, there was no other medical examination, radiographic imaging, or low back complaint until 2001, more than 27 years after service, pointing out that the low back pain episode in service was acute and transitory and without sequela. The examiner also indicated that the service treatment records were silent toward any cervical condition. The first evidence of cervical pain was said to be in July 1992 when the cervical MRI revealed evidence of cervical disc herniation and compression of the dural sac, which was 18 years after service. Thereafter, the evidence showed treatment with Dr. Diaz from 1996 to 1998. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a back disorder. In this regard, the Veteran's available service treatment records are completely silent as to any diagnosis of or treatment for symptoms associated with a cervical spine disorder, and there is only the one incident of treatment for low back pain in March 1973 which was accompanied by a normal examination. The remainder of the service treatment records are silent as to low back symptomatology, and the separation examination report was within normal limits. The Board finds that the Veteran's separation physical examination report is highly probative as to the Veteran's condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining the Veteran's then-physical condition. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Following service, there is no evidence of a cervical spine disorder until the July 1992 MRI study (more than 18 years following service separation), and there is no evidence of a lumbar spine disorder until 2001 (more than 27 years after service separation). Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since active service, may be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds probative the November 2011 opinion of the VA examiner that concluded that the currently diagnosed cervical and low back disabilities were less likely than not related to or linked to any incident in service. The examiner considered the reported in-service back pain, but concluded that such was unrelated to the eventual onset of disability. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the contentions of the Veteran that he experienced back and neck pain in service, and that his current disabilities are related thereto. 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay 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, 492 F.3d at 1377. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his current back and neck symptoms are related to active service are outweighed by the remaining evidence of record. Given the absence of evidence in support of the Veteran's claim, for the Board to conclude that the Veteran has the asserted back disability as a result of service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2013); Obert v. Brown, 5 Vet. App. 30, 33 (1993). As such, the evidence in this case weighs against the claims of service connection for a back disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for a back disability is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs