Citation Nr: 1340835 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-14 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to August 1968, December 1990 to July 1991, with periods of non-enumerated reserve service between July 1975 and August 1995. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois, which denied the Veteran's claim. The Board has previously considered this claim. In January 2012, the Board remanded the claim to the Agency of Original Jurisdiction ("AOJ") for additional evidentiary development, to include a VA examination addendum and an attempt to obtain additional private treatment and military reserves records. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). On his April 2009 VA Form 9, Appeal to the Board, the Veteran indicated that he wished to be scheduled for a hearing before the Board at his local RO. However, in a subsequent statement, received in October 2013, the Veteran indicated that he did not wish to appear at a hearing before the Board. Accordingly, his hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2013). This appeal includes a paper and Virtual VA paperless file. FINDING OF FACT The most probative medical evidence of record establishes that the Veteran's low back disorder manifested many years after service and is not related to any incident of active duty, inactive duty for training ("INACDUTRA") or active duty for training ("ACDUTRA"). CONCLUSION OF LAW The Veteran's low back disorder was neither incurred in, nor aggravated by any event, injury or disease of service, and arthritis of the lumbar spine did not manifest to a compensable degree within one year of separation from active duty service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA satisfied the notification requirements of the VCAA by means of a letter dated in June 2007, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter further satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claim was subsequently readjudicated in a March 2009 Statement of the Case ("SOC"), which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions, and again in a June 2012 Supplemental Statement of the Case ("SSOC"). B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a VA examination report and subsequent examination addendum. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Although the Veteran identified a private physician and chiropractor as providing treatment for his low back disorder, he failed to complete the records release form provided to him, indicating that the chiropractor did not keep any records past seven years, and the private physician had since died. Accordingly, VA is unable to obtain any private treatment records for the Veteran's low back disorder. The Board notes that the Veteran was first afforded a VA examination for his service connection claim in February 2009. Review of the examination report reveals that the examiner reviewed the complete claims folder, including the Veteran's available treatment records, interviewed the Veteran regarding his claimed symptomatology, and provided a rationale for his opinion that the Veteran's low back disorder was not the result of any incident of service. However, because the examiner's opinion appeared to be based on an incorrect premise that the Veteran had no subsequent periodic treatment following his 1993 in-service back injury, the claims folder was returned for an additional review. Thereafter, in a May 2012 addendum report, the examiner who performed the February 2009 examination again reviewed the claims folder and amended his opinion to note that he had considered September and October 1994 private treatment reports of record pertaining to the Veteran's low back. As this opinion was predicated on a complete review of the Veteran's claims folder, including the Veteran's assertions regarding his symptomatology, as well as the examiner's own medical knowledge, the Board finds the opinions, taken as a whole, to be adequate upon which to base a decision in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board also concludes that all procedures to obtain records pertaining to the Veteran's claim have been correctly followed. In February 2012, the Appeals Management Center ("AMC") in Washington requested the reserves service records from the National Personnel Records Center ("NPRC"). The NPRC responded by sending the Veteran's complete personnel record, which shows that he had several periods of Army Reserves and Army National Guard service, including a period of Army reserves service for 57 days from July 18, 1992 to July 17, 1993. Although these records do not delineate all of the Veteran's specific periods of active duty for training ("ACDUTRA") and inactive duty for training ("INACDUTRA"), as will be discussed below, treatment reports of record demonstrate that the Veteran sustained a low back injury on March 20, 1993, while on INACDUTRA. Moreover, as noted above, a VA examiner, after reviewing the complete claims folder, including all of his Reserve records (to include the March 1993 service examination report), as well as subsequent medical records in October 1994, concluded that the Veteran's current back disorder is not the result of any incident of service (however characterized). Accordingly, a remand for delineation of his specific periods of ACDUTRA and INACDUTRA service is not necessary. See 38 C.F.R. §§ 19.31, 19.37 (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Facts and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) (West 2002); see also 38 C.F.R. § 3.1(d) (2013). The term "active military, naval, or air service" includes active duty; any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of INACDUTRA during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2013). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). The United States Court of Appeals for the Federal Circuit ("Federal Circuit") recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran avers that he has experienced continuous low back pain ever since sustaining an injury to his back when he fell into a groundhog hole during a period of INACDUTRA service in March 1993. The service treatment records associated with the claims file reflect that, in March 1993, the Veteran presented for treatment following a reported back injury. He indicated that he had experienced back pain on and off since age 22 (1969), when he fell in a groundhog hole. He stated that he had recently injured his back on March 20, 1993 when getting in and out of foxholes, although he denied any direct trauma to his back at that time. The DA Form 2172 shows that the examining physician determined that the injury occurred in the line of duty as he was jumping into foxholes with web gear. This injury was identified as during a drill, during INACDUTRA. See DA Form 2172. In September 1994, the Veteran's private physician, Dr. C.S., indicated that the Veteran should not participate in physical training tests or excessive physical activity for one month due to lumbar strain. In October 1994, Dr. C.S. submitted another statement, in which he reported that the Veteran could resume testing in 90 days. Although somewhat difficult to decipher, a DA Form 3349, Physical Profile, attached to the October 1994 statement from Dr. C.S., appears to reflect that the Veteran had a back injury in September 1994 and was currently under therapy. He was not permitted to perform an army physical fitness test. The temporary profile was to expire in March 1995. There is no evidence of record, either from the Veteran's physician or from the Veteran himself, however, that indicates that a 1994 back injury was the result of ACDUTRA or INACDUTRA service. In February 2009, the Veteran was afforded a VA joints examination, at which time, he reported that he had strained his low back in 1993 while climbing in and out of foxholes. He reported that he had tried seeing a chiropractor on one or two occasions, but that it did not help. He stated that, over the ensuing years, he had not received any medication from his personal physician to treat his low back, and added that he preferred not to discuss any service-related incidences with that clinician, instead, speaking with his VA doctors. He also reported that he had worked as a boilermaker for many years, which involved repetitive crouching, squatting, climbing and using tools. The Veteran also reported sustaining no injuries subsequent to the March 1993 service injury. An x-ray of the lumbar spine revealed mild degenerative changes and multiple reduced disc spaces, consistent with degenerative discs. The clinician diagnosed the Veteran with lumbar osteoarthritis without features of compressive neuropathy. He opined that it was less likely than not that the Veteran's current complaints, physical problems, and related radiographic studies were secondary to his in-service injury in March 1993. In this regard, he explained that the Veteran suffered a lumbar strain at that time, which was essentially self-limited and confined to the service, as he had no subsequent periodic treatment and, following military duty, had a robust career as a boiler maker. He further noted that the Veteran's job involved repetitive crouching, squatting, and heavy lifting. He opined that his low back disorder was more likely than not related to the normal progression of aging. As noted above, in May 2012, the Veteran's claims folder was returned to the same VA examiner in order to allow him to consider and address the September and October 1994 statements from the Veteran's private physician, as well as the October 1994 physical profile, and again provide an opinion as to whether the Veteran's low back disorder was related to his INACDUTRA service. After again noting that he had reviewed the complete claims folder, the examiner noted that he had considered the September and October 1994 treatment reports from Dr. C.S. and the October 1994 physical profile. He also indicated that he had considered the Veteran's report of a continuity of low back symptomatology since service. The VA examiner again opined that the Veteran's low back disorder was less likely than note incurred in, or caused by the Veteran's in-service injury. In this regard, he explained that Dr. C.S.'s notes, other than suggesting/authorizing the Veteran's physical profile(s), were non-descriptive of the degree of severity of the Veteran's lumbar symptoms, physical assessments, x-rays or specific treatment. Accordingly, the examiner again concluded that it was less likely than not that the Veteran's current pattern of complaints and physical problems related to the radiographic studies were secondary to his incident documented in service in March 1993, but were more likely the result of the natural aging process. Again, he stated that the Veteran's lumbar strain at that time was self-limited, there was no evidence of periodic treatment for his back following military service, and his robust career as a boilermaker involved substantial physical activity. Based on a review of the complete evidence of record, the Board concludes that the probative evidence is against the Veteran's claim of entitlement to service connection for a low back disability, to include arthritis. In this regard, as noted above, the Board has considered whether service connection is warranted either on a direct or presumptive basis. The Board notes that, whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Because there is no evidence that the Veteran developed osteoarthritis of the lumbar spine within one year of separation from active duty service, presumptive service connection for this disorder is not for application. With regard to granting service connection on a direct basis, the Board finds the most probative evidence to be the opinions from the VA examiner, who, after thoroughly reviewing the medical evidence of record, as well as taking into account the Veteran's history of symptoms concerning his disorder, provided a detailed and comprehensive rationale for his conclusion that the Veteran's current lumbar spine osteoarthritis is less likely than not related to service. In addition to the medical evidence, the Board has also considered the statements of the Veteran as to the cause of his back disability. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that back pain is the type of symptom the appellant is competent to describe, his statements have some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, there is no evidence that the appellant has medical knowledge or training that would permit him either to diagnose, or determine the etiology of a complex spinal disorder like osteoarthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a claimant 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). As such, although the Board acknowledges the appellant's sincere belief that his current degenerative low back disorder stems from his injury during military service, his statements in that regard are not competent. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 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). To the extent that the Veteran asserts that he has had continuous symptoms of low back pain due to his injury in March 1993, the Board notes that there is an absence of any documented complaints or treatment for a low back disorder following the September 1994 treatment reports from his private physician until he applied for service connection more than 10 years later. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less credible than the negative contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). The absence of any clinical evidence of a low back disorder to include arthritis for more than a decade after service weighs against a finding that the Veteran's current low back disability was present in service or in the years immediately after service. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for a low back disability. The Board has also considered the benefit-of-the-doubt rule in this case, but the preponderance of the evidence is against the claim. As the evidence is not in equipoise, there is no basis to apply the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs