Citation Nr: 1338418 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-43 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for degenerative disk disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1998 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in January 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in October 2010. The Veteran had a hearing before the Board in March 2013, and the transcript is of record. FINDING OF FACT The Veteran's current degenerative disk disease was not manifested during her active duty service or for several years thereafter, not is the degenerative disk disease otherwise causally related to active service. CONCLUSION OF LAW Degenerative disk disease of the lumbar spine was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO provided VCAA notice to the Veteran in an August 2009 letter prior to a December 2009 rating decision. This letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied. The notice requirements must also 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 v. Nicholson, 19 Vet. App. 473 (2006). The August 2009 letter provided notice of the types of information needed to substantiate the Veteran's claim. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). Furthermore, the duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). The Veteran's service and VA medical records have been obtained, along with relevant lay statements. The Veteran was also provided an opportunity to set forth his contentions during a March 2013 hearing before the undersigned. The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the March 2013 hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. VA provided adequate examinations in October 2009 and April 2011, as the opinions rendered were based on objective and subjective medical evidence and supported by adequate rationale. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). In so finding, the Board acknowledges the Veteran's concerns regarding the examiner's failure to use precise measurements when testing range of motion, but note that such results are more probative when rating a disability rather than establishing service connection. All aspects of the examinations pertaining to the present claim were adequately conducted and explained. VA has provided the Veteran with the opportunity to submit evidence and argument in support of her claims. Although the Veteran initially indicated that she would be obtaining private medical records, the Veteran's representative indicated in a March 2011 statement that there were no private treatment records for the back condition. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Laws and Regulations 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 veterans 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). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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, supra. A veteran is competent to describe symptoms in or after service that were perceived or experienced directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means 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); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). 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, 21 Vet. App. at 310. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). Factual Background & Analysis The Veteran claims that service connection is warranted because she first began experiencing symptoms of her degenerative disk disease during active service. During her hearing, the Veteran stated that she first experienced low back pain during service in 2000 as an ammunitions specialist. She claims she reported to doctors, who diagnosed a back strain and issued her a profile for no physical training or lifting. Thereafter, she continued to have recurrent low back pain. The Veteran reported being prescribed muscle relaxers once during service, and again after separation from a civilian doctor in Georgia. She states that she first received post-service treatment for her back about a year and a half after separation. She also reports undergoing physical therapy with the same doctor. The fact that the Veteran suffered low back symptoms during service is not in dispute. The Veteran's service treatment records indicate that she held a military occupational specialty of ammunition specialist. Service treatment records from April 1999 noted worsening back pain that was later resolved, and a July 2000 record noted back pain for a month. On a May 2001 report of medical history, the Veteran reported problems with her back, specifically that she had recurrent back pain. The accompanying May 2001 examination, however, noted her spine as normal with no defects or concerns and qualified her for separation. However, although the Veteran did suffer low back complaints during service, it must be shown that she has current low back disability causally related to the inservice low back symptomatology. Post-service evidence includes records from the Winn Army Community Hospital in Hinesville, Georgia indicate the Veteran received medical treatment in 2003, but contain no reports or notes regarding back pain. The Veteran also has an extensive history of treatment at the Charleston and Columbia, South Carolina VA Medical Centers (MC). A November 2006 treatment record from the Charleston VAMC indicates the Veteran developed a new or worsening back or flank pain, although it appears that this complaint may have been related to a urinary tract infection. Thereafter, in February 2007, the Veteran complained of chest pain radiating to her back. The first clear complaint of lower back pain after separation is documented in a September 2008 VA treatment record from the Columbia VAMC. The Veteran was given medication and informed of certain stretching exercises to treat the pain. Thereafter in 2009, the Veteran visited the Columbia VAMC several times complaining of lower back pain. In March 2009, the Veteran's lower back pain was noted as stable, and in April 2009 she reported the pain had been persistent for the past six or seven years. A June 2009 MRI led to a diagnosis of DDD in the lumbar spine. The Veteran filed her claim for low back disability in August 2009. An October 2009 VA examination resulted in a diagnosis of DDD in the lumbar spine based on her previous MRI. The Veteran claimed during the examination that the first instance of lower back pain was in 1998, though no injuries were sustained. She attributed her pain to frequent lifting and bending. She denied any incapacitating episodes, and said the pain occasionally radiates to her right leg. The examiner opined that her current arthritis was less likely than not related to service, reasoning primarily that the large gap between service and the first post-service complaint of lower back pain was not suggestive of a continuity of symptomatology. Therefore, the examiner opined that the pain was not part of a persistent pathology, but rather a new development in 2008. In doing so, the examiner noted he conducted extensive review of the claims file and service records. Afterwards, the Veteran was afforded a second examination with the same examiner in April 2011. At that time she reported having a recent incapacitating episode. She also stated that she had never been given formal physical therapy, but was shown exercises to do at home. The examiner noted that the Veteran's gait was very slow, but was otherwise normal with the use of a cane. The VA examiner, however, did not change his ultimate etiological opinion. He noted again that no objective data indicates her degenerative process began in the military, and the condition was not diagnosed until several years after separation. Furthermore, he found significant discrepancies between his objective findings and her subjective complains. As an example, he was unable to find any objective reason why, in the 2 years since her last VA examination, her range of motion was so profoundly decreased. He also had not objective data to explain why the Veteran required a cane to ambulate at the age of 32. The Veteran has a current diagnosis of DDD in the lumbar spine, and her service records do reflect a period of prolonged back pain. Furthermore, the Board recognizes the Veteran's competence to report observable symptoms such as lower back pain. Her statements regarding the strain experienced while moving ammunition is further confirmed by her DD-214 which indicates she held the military occupational specialty of ammunitions specialist. Again, the fact of inservice low back symptomatology is not in dispute. It is documented in service treatment records. However, that low back pain was documented in service alone is not enough; there must be chronic disability resulting from that inservice symptomatology. As noted above, a VA medical examiner, with the benefit of review of the claims file, history furnished by the Veteran, and physical examination, is of the opinion that the current low back disability is separate from and unrelated to the low back symptomatology during service. The necessary link between the current disk disease and service can be shown by evidence of a continuity of pertinent symptomatology since service. In this regard, the Veteran has offered statements and testimony to the effect that her low back complaints began during service and have continued over the years to the present day. The Veteran, even as a layperson, is certainly competent to report what she has experienced. However, for reasons hereinafter discussed, the Board is unable to find the Veteran's assertions of continuing low back symptoms since service to be credible when viewed in the context of the overall record. The record includes VA medical records beginning in 2001. These records document complaints and treatment for a number of disorders, but there is no mention of low back problems until about 2008, approximately 7 years after the discharge from service. Although the Veteran claims that she received treatment for low back problems over the years, the records simply do not support her assertions in that regard. The Board further notes that the Veteran filed a claim for VA benefits in September 2001 (shortly after discharge from service) for several disorders, but she did not include any low back disorder. This suggests that the Veteran herself did not believe she had a low back disorder at that time that was related to service. A VA general medical examination in September 2001 did not reveal any low back complaints or problems. The record shows that the Veteran advanced other claims for VA benefits over the next several years, but she did not file her low back claim until 2009. Again, this suggests that the Veteran did not believe she had a service-related low back disorder at those times as it is reasonable to expect that she would have included such in her VA claims. In sum, the actions of the Veteran for approximately 7 years after discharge from service are inconsistent with her current assertions of continuing low back pain since service. While the absence of contemporaneous medical evidence is not sufficient alone to discredit lay testimony, this is not a case where there is an absence of contemporaneous evidence. There are VA treatment records from 2001, but they document various other disorders, not a low back disorder. The various inconsistencies in this case detract from the credibility of the Veteran's lay testimony supporting a continuity of symptomatology between separation and her 2009 diagnosis of DDD. See Caluza, 7 Vet. App. at 511 (1995). In contrast, the October 2009 and April 2011 VA examiner provided well-reasoned opinions supported by clear rationale and extensive consideration of the entire claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion is dependent upon whether the opining clinician (1) was fully informed of the pertinent factual premises (i.e., history) of the case; (2) provided a fully articulated opinion; and (3) supported that opinion with analysis). Therefore, it is entitled to great weight. Accordingly, the preponderance of the evidence is against a finding that the Veteran's current degenerative disk disease of the lumbar spine is causally related to her active service. Service connection is therefore not warranted. In reaching these conclusions, the Board has considered the benefit-of-the-doubt rule, and finds it is not for application here. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for degenerative disk disease of the lumbar spine is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs