Citation Nr: 1339334 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 03-32 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of an injury of the lumbar spine. REPRESENTATION Veteran represented by: Virginia S. Girard-Brady WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 27, 1979, to July 9, 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2003 of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request to reopen a previously denied claim of service connection for a low back disability on the grounds that no new and material evidence had not been presented. In July 2008, the Veteran appeared at a hearing before an acting Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In a decision in September 2008, the Board granted the Veteran's request to reopen the previously denied claim, and then remanded the claim for further development. After the requested development was completed, in a decision in October 2010, the Board denied the claim of service connection on the merits. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2011, the parties filed a Joint Motion for Remand. In an Order in May 2011, the Court granted the parties' Motion to vacate the Board's decision, and remanded the matter for further action. In October 2011, the Board notified the Veteran and his attorney that the acting Veterans Law Judge, who presided over hearing in July 2008 had retired. The Veteran was asked if he wanted another hearing. No response has been received. In February 2012, the Board remanded the claim for further development under VA's duty to assist, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The current disability of the lumbar spine, degenerative disc disease, was not affirmatively shown to have had onset during service, and the current disability of the lumbar spine, degenerative disc disease, is unrelated to an injury in service. CONCLUSION OF LAW The criteria for service connection for residuals of a lumbar spine injury have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in April 2003, March 2004, March 2005, and March 2006. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). As for the timing of the VCAA notice, to the extent there was pre-adjudication VCAA notice, the timing complied with Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim of service connection was readjudicated as evidenced by the supplemental statements of the case in October 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, private medical records, and records of the Social Security Administration. In February 2012, the Board remanded the claim and requested records from Carswell Air Force Base and Brook Army Medical Center during 1979. In October 2012, after five requests, the RO made a formal finding that the requested service records were unavailable and that further attempts to obtain the records would be futile. In accordance with 38 C.F.R. § 159(e), the RO notified the Veteran and his attorney of the unavailability of the records. The Veteran was afforded VA examinations in March 1999 and May 2009. As the examination in May 2009 was based on a review of the Veteran's history and as the disability was described in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation, service connection, if there is a disability resulting from personal injury suffered in line of duty in active military service. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(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, as distinguished from merely isolated findings or a diagnosis including the word "chronic. Continuity of symptomatology after discharge 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are also factual determinations. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service personnel records show that the Veteran served in the Army from May 1979 to July 1979. The service treatment records show that the Veteran was hospitalized for a psychiatric evaluation at the Brooke Army Medical Center (BAMC) from June 8, 1979, to June 25, 1979. In a Psychiatric Report it was noted that several weeks prior the Veteran had tried to stop a fight, and someone kicked him in the back. The Veteran stated that since then he had frequent episodes of left lower back pain. On physical examination, there was no abnormal finding. The diagnoses included a psychophysiologic muscoskeletal disorder of the left lower back. After service, records of the Social Security Administration show that the Veteran was initially granted benefits from 1982, and the primary disability was associated with the cervical spine. Private medical records in 1989 show a bulging disc at L5-S1 by CT scan. In December 1989, a private physician stated that the Veteran had low back pain radiating to the left lower extremity since a vehicle accident in November 1989 and an early accident with back injury in August or September 1989. VA records show that in November 1989 the complained of back problems for 10 years. In 1990 a CT scan and a MRI were consistent with degenerative disc disease at L5-S1. On VA examination in March 1999, the diagnosis was degenerative disk disease at L5-S1. The VA examiner stated that it was extremely unlikely that the herniation at L5-S1 with degenerative disk disease was the result of one a kick in the lumbar spine in 1979. VA records in June 2008 show that the Veteran complained of back pain. It was noted that the present back pain and degenerative disc disease were consistent with the type of injury the Veteran described, that is, a kick to the back in service. On VA examination in May 2009, the Veteran complained of low back pain. The VA examiner expressed the opinion that it was less likely as not that the current low back problem was related to the history in 1979. The diagnosed was chronic low back pain. Analysis The Veteran asserts that his current low back disability was caused in service when he was kicked in the lower back. He states that he sought treatment while on active duty and that this injury lead to the development of degenerative disc disease at L5-S1. The Veteran as a lay person is competent to describe an injury and symptoms of an injury, such as pain, which are within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (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). Although there is no contemporaneous record of the in-service low back injury the Veteran did describe the injury and episodes of lower back pain, which were documented in June 1979 in a Psychiatric Report. Although there was no physical finding of a low back injury, there was a diagnosis of a psychophysiologic musculoskeletal disorder of the left lower back. On the basis of the service treatment records alone, the current degenerative disc disease of the lumbar spine was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not warranted. Also degenerative disc disease is not a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1131 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), while there is evidence of a low back injury by history in service and while the Veteran is competent to describe a low back injury and back pain, the evidence describes what happened in service, competent and credible evidence is still required to prove a present disability and a causal relationship between the present disability and the injury as described by Veteran in service, the nexus requirement. Shedden, at 1167. After service, degenerative disc disease at L5-S1 by CT scan was first documented in 1989. The Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau at 1377. As a lay person, the Veteran is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one capable of lay observation. 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) The Veteran as a lay person cannot competently determined by personal observation that he had degenerative disc disease in 1979 as the diagnosis falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. §3.159; Jandreau, at 1377. Also degenerative disc disease is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of the current case law, degenerative disc disease is an internal disease process, analogous to a disease such as rheumatic fever, rather than to flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, degenerative disc disease is not the type of condition under case law that has been found to be capable of lay observation. As degenerative disc disease is not capable of lay observation under Jandreau and by case law, the claimed disability is not a simple medical condition, capable of lay observation. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose degenerative disc disease. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). The Board finds that the Veteran's statements are not competent evidence on the question of the presence or diagnosis of degenerative disc disease in service or before 1989, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claim. And while the Veteran as lay person is competent to report a contemporaneous medical diagnosis, there is no medical diagnosis of degenerative disc disease before1989, which is 10 years and at least one intercurrent injury in a vehicle accident after service. As for evidence of a nexus between the present degenerative joint disease and the in-service injury as described by the Veteran to the extent the Veteran himself makes the association, the association is an inference based on facts and it is an opinion rather than a statement of fact. As previously explained, degenerative joint disease is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the present degenerative disc disease and the in-service injury he describes. The Veteran's lay opinion is therefore not competent evidence of a causal relationship or nexus between in-service injury he describes and degenerative disc disease. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's lay evidence is not competent evidence on material issues of fact, namely, the presence of degenerative joint disease before 1989 or of a causal relationship between the present disability and in-service injury, the Board considers the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. There is competent medical evidence in favor of the claim, consisting of a VA record in June 2008, and evidence against the claim, consisting of the VA examination reports in May 1999 and in May 2009. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). As for the Veteran describing symptoms that later support a diagnosis by a medical professional, in June 2008 VA records show that the Veteran complained of back pain. The VA physician, who is qualified through education, training, or experience to diagnose and to offer a medical opinion, stated that the Veteran's back pain and degenerative disc disease were consistent with the type of injury the Veteran described, that is, a kick to the back in service. As for a contrary opinion, the VA examiner in May 2009, a certified orthopedic surgeon, who is also qualified through education, training, or experience to diagnose and to offer a medical opinion, expressed the opinion that it was less likely as not that the current low back problem was related to the injury 1979. The VA examiner stated that he had reviewed the Veteran's entire file and obtained a complete history, including the entries in service treatment records, as well as a physical examination, to arrive at the conclusion reached in the opinion. The Board attaches the most probative value to the opinion of the VA examiner in May 2009 considering the thoroughness and detail of the opinion, which is persuasive evidence against the claim and outweighs the opinion of the other VA physician. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative disc disease of the lumbar spine, claimed as residuals of a lumbar spine injury, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs