Citation Nr: 1338109 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-37 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1965 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for a back condition. In August 2012, the Board remanded the Veteran's claim for further development, to include a VA examination. The requested action was taken, and there has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998), see also Dyment v. West, 13 Vet. App. 141 (1999). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's currently diagnosed back disability was not manifested on active duty service or within the first post-service year; the preponderance of the evidence is against a finding of a relationship to service. CONCLUSION OF LAW The criteria for service connection of a back disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A June 2008 letter, which was provided to the Veteran prior to the initial adjudication of his claim in October 2008, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating their claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA medical treatment records, and available private treatment records identified by the Veteran have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has alleged that he underwent back surgery shortly after his discharge from service. In a February 2013 letter, the Veteran stated that he contacted Fairfax Hospital and was told they could not provide medical records that date back further than 14 years without a court order. VA does not have the power to subpoena these records. The Veteran is aware of the steps necessary to provide these records and has not done so. While VA has a duty to assist, such a duty does not relieve a claimant entirely from assisting himself. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"). As it is ultimately the Veteran's responsibility to provide private medical records in support of his claim, the Board finds that no further assistance is required to satisfy VA's duty to assist. Moreover, the Board finds that the Fairfax Hospital records are not relevant in this case because as will be discussed in further detail below, the surgery was in fact done to "take care of a knot" in the Veteran's back due to a pilonidal cyst, and not for back problems. Also, the Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. As such, the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). A VA examination was conducted in August 2012. The examiner made all required clinical findings and provided a clear rationale as to why the Veteran's back disability was not related to his military service. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the August 2012 examination is fully adequate for adjudication purposes, and in compliance with the August 2012 remand orders. Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection the record must contain: (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). 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 diseases, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Also, when an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, in this case, Veteran has not contended that his back disability was incurred during combat, thus this presumption does not apply. There is no indication in the service treatment records, and no contentions or other evidence to suggest, that the Veteran injured his back while in combat. III. Analysis The Veteran is seeking service connection for a back disability. In his claim submitted in May 2008, the Veteran stated that his back problems transpired before or shortly after his release from the Army. He contended that he asked for treatment but was refused because he would not re-enlist. In June 2008 the Veteran submitted a statement in which he stated he had had back trouble from driving trucks, hard work on the docks and an incident at 90th Replacement. He stated he was scheduled for back surgery at Fairfax County Hospital in Fairfax, VA in 1970. He also stated that his back was feeling better but would never be well. In his notice of disagreement (NOD) dated January 2009, the Veteran contended that his back condition started in Vietnam when he and a fellow soldier dropped a steel rail and his foot was injured. He stated that he told the medic about his back and that no action was taken. He also stated that he complained several times after and when he returned to the States but that there was no progress. The Veteran stated that he was discharged with "back problem (cyst)" but was still not offered any relief. He also stated that the VA's own doctor will testify that his current condition was the result of "in-action" years ago. In his VA Form 9 dated October 2009, the Veteran alleged that his service record would show that he was discharged with a back problem and denied treatment because he refused to re-enlist. He stated that he was forced to have back surgery almost immediately after discharge. He also mentioned that a letter from a VA doctor in Richmond said that his back problem "worsened over a long period of time (years)" and that his back problem has been treated by VA for "15-years." The Board notes that the letter the Veteran mentioned was not provided with his VA Form 9. A hearing before a decision review officer was held at the RO in July 2010. The Veteran's representative stated that the Veteran had back problems due to having spent his entire three years in service loading and unloading trucks and ships. The Veteran stated that when he got to Vietnam, he worked as a truck driver and a dockworker. During the first three or four months he cleared out areas and set up the base before the arrival of the rest of his company, and remained in Vietnam for almost two years. The Veteran's service treatment records do not indicate any treatment for back problems or disabilities during service. The entrance examination dated August 1965 showed a clinical evaluation with normal results. Treatment records show that in November 1967 the Veteran had a steel beam fall on his left foot, and that he suffered a hematoma under his nail and around his 2nd toe. Pain on movement of the toe was noted, and he was advised to have an x-ray and no prolonged walking or standing was recommended. There was no indication of back troubles, or of a fall. Separation examination dated August 1968 shows a normal clinical evaluation, and under the summary of defects and diagnoses, there was a notation of a pilonidal cyst. The Report of Medical History reveals that the Veteran checked the box "no" under the section asking if he had or has "back trouble of any kind." In July 1983, the Veteran filed claims for compensation benefits for a skin condition, respiratory condition, and for tingling in his feet and hands, but not for any back disabilities. In August 1983, a VA examination was conducted, with regard to the skin and respiratory conditions. The examination report noted no tenderness with regard to the Veteran's back. In October 1983, a VA neurological examination was conducted with regard to the tingling in his feet and hands, and it was noted that the Veteran could walk on his heels and toes. The first evidence of any spine condition was in February 1999, when VA treatment records showed the Veteran with a diagnosis of degenerative joint disease of the lumbosacral spine with left leg radiculopathy. In December 1999, he complained of back pain from degenerative changes, and in June 2000 he was diagnosed with degenerative joint disease of the spine with sciatic pain. In January 2001, the Veteran was seen for an orthopedic consultation and was diagnosed with degenerative joint disease of the cervical spine and left cervical radiculopathy. In October 2001, x-ray results revealed degenerative changes of the cervical spine, including degenerative disc disease at C5-6. The Veteran also complained that his back was bothering him and requested pain medication. No etiology opinions were provided in any of the treatment records. Subsequent VA and private treatment records show the Veteran having undergone continued treatment for his back condition, but no etiology opinions were provided. A letter from Dr. S. of the VA Medical Center in Richmond dated July 2005 stated that the Veteran suffered from degenerative changes in the cervical spine, particularly herniated discs at the level C4, 5, and C5,6 with bilateral foraminal stenosis. Dr. S. stated that the Veteran's symptoms have been progressive over several years and currently so severe that he cannot work. He also stated that he supported the Veteran's attempts to obtain disability compensation. While this letter appears to be the one the Veteran is referencing in his VA Form 9 in October 2009, it does not reflect the Veteran's recitation of the contents of the letter. Following the Board's remand in August 2012, the Veteran underwent a VA examination in August 2012. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The examiner stated that the Veteran's claims file was reviewed. The Veteran reported that during service he was unloading and loading ships, and with heavy lifting and carrying he injured his back in 1968 in Vietnam., when he landed on his lower back. He stated that he visited medics at base and had ice put on his feet, but he stated to them that he landed on his lower back. After checking his back, he was told that nothing was wrong. After getting out of service, the Veteran reported having a "knot" on his back and had surgery at Fairfax Hospital in Virginia. After service, he worked in an underground coal mine from 1972 to 1982 and then worked as a police officer until 2002. Imaging studies were performed and arthritis was documented. The examiner stated that the Veteran did not have any radicular pain or any signs or symptoms due to radiculopathy. The examiner opined that the Veteran's degenerative disc disease was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's claimed in-service injury, event, or illness. The examiner stated that in reviewing the Veteran's service medical records, he had no documented back injury or disability in service. An examination revealed that the Veteran had a mark on his coccygeal region and he believed it could be soft tissue benign tumor removal/excision, what he mentioned as back surgery. The examiner stated that as a professional, he believed that the Veteran's degenerative disc disease of the lumbar spine is more likely from his heavy duty occupation as a coal miner and a part of generalized degeneration duty age. Although the evidence establishes the presence of a current back disability, the Board finds the preponderance of the evidence does not support a link between the Veteran's current back disability and his service. First, the Board finds that presumptive service connection is not warranted in this case, as there is no indication that the Veteran was diagnosed with arthritis within one year following separation from service. 38 C.F.R. § 3.307, 3.309. The first evidence of a diagnosis of degenerative joint disease (osteoarthritis), was in February 1999, approximately 30 years after discharge. Secondly, as osteoarthritis is a chronic condition as set forth in 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology affords a route to service connection in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Currently, the Veteran has competently reported continuity of his low back pain and symptomatology since service. A Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, a finding of continuity of symptoms is not warranted because the Veteran's assertion that he was injured in service and has had back problems since that time lack credibility. The Veteran affirmatively denied having back problems upon separation from service, by checking "no" when asked in his separation examination whether he had back trouble of any kind. In addition to the Veteran's denial, there is no contemporaneous medical evidence to support the Veteran's allegations. 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"). Service treatment records fail to reflect any treatment for back problems. While the service records do in fact show that the Veteran injured his foot with a steel beam, the records do not indicate that the Veteran complained of back problems or a fall, or was treated for any at the time of the foot injury. The Veteran made no reports of long term or chronic back pain during VA examinations in 1983, after he filed claims for other unrelated disabilities. Additionally, the earliest post-service evidence of a back disability was in 1999, almost thirty years after discharge. The absence of any clinical evidence for decades after service weighs against a finding that the Veteran's back disability was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Finally, in connection with the current appeal, the Veteran has repeatedly stated that he was discharged with back problems and underwent back surgery shortly after discharge. While the Veteran has indicated a valid problem with an area on his back, the service medical records note that the Veteran had a pilonidal cyst, a skin condition. Also, the Veteran stated to the August 2012 VA examiner that he had surgery to take care of a "knot" in his back at Fairfax Hospital after he was discharged, and not for any back disability. For all these reasons, the Veteran's assertion of continuity of symptoms is not credible and therefore service connection based on this theory is not warranted. 38 C.F.R. § 3.303(b). Lastly, there is no medical or lay evidence that provides a direct nexus between the Veteran's claimed in-service injury and his current back disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of the Veteran's current back disability from service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). This is not a situation where a cause and effect relationship is readily observable, such as with an explosion and tinnitus, or fractured leg. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). For these same reasons, the Board finds any attempts by the Veteran to link any current back disability to service to be beyond his competence as a lay person. The sole competent and credible evidence regarding a nexus between the Veteran's service and current disability, then, consists of the August 2012 VA examiner's negative nexus opinion. The examiner reviewed the claims file in its entirety and opined that a relationship between the currently diagnosed low back disability and the Veteran's claimed in-service injuries were unlikely, and the findings and records did not support the Veteran's allegations, and was more likely due to his heavy duty occupation as a coal miner from 1972 to 1982 and aging. The August 2012 VA examiner considered the Veteran's documented allegations of injury in service as well his as "back" surgery immediately following discharge. The opinion of the August 2012 VA examiner was based on an accurate review of the Veteran's medical history and included a thorough and well-reasoned rationale. It is therefore entitled to significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a back disability is not warranted. ORDER Service connection for a back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs