Citation Nr: 1338069 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-07 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as secondary to service-connected hypertension. 2. Entitlement to service connection for a back disorder, to include lumbosacral strain-myositis and discogenic disease with disc herniation at L4-5 and L5-S1, to include as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to March 1972, from April 1989 to September 1989, from December 1990 to October 1991, including service in the Southwest Asia Theater of operations from January 5 to August 9, 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2007 rating decision of the San Juan, the Commonwealth of Puerto Rico, VA Regional Office (RO). In January 2012, the Board remanded this claim for additional development. In February 2012, the claims of entitlement to service connection for posttraumatic stress disorder (PTSD), a left foot disability, and a cervical spine disability were granted by the Appeals Management Center (AMC) in Washington, DC. As such these issues are no longer before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issues on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's chest pain has been attributed to his hypertension and that he does not have a heart disability. 2. The preponderance of the evidence shows that the Veteran's current lumbar spine disability, diagnosed as spondylosis and discogenic disc disease, was not present in service or until many years thereafter, and is not related to service or to an incident of service origin, or to a service connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). 2. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in February 2006 and January 2012 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. However, the Veteran was not provided notice with respect to the requirements set forth in Dingess. Nevertheless, the Board also finds that this is not prejudicial error here because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter as well as the rating decision and the statement of the case and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The case was last readjudicated in February 2012. The record shows that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, service personnel records, Social Security Administration (SSA) records, VA treatment records and VA examination reports. Additionally, the prior January 2012 remand instructions were substantially complied with. Instructions pertinent to the claims included obtaining additional VA treatment records, SSA records, and scheduling the Veteran for appropriate VA examinations concerning his claims. In response, the RO obtained the Veteran's SSA records and current VA treatment records through January 2012, which have been associated with the Veteran's virtual claims file. He was also afforded VA examinations in January 2012. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The Veteran filed this claim in October 2005 and since this amendment is not liberalizing the Board will adjudicate the issue under the law as it existed when the Veteran filed this claim. Generally, when a Veteran contends that a service-connected disorder has caused or aggravated a secondary disability, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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). Indeed, 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 C.F.R. § 7104(a) (West 2002). 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). 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"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.317 (2013). Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War. For a disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). However, the Board notes these provisions are not applicable to the current appeal for the reasons noted below. As an initial matter, the Board notes that records from the SSA show the Veteran is in receipt of disability benefits left reflex lymphatic dystrophy and major depression, not for either a heart disability or a back disability. In any event, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Moreover, the Veteran did not mention the existence of any of these disabilities when requesting SSA benefits, only the other conditions mentioned. Thus, because these SSA records do not specifically concern his claimed disabilities, but instead pertain to other already service-connected disabilities, these records are ultimately irrelevant and not determinative of whether he is entitled to service connection for the claimed disorders. Heart Disability The Board notes the Veteran is already in receipt of service connection for hypertension. The Veteran asserts he suffers from a heart disability that is due to his military service, or secondary to his hypertension. The Veteran's service treatment records do not show any complaints of chest pains or symptoms associated with a heart disability, aside from his already service-connected hypertension, during any of his periods of active duty. The Board notes that the absence of any relevant complaints or findings during his service is probative evidence against the notion that he had a heart disability while in service, albeit not altogether dispositive of whether he did or did not. See Struck v. Brown, 9 Vet. App. 145 (1996). Numerous post-service VA treatment records have been associated with the claims folder dating since 1992. The VA treatment records show the Veteran has complained of chest pain and was also diagnosed in 1993 with hypertension. However, these extensive VA treatment records are negative for any treatment and/or diagnoses of a heart disability, aside from hypertension. Therefore, these records fail to provide any indication that the Veteran currently has a heart disability related to his military service. In a September 2006 VA compensation examination, the examiner noted symptoms of fatigue and angina, with some dyspnea with mild exertion. However, pulmonary findings were normal, and the echocardiogram showed the heart was normal size. Following a physical examination, the examiner determined there was no evidence of intrinsic heart disease or coronary heart disease. The examiner stated that the Veteran's complaints of chest pain are due to his hypertension. In January 2012, the Veteran was again examined to determine whether he currently suffers from a heart disability that may be associated with his military service. The January 2012 VA examiner noted the Veteran does not have a current heart disability. The Veteran is certainly competent to proclaim having experienced relevant symptoms commonly associated with a heart disability, such as chest pain. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc). However, in this case, his complaints of chest pain have specifically been attributed to his already service-connected hypertension. The only evidence of record supporting the notion that the Veteran has a current heart disability comes from the Veteran personally by way of statements he has filed in support of his claim. But unlike, for example, a separated shoulder, broken arm, tinnitus (ringing in the ears), pes planus (flat feet), varicose veins, etc., determining whether a person has a heart disability cannot be based on mere lay opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). This determination necessarily is based on the results of objective clinical testing and data. Therefore, the Veteran has failed to satisfy the most essential requirement for service connection, which as explained is first establishing he has a current disability. Absent establishment of this required current disability, there necessarily is no disability to attribute to his military service or to a service-connected disability so as to, in turn, warrant service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, to the extent that the Veteran's chest pain has been attributed to his hypertension, a diagnosed disability that is not an illness that the Secretary has determined warrants presumptive service connection, service connection for this condition under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 for a heart disability is not warranted on this basis. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a heart disability. So there is no reasonable doubt to resolve in his favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Lumbar Spine Disability The Veteran contends that he injured his back during a fall in service and that service connection is warranted because his current back disability is related to his in-service back injury. Preliminarily, the Board notes that service connection under the presumptive provisions of 38 C.F.R. § 3.317 are inapplicable since the Veteran's complaints are attributable to known clinical diagnoses. Specifically, the September 2006 VA examiner provided a diagnosis of a lumbar strain, and the January 2012 VA examiner provided diagnoses of spondylosis and discogenic disc disease. Therefore, the determinative issue is whether his diagnosed back disability is attributable to the Veteran's military service. The service treatment records are completely silent regarding any complaints, treatment, or diagnoses pertaining to the Veteran's back during service. The Veteran's service treatment records do reference two falls during service, in March and July 1991. However, there was no indication the Veteran suffered an injury to his back. His complaints were primarily related to his left knee and leg. As stated above, the absence of any relevant complaints or findings during his service is probative evidence against the notion that he had a back disability while in service, albeit not altogether dispositive of whether he did or did not. See Struck v. Brown, 9 Vet. App. 145 (1996). The Board notes there are numerous post-service private treatment records, however, the first indication of low back pain was not until March 1999. In fact, an April 1992 VA examination does not indicate the Veteran suffers from any disability affecting his back. Additionally, an August 1995 VA orthopedic examination also fails to make any reference to the Veteran's back, but does note the in service falls, stated above. Since 1999, the Veteran has continued to receive treatment for back pain throughout the entire appeals period. In September 2006, the Veteran was scheduled for a VA examination in connection with this claim. Following an interview with the Veteran and a physical examination, the examiner provided a diagnosis of a lumbosacral strain- myositis, but failed to provide an etiological opinion. In compliance with the Board's January 2012 remand directives, the Veteran was afforded another VA examination in January 2012. The examiner again conducted an interview with the Veteran, a physical examination, and reviewed the claims file. The examiner provided diagnoses of lumbar spondylosis and discogenic disc disease. However, the examiner concluded that these lumbar spine disabilities are degenerative changes that are secondary to the normal process of aging and unrelated to the Veteran's service connected conditions. Therefore, it is less likely as not the back disabilities were aggravated by or caused by the Veteran's left knee disability. As stated, the January 2012 VA examiner determined the Veteran's lumbar spine disability is not attributable to his military service, on all theories of entitlement. Therefore, this VA examiner's opinions and the medical rationale of the opinions are where most of the probative value is derived, not from a mere review of the claims file, although that also is a consideration when the file contains evidence facilitating a more informed opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). For these reasons, the Board finds that the January 2012 VA examiner's opinion is probative evidence against the claim. Based on the findings of the January 2012 VA examiner, there is no competent and credible medical evidence of a nexus (i.e., link) between the Veteran's lumbar spine disability and his military service, such that service connection may be established. Indeed, the only evidence to suggest this disability may be related to service comes from the Veteran's unsubstantiated assertions. He has not shown himself to have the expertise to offer any probative opinions on a subject as technical as the cause of arthritis, and therefore, any such contention is not accorded any probative value. In this regard, the Veteran has submitted numerous statements in support of his claim, attesting to the pain associated with his diagnosed back disability. The Board acknowledges that he is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced pain. However, as a lay person without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of the diagnosed lumbar spine disability. For example, he is not competent to state that his currently diagnosed are a result of service because the diagnoses of lumbar strain, spondylosis, and discogenic disc disease involve a complex medical issue relating to the disease process affecting tissues in the body. Jandreau. Because the preponderance of the evidence shows that the Veteran's diagnosed lumbar spine disability is not related to or had its onset in service, service connection must be denied. ORDER Service connection for a heart disability is denied. Service connection for a lumbar spine disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs