Citation Nr: 1340441 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-39 835 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision, by the Waco, Texas RO, which denied the Veteran's claim of entitlement to service connection for a low back disorder. On February 7, 2012, the Veteran appeared at an El Paso facility and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. In January 2013, the Board remanded the case for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in April 2013. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). A review of the Virtual VA does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT A low back disability was not shown during military service, and current disability is not attributable to the Veteran's period of active duty service; arthritis of the lumbar spine was not manifested until many years after service. CONCLUSION OF LAW The Veteran does not have a low back disability that is the result of disease or injury incurred in or aggravated by active military service, and arthritis of the low back may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in May 2009 and August 2009 from the RO to the Veteran, which were issued prior to the RO decision in September 2009. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issue addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The Veteran served on active duty from November 1966 to December 1970. The service treatment records (STRs) are completely silent with respect to any complaints of or clinical findings of a back injury or back disorder; at the separation examination in December 1970, clinical evaluation of the spine was normal. The Veteran's initial claim for service connection for a low back disorder (VA Form 21-526) was received in March 2009. Submitted in support of the claim were VA outpatient treatment reports dated from April to September 2008. Among these records is the report of an Agent Orange Registry Examination, conducted in April 2008, which noted that the Veteran complained of chronic low back pain. It was noted that an MRI of the lumbar spine revealed herniated nucleus pulposus. The pertinent diagnosis was lumbago. Private treatment reports, dated from February to May 2009, are silent with respect to any complaints or findings of a chronic low back disorder. Received in January 2010 was a medical statement from Dr. James B. Boone, dated in October 2009, noting that the Veteran was injured in the Navy in 1968; he stated that the injury was the result of a major lifting accident. Dr. Boone reported that the Veteran was lifting a heavy object when he hurt his back; it was reported that he went to sick bay, but no x-rays were taken. Dr. Boone indicated that the Veteran was seen by the El Paso Orthopedic surgery group in 1971, at which time he was told that he had a ruptured disk after he had complained of back pain and leg pain. Dr. Boone related that there was no MRI performed at that time and the treatment records are not available. He has been bothered by back pain ever since that injury. Dr. Boone reported that an MRI revealed that the Veteran had significant degenerative changes with spinal stenosis and foraminal stenosis; he stated that this picture was compatible with the original 1968 injury. Submitted with the above-noted medical statement from Dr. Boone was the report of the MRI of the lumbar spine conducted in October 2009. The reported revealed findings of: multilevel spondylosis, greatest at L1-L2, where there is a large central to left foraminal disk extrusion, severe spinal canal stenosis, moderate to severe left foraminal narrowing, and moderate right foraminal narrowing. There was also moderate spinal canal stenosis at L3-L4, L4-L5, and L5-S1. There was moderate to severe bilateral foraminal narrowing, right worse than left, at L4-L5. The report further showed mild retrolisthesis of L3 on L4 on the basis of bilateral facet osteoarthritis. At a hearing in February 2012, the Veteran reported being classified as a radar man during his period of active duty; he worked with different kinds of radar equipment aboard ships. The Veteran indicated that he worked as a dispatcher for base security. The Veteran reported that, one day while lifting some crates that contained parts for river patrol boats, he heard something snap in his back. The Veteran related that he was not allowed to go to sick bay the day of the injury; however, the following day when he awoke with pain and soreness, he went to sick bay and was seen by a corpsman. The Veteran indicated that he was given pain killers and the pain went away after a few days. The Veteran testified that he was subsequently assigned to two different destroyers; he believed that those assignments aggravated his back condition. The Veteran related that he first sought treatment after service in February 1971; at that time, he was referred to a specialist who told him that he had ruptured a disk. He was issued a back brace and physical therapy. The Veteran indicated that the tried to obtain the medical records of his post-service treatment, but he was told that they only kept those records for 7 years; thus, the records had been destroyed. The Veteran stated that he was not currently receiving treatment because his back had not acted up like it used to in the past. The Veteran indicated that he experiences morning stiffness, which he treats with warm water. The Veteran was afforded a VA examination in February 2013. The Veteran reported that he injured himself while lifting heavy crates in the Navy; he stated that he was only given pain medication. The Veteran reported seeing private physicians after service, but he could not find records from the 1970s. The Veteran indicated that the pain was located in the lower back with occasional pain radiating down to the right leg and the foot. The Veteran stated that he has not been seen at VA for the back pain. The Veteran reported experiencing flare-ups of pain once a month, which occurs with bending at the waist. Following an evaluation of the lumbar spine, the examiner reported a diagnosis of lumbar degenerative joint and disc disease. The examiner noted that following a review of the claims folder and examination of the Veteran, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran had degenerative joint disease of the spine. He also noted that the Veteran was examined by Dr. J. Boone who opined that his current status was due to an in-service injury. However, the VA examiner noted that review of the claims file does not reveal a back injury or treatment during the Veteran's service period. He also noted that the discharge examination, dated in December 1970, did not show any back issues. The examiner further noted that the Veteran had no VA visit; nor had any back issues been documented since 1968. The examiner concluded that the current findings were consistent with natural progression of degenerative arthritis of the spine not caused by any documented in-service injury. III. Analysis Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: "(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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a veteran served on active military service and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent within one year from the date of termination of qualifying service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After review of the evidentiary record, the Board finds that service connection is not warranted for a low back disorder, including degenerative joint and disc disease. Significantly, the STRs are completely silent with respect to any findings or diagnoses of a back disorder. In fact, at the time of his separation examination in December 1970, clinical evaluation of the spine was normal and the Veteran denied having had any back problem. The first clinical documentation of the onset of a low back disorder is in April 2008, some 37 years after service separation. The Veteran here has contended continuity of low back pain following service. However, upon separation examination in December 1970, the Veteran denied any back problems and clinical evaluation of the spine was normal. The Board finds that this medical evidence weighs heavily against the contention that back problems existed in service and thereafter. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove that the claimed disorder was the result of an in-service injury, which resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). The lack of objective evidence between the period of active military service ending in 1970 and the first diagnoses in 2008, is itself evidence that tends to show that any current back disorder did not have its onset in service. Considered in the context of the remaining record, especially the separation examination report and history the Veteran gave at separation, the lack of evidence strongly suggests that the Veteran's allegations of in-service injury and continuity of symptoms are not credible. The medical record also does not present any evidence of arthritis of the spine being present within the first post-service year, and hence service connection may not be afforded for a low back disorder presumptively on that basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, while the Veteran has a current diagnosis of a low back disorder-lumbar degenerative joint and disc disease--there are conflicting medical opinions of record regarding the relationship between a current back disorder and the claimed in-service injury. Significantly, in a medical statement dated in October 2009, the Veteran's private physician stated that the degenerative changes with spinal stenosis and foraminal stenosis; he stated that this picture is compatible with an old injury. On the contrary, the February 2013 VA examiner opined that the Veteran's current low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that review of the claims file did not document a back injury or treatment during the Veteran's service period. He also noted that the discharge examination, dated in December 1970, did not reveal any back issues. The examiner further noted that the Veteran had no VA visit nor has any back issues been documented since 1968. The examiner concluded that the current findings were consistent with natural progression of degenerative arthritis of the spine not caused by any documented in-service injury. In assessing evidence such as medical opinions, the failure of a physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence in the adjudication on the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds that the opinion offered by the VA examiner in February 2013 is more persuasive than the opinion provided by Dr. Boone. As noted above, the private physician suggested that the Veteran's current back disorder was compatible with the claimed in-service injury. However, while he indicated that it was reported that the Veteran went to sick bay, there is no indication that Dr. Boone had access to or reviewed the Veteran's claims folder and associated medical records. It is noteworthy that the evidence of record contains no supporting evidence and no corroborating records that the Veteran sustained a low back injury during service, which resulted in continued problems, even problems that waxed and waned over time. See Struck v. Brown, 9 Vet. App. 145 (1996). Medical history provided by a Veteran and recorded by physician without additional enhancement or analysis is not competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the fact that the veteran's history is recorded in medical records does not transform it into a competent medical opinion); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). On the contrary, the February 2013 VA examiner included a thorough review of the Veteran's claims file, including the statement from Dr. Boone; the Veteran's medical history was considered, and a complete rationale was provided, which explanation was consistent with the remainder of the record. As such, the Board finds that the VA examiner's opinion is more persuasive and should be given greater weight. As for the Veteran's statements relating any current back disorder to an injury in service, although the Veteran is competent to describe symptoms pertaining to his claimed disability, whereas here, the question involved is one of medical causation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the absence of complaint or treatment until many years after service, and the absence of any credible evidence showing continuity of symptomatology since service, the Board finds that the evidence weighs against the Veteran's claim. The Veteran's low back disorder is not the result of disease or injury incurred in or aggravated by service, and there is no evidence of a nexus between the post-service diagnosis and military service. As such, the Veteran's claim for service connection for a low back disability, diagnosed as lumbar spine degenerative joint and disc disease must be denied. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not help the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a low back disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs