Citation Nr: 1338094 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-00 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1982 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was filed in September 2012, a statement of the case was issued in December 2012, and a January 2013 communication from the Veteran's representative was accepted as a substantive appeal. FINDING OF FACT The Veteran's current low back disability was not manifested in service, or within one year of discharge from service; the Veteran's current low back disability is not otherwise causally related to service, to include the back complaints noted during service. CONCLUSION OF LAW Low back disability was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002 & Supp. 2012); 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 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. A February 2012 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in February 2012, which the Board finds to be adequate, as the examiner considered the Veteran's complaints, reviewed the record, including the Veteran's STRs and private treatment records, conducted a thorough examination, and provided all findings necessary to adjudicate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); 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."). Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record included in the Veteran's claims file, including such evidence contained in Virtual VA and VBMS, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file contains evidence of ongoing VA treatment for back complaints but no competent medical evidence addressing the question of a nexus between the Veteran's back complaints in service and his current low back disability.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The issue before the Board involves a claim of entitlement to service connection. 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. § 1131; 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). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with features capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In determining 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. See generally Caluza v. Brown, 6 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence, 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, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran was afforded a VA examination of the spine in February 2012 that concluded with a diagnosis of degenerative disc disease and evidence of arthritis. Accordingly, the Veteran has a current diagnosis and the remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and whether there is medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. A November 1983 service treatment record (STR) refers to myositis (muscle inflammation) secondary to strain after complaining of back pain three days after lifting weights. Four months later, a March 1984 periodic medical examination concluded that the Veteran's spine and musculoskeletal system were normal. A November 1985 STR records the Veteran's complaint of low back pain. Another November 1985 STR also records complaints of backaches and notes the Veteran was taking muscle relaxers to ease the pain. In his November 1985 report of medical history, completed in connection with his separation from service, the Veteran indicated he had recurrent back pain, and included an additional notation that he was being seen by a physician's assistant for the "last 3-4 weeks" for his backaches. In the same report, a physician concluded that the Veteran's backaches were treated with pain relievers and were "presently symptomatic." One month later, the Veteran's December 1985 examination, conducted in connection with his separation from service, concluded that the Veteran's spine and musculoskeletal system were normal. While acknowledging the Veteran's in-service complaints of back pain, the February 2012 VA examiner was unable to link such complaints to the Veteran's current diagnosis of degenerative disc disease. The VA examiner noted that the Veteran only complained of back pain a few times in service, that those complaints did not result in medical discharge, and that, because the Veteran did not seek medical care within five years following military discharge, the Veteran's in-service back pain likely resolved on its own. The VA examiner opined that it is less likely than not that the Veteran's degenerative disc disease was caused by or was a result of injuries he sustained while in the military. Instead, he attributed the Veteran's low back disability to (1) a motorcycle accident that required three months of hospitalization, with one month unconscious, and left him with nerve damage, loss of patellar reflex to the left, and possible traumatic brain injury, and (2) to a subsequent re-injury while working as a home health aide. In the present case, the Board finds the February 2012 VA examination to be the most probative evidence of record as the VA examiner reviewed the record, considered the Veteran's subjective medical history, and examined the Veteran. The examiner provided a well-reasoned explanation for his conclusion that the Veteran's degenerative disc disease was not related to any in-service event. Most significantly, the examiner attributed the degenerative disc disease to other causes, specifically, a motorcycle accident involving the Veteran that resulted in severe injuries and a subsequent re-injury while working as a home health aide. The only evidence that links the low back disability to an in-service event is the Veteran's own assertions that his low back problems are a direct result of his active duty service in carrying parachutes on the flight line. To the extent that the Veteran is claiming that his low back disability has continued since service, although he is certainly competent to report what he has experienced, the Board is unable to view such assertions as credible in light of the other evidence of record. In this regard, it appears that the first brief mention of back pain post-service is in a January 1998 private treatment record, 13 years after service, where the Veteran's chief complaints were neck and shoulder pain. The Veteran explains this gap by claiming that he could not afford treatment for his back after leaving the service and by claiming that records showing earlier intermittent treatment from private physicians could not be located. However, he did not attribute any low back pain to service when he sought treatment for his neck and shoulder pain in 1998. Moreover, other private records in the late 1990's and early 2000's also do not refer to any history of inservice low back problems with symptoms continuing since service. In fact, at the VA examination in February 2012, more than 20 years after separation from service, the Veteran reported that he strained his back in service carrying parachutes back and forth but that since he has gotten older, he has noticed problems with regular back pain "over the last two years[.]" Thus, the medical evidence and the Veteran's own statements weigh against a finding of continuity of symptomatology since service. Additionally, the Board notes that certain statements contained in treatment records located in Virtual VA advocate against a finding of service-connection. Most significantly, during a March 3, 2010, annual physical, the Veteran reported that he injured his back the previous day while lifting a client at work. Additionally, according to urgent care reports from March 30, 2011, and July 9, 2012, the Veteran attributed his back pain to medications that he was taking. During those treatments, he denied trauma, injury, or overuse. Further, the Board notes that the Veteran's June 2007, January 2008, and April 2008 claims for separate service-connected disabilities make no assertion regarding low back disabilities. As the Veteran has claimed that he has experienced a continuity of symptomatology from his back disability since active duty service, the Board finds it reasonable to expect that the Veteran would likely include this disability when identifying problems he believed to be related to service when filing for his first three claims for compensation benefits. In summary, the Board finds that the Veteran's assertions of a continuity of symptoms since service are inconsistent with a number of earlier documented statements to medical professionals evaluating and treating him (and inconsistent with the diagnostic findings of the VA examination) over the years since his active duty service. Consequently, the Board finds any testimony or statements regarding the onset or etiology of his disabilities not credible. In this case, the competent and credible evidence shows that any back condition experienced in-service likely resolved a short time post-service. None of the competent and credible evidence, to include the VA examination report, indicates that this current disability had its onset during or as a result of service. The competent and credible evidence shows that the Veteran's low back disability is likely the result of a severe motorcycle accident and subsequent re-injury while at work. Additionally, because the Veteran's back disability did not manifest to a compensable degree within one year of separation from active military service, service connection may not be presumed. Based on the above, given the absence of continuity of symptomatology and, importantly, any favorable medical nexus opinion regarding his complaints and active duty, the Board finds that the preponderance of the evidence is against a grant of service connection, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). In this case, there is no doubt to be resolved. The evidence weighs against the claim and the appeal is denied. ORDER Entitlement to service connection for low back disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs