Citation Nr: 1338049 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-17 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from December 1972 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In an August 2013 letter, the RO notified the Veteran of a video conference hearing in September 2013 that he had requested; he failed to appear for that scheduled hearing, and he has not provided any good cause for failing to report for that hearing. Accordingly, the Board finds that the Veteran has withdrawn his request for a hearing. FINDING OF FACT The most probative evidence of record fails to establish that the Veteran's current degenerative disc disease at L4-L5 and L5-S1 was caused by an April 1973 motor vehicle accident, manifested during military service or within one year of separation from service, or that the current low back disability is related to active service. CONCLUSION OF LAW The criteria for establishing service connection for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2013) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the issuance of a late notice may be cured by re-adjudication. In this case, in an October 2009 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in May 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, including those from the Walter Reed Army Medical Center (WRAMC); post-service VA treatment records; VA examination and medical opinion reports; and lay statements. VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. II. Analysis The Veteran contends that he has a current low back disability due to a 1973 motor vehicle accident that resulted in a back injury. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). To establish service connection for a present disability, there must be "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (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). For a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Service treatment records reflect that the Veteran was in a motor vehicle accident in April 1973 and hospitalized at WRAMC from April to June 1973. The diagnosis pertinent to his low back was "possible L1, L2 transverse process fracture." Following his discharge from WRAMC, the Veteran sought medical treatment for many different problems during his remaining years of military service, including treatment for headaches, which he attributed to the April 1973 accident. His service treatment records, however, do not document further complaints, evaluation, findings, or treatment for low back problems after 1973. A December 1975 extension examination indicated that his spine was normal on clinical evaluation. A February 2009 separation examination report identified only abnormalities found on clinical evaluation, which included the right lower extremity and identifying body marks. No abnormality of the spine was documented. The Veteran's informal claim for service connection for a back disability was received in September 2009, and his formal claim was received in October 2009. A November 2009 VA primary care note reflects that the Veteran presented to establish care. He stated that he had been having low back pain and that he injured his back in a motor vehicle accident in 1973. He reported that his back was hurting more now, he was taking up to 10 ibuprofen a day, and had been buying Vicodin off the street. The impression of a lumbosacral spine x-ray from the same day was degenerative disc disease at L4-L5 and L5-S1 with mild diffuse chronic degenerative changes. Subsequent VA treatment records document ongoing complaints of low back pain and pain management treatment, his June 2010 report of being hit by a car driving out of its driveway, and his July 2010 report that his work as a carpenter stresses his low back. During a June 2010 VA spine examination, the Veteran related that he was in an automobile accident in 1973 in service and found to have possible fracture of the L1-2 transverse process. He stated that the pain eventually resolved, but he developed low back pain again around 1993 and has had relatively chronic pain since then. He denied any other trauma or injury to the low back. The Veteran indicated that his back disorder affects his occupation as a carpenter because some days he is only able to work for five hours. He estimated missing 4 weeks over the prior 12 months due to the back condition. Following a review of the claims file, including the November 2009 lumbosacral spine x-ray report, and a physical examination, the diagnosis was degenerative disc disease of the lumbosacral spine. The examining physician opined that the degenerative disc disease of the lumbosacral spine was less likely as not caused by or a result of service. In support of his conclusion, the examiner explained that the Veteran has a history of low back pain as noted above. He was involved in an automobile accident in service and sustained a closed head injury, possible basilar skull fracture, and possible left L1-2 transverse process fracture. He had some back pain after the accident that subsequently resolved. He again began to experience back pain around 1993, 14 years following discharge from service. A recent radiograph revealed degenerative changes of the lumbosacral spine as noted. These changes are commonly seen and can be part of the aging process. The recent radiograph shows degenerative changes to a different area of the spine than was injured in service. There is no evidence of periodic treatment for low back pain until recently in the VA medical records. During a June 2010 VA examination for varicose veins, the Veteran reported working as a carpenter for more than 20 years. VA treatment records also document his ongoing employment as a carpenter; use of saws, nail guns, and power tools; and reports of increasing back pain. A May 2012 VA pain clinic pharmacist note listed a pain diagnosis as chronic low back pain since the 1970s status post motor vehicle accident. In his June 2012 substantive appeal, the Veteran stated that he believed his current back disability was "related to the accident because the back pain is in the same place now, just like where the pain was from the accident." In an August 2013 statement made on the Veteran's behalf, his representative asserted that the Veteran's "back originated from a car accident in 1973. He had minimal treatment on his back throughout the years, self-medicating until the issue became too severe and needed treatment in 1993." Having reviewed the medical and lay evidence of record, the Board finds that entitlement to service connection for a low back disability is not warranted. Initially, the Board acknowledges that the Veteran is competent to provide lay evidence of reporting his symptoms and that he has experienced back pain since the car accident during active duty military service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Court and Federal Circuit have addressed the circumstances where lay evidence can/must be considered, both judicial bodies have also addressed where the Board may make findings that the lay statements are beyond the competence of the giver, or that the statements are not credible or the giver of the lay evidence is mistaken. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Jandreau, 492 F.3d at 1377 n.4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). As in this case, the Veteran is not competent to state that his current disability, degenerative disc disease at L4-L5 and L5-S1, is medically related to the April 1973 car accident and the diagnosis of possible L1, L2 transverse process fracture, as such requires diagnostic testing. In addition to considering competence, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In weighing the credibility of lay assertions, the Board 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. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board also finds that with respect to a continuity of symptomatology of back problems since 1973, the assertion that the Veteran has experienced ongoing low back problems since active military service is unsupported by the medical evidence of record. As noted above, his service treatment records reflect complaints regarding many physical problems after his release from WRAMC in June 1973, including reports of problems associated with the 1973 accident; however, more than five years of service treatment records since June 1973 are silent for complaints of back pain or problems and subsequent examination reports documented a normal spine on clinical evaluation. Accordingly, the Board finds that the service treatment records, reflecting complaints of many physical problems in the absence of reports of back problems, tend to contradict the assertion that the Veteran experienced ongoing back problems since the 1973 motor vehicle accident. See Kahana v. Shinseki, 24 Vet. App. 428, 438-41 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board, as factfinder, to draw a reasonable inference). The Board also finds that the Veteran's statements regarding ongoing back problems since military service have been inconsistent. During the June 2010 VA spine examination, he stated that his low back pain resolved after the 1973 accident and that he developed low back pain again around 1993. Parenthetically, this statement, in fact, is consistent with his service treatment records, which do not reflect chronic back problems; however, in subsequent statements made in support of his claim for VA benefits and in the May 2012 VA pain clinic pharmacist note, he indicated that he had back pain since the 1973 accident. The August 2013 assertion by the Veteran's representative that the Veteran had progressive back pain and self-medicated until it became severe enough to seek treatment in 1993 is also inconsistent with the Veteran's prior statement to the June 2010 VA examiner. As a result, Board finds that the remote assertions made after the claim was denied of a continuity of back symptomatology since 1973 are not credible. Turning to the medical opinion evidence, the medical opinion by the June 2010 VA physician is persuasive and probative evidence against the claim of service connection for a low back disability because it was based on a review of the claims file, subjective history from the Veteran, physical examination, and was supported by an articulated medical explanation that is consistent with the remaining record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Here, the examiner explained that the location of the current disability evident on x-ray studies was different than the findings in 1973. He noted that the Veteran reported that his back pain resolved and did not return until 1993, 14 years after separation from service. He also suggested an alternative etiology, explaining that the current x-ray findings were commonly seen changes that can be part of the aging process. The Board finds that the examiner's rationale for his conclusion is consistent with the record. Moreover, evidence of a prolonged period without medical complaint, such as the Veteran's report of resolved back symptoms until re-experiencing back pain around 1993, and the amount of time that elapsed since active service, can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition to considering the claim for service connection on a direct basis, the Board has considered whether service connection is warranted on a presumptive basis. Because, however, arthritis was first shown many years after separation from service, service connection on a presumptive basis is not warranted. Finally, the Board acknowledges that a May 2012 VA social work note reflects that the Veteran reported that he applied for disability benefits from the Social Security Administration (SSA). When the record suggests that SSA may have records pertinent to the appellant's claim, but which have not been obtained, either a remand is required to obtain the records, or a non-conclusory explanation needs to be provided as to why the SSA records would have no reasonable possibility of substantiating the claim. See 38 U.S.C.A. §§ 5103A(a), 5103A(b)(1), 7104(d)(1). The issue in this case is whether the Veteran's current low back disability was caused by or otherwise related to the low back injury during military service, and the Board finds that there is no reasonable possibility that any SSA records would substantiate the claim for service connection for a low back disability. As explained in greater detail above, existing service treatment records are silent for complaints of back problems during more than five additional years of military service after release from WRAMC in June 1973, and the location of the current low back disability is different than the location of the June 1973 low back injury according to competent x-ray studies. Because the Veteran's service treatment records appear to be complete, the Board can scarcely imagine how the Veteran's 2012 claim for SSA disability benefits would now document a chronic back disability during service, a continuity of back symptomatology since the 1973 accident, or provide contrary medical evidence to show a current disability in the same location as the 1973 lumbar spine injury. Consequently, as the Board is directed to avoid remanding a claim that would not result in any additional benefit to the Veteran, this writing decides the Veteran's claim on appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). For all the foregoing reasons, the Board finds that service connection for a low back disability is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Because the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for degenerative disc disease of the lumbosacral spine is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs