Citation Nr: 1342587 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 06-07 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for arthritis, diagnosed as lumbar spondylosis deformans. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to October 1964, with subsequent periods of reserve service. This matter comes to the Board of Veterans' Appeals (Board) from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2009 and in July 2013, when the issue remaining on appeal was remanded for required additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's currently diagnosed arthritis of the low back was not manifested during the Veteran's active duty service nor within one year thereafter, nor is such arthritis otherwise related to service. CONCLUSION OF LAW The Veteran's currently diagnosed arthritis of the low back was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, 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). The notice requirements 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The record shows that a letter dated July 2004 informed the appellant of the information and evidence necessary to warrant entitlement to the benefit sought on appeal (with additional/repeated notice pertinent to service connection claims in May 2008). The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Letters dated in March 2007, March 2008, and in May 2008 also provided notice concerning the evaluation and the effective date that could be assigned should service connection be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The July 2004, March 2007, March 2008, and May 2008 letters were sent prior to the most recent RO-level readjudication of the case, as evidenced by the July 2013 supplemental statement of the case. The VCAA notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). 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). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes the Veteran's service treatment records and all pertinent identified post-service medical records, including VA and private medical records. VA has afforded the Veteran a medical examination in July 2010, obtained a further addendum of the medical opinion addressing this claim in April 2011. The Board finds that the July 2010 VA examination report, as amended by the April 2011 addendum, now properly addresses the critical questions at issue; the VA examination report presents sufficient discussion of the pertinent history, clinical findings, medical principles, and expert determinations informed by review of the claims file such that it presents adequate and probative evidence in this case. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Board finds that the actions directed by the Board's prior remands have been adequately completed in this case. In particular, the Board again notes that the July 2010 VA examination report and April 2011 addendum now present the sought probative evidence addressing the pertinent medical matters at issue in this case, in accordance with the prior Board remands. The Board finds that the actions directed by the prior remands have been completed in substantial compliance with the terms and purposes of those directives. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Analysis The issue before the Board involves a claim of entitlement to service connection for arthritis, diagnosed as lumbar spondylosis deformans. 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. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes active duty, any period of active duty for training 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 inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). The Board notes that, in this case, the Veteran's contentions focus upon injury during his period of active duty service concluding in October 1964; neither the evidence nor the Veteran's contentions suggest that any pertinent injury or event took place during inactive duty following October 1964. 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). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). 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 layperson. 38 C.F.R. § 3.159(a)(2). The Veteran has submitted private medical records that refer to a current diagnosis of arthritis, often without substantial detail. VA examination reports completed in connection with this appeal in July 2010 and April 2011 further specify that the Veteran's pertinent symptom complaints feature pain in the lower back and bilateral calf muscles, diagnosed as lumbar spondylosis deformans on diagnostic X-ray study. As the Veteran's claim of entitlement to service connection for arthritis has at times been somewhat anatomically nonspecific, the Board has attempted to afford every consideration to the Veteran's claim by reviewing the record seeking to identify any basis raised by the evidence or the contentions in this case for identifying pertinent arthritis in-service or identifying potentially service-connected arthritis during the course of the present appeal. The Board shall particularly focus its discussion upon the question of whether arthritis of the low back may be service-connected because (1) the Veteran's specific statements, made in presenting his symptom complaints to the VA examiner in connection with advancing this claim on appeal, particularly identify his low back as the focus of his claimed disability, and (2) the low back is the clearly identified location of objectively diagnosed arthritis found in the specific medical evidence developed during the course of this appeal. The Veteran has contended, including in his May 2005 correspondence, that he suffers from arthritis due to an accident during military service. The Veteran has submitted pictures that he claims document this accident, and these are the same pictures that the Veteran previously submitted in connection with a different service connection claim; on that prior occasion, the Veteran associated the pictures with an incident in which he was seriously injured when he fell from a bunk aboard ship during active duty service. Thus, the Board understands that the Veteran contends he suffers from arthritis as a result of a fall from a bunk while aboard ship during active duty service. Significantly, the Board observes that the Veteran's service treatment records appear to show two separate instances of injury resulting from the Veteran falling from a bunk aboard ship during service. A March 1959 fall caused "acute distress" and concern regarding "Possible Fracture left lower ribs or possible ruptured spleen." The Veteran was transferred for hospitalization of over one week and returned in April 1959 with a final diagnosis of "CONTUSION LEFT LATERAL RIB CAGE" and reporting that "he feels fine." Service medical examination reports dated in February 1961 and June 1961 show that trained medical professionals examined the Veteran and noted clinically normal findings in all pertinent respects, with only body markings noted, and no suggestion of any arthritis or other pertinent chronic disability. An August 1962 fall, noted to be associated with the consumption of alcohol, was suspected to have caused a diagnosed concussion and significant laceration to the face. Medical evaluation of the Veteran in August 1962 involved a diagram of the body with some notations at various joints throughout; a competent medical expert has recently explained (in the April 2011 VA examination report, discussed below) that these notations reflect reflex testing and not any injury to the marked joints. The day following the fall, the Veteran was discharged with diagnoses of a concussion and laceration in "improved" condition. A September 1964 service separation examination associated with the Veteran's transfer to fleet reserve shows that trained medical professionals examined the Veteran and noted clinically normal findings in all pertinent respects, with only body markings noted, and no suggestion of any arthritis or other pertinent chronic disability. Service treatment records otherwise contain a set of reports from the Veteran's reserve service in years following his active duty service. Review of the these records reveals some notations suggesting joint or back pain decades after the 1964 conclusion of the period of active service, but with no suggestion of any injury in the line of duty, no suggestion of a chronic disability etiologically linked to active duty service, and no suggestion of continuity of symptomatology from the time of active duty or proximately thereafter. For instance, a January 1980 service treatment report suggests some manner of chest and back pain symptoms reported to have begun "2 days" prior and assessed to be costochondritis. A June 1992 service treatment report shows complaint of muscle pain beginning 2 months prior. The Veteran's February 2006 correspondence appears to offer testimony indicating that he recalls experiencing symptoms of arthritis within one year following his separation from service. The Veteran is competent to report recalled symptoms, such as pain, to the extent that symptoms are perceivable to lay sensitivities . However, the Veteran is not competent to provide a medical diagnosis attributing recalled pain to a chronic internal medical diagnosis such as arthritis. The September 1964 separation examination report is competent medical evidence that the Veteran did not have arthritis at the time of his separation from active service, and there is no competent evidence that the Veteran had arthritis within a year of his separation from active duty service. The contemporaneous evidence is against finding a continuity of any identified symptomatology: the earliest contemporaneous documentation of complaints of back pain or joint pain after active service in the decades following service show that the Veteran himself reported timing of onset of such symptoms long after his separation from service. Prior to the filing of this claim, none of the Veteran's reports of pertinent symptomatology are documented to have suggested a continuity of symptomatology dating back to around the time of active duty service. Even assuming that the Veteran experienced some painful symptoms proximately following service, competent evidence does not indicate that arthritis manifested within a year following service nor does the most probative evidence indicate a continuity of symptomatology of the current arthritis pain dating from the Veteran's active duty service (or proximately thereafter). As there is no competent evidence that arthritis was manifested in the first postservice year, there is no basis for considering (and applying) the 38 U.S.C.A. §§ 1112 chronic disease presumptions (for arthritis). On VA examination in July 2010, the Veteran reported that his present symptoms of lower back pain and pain in calf muscles of both legs started from a fall from his bunk bed while in military service in 1959 and 1962. The examining physician concluded that the "current lower back condition with pain radiating to calf muscles both legs IS NOT CAUSED BY OR A RESULT OF his falls from a bunkbed [] while in military service" (emphasis in original). This opinion was informed by review of the claims-file and direct examination and interview of the Veteran. In discussing the rationale for this opinion, the VA examiner noted documentation of a fall in March 1959 from a bunkbed with impact upon the Veteran's ribcage, evacuation to a hospital, completion of X-ray imaging, and diagnosis of a contusion of the left lateral rib cage with no fractures. The VA examiner cites that there was no mention of any lower back complaint and that there was no mention in the documentation of any pain or significant finding elsewhere in the back. The VA examiner also noted documentation of another fall in August of 1962, also from a bunkbed, under the influence of alcohol. The VA examiner noted that the diagnosis associated with the second fall was a concussion of the brain and laceration wound of the occipital area of the skull. The VA examiner's rationale for the negative etiology opinion cites that there was no mention of any lower back involvement or complaints of lower back pain at that time. The July 2010 VA examiner cited that a June 1961 service medical examination report shows normal findings for the spine, upper and lower extremities, and feet, with no mention of any lower back condition; the VA examiner notes that the Veteran was deemed qualified for re-enlistment and to perform all of his duties at that time. The VA examiner determined that, by the time of the June 1961 examination, the Veteran's "condition diagnosed as contusion of left lateral rib cage due to fall in 1959 was totally resolved/healed with no chronic sequelae or complication." The VA examiner's rationale goes on to cite that a September 1964 medical examination report shows normal findings of the spine, lower extremities, and feet, with no mention of any lower back involvement or complaints of lower back pain. The VA examiner determined that, by the time of the September 1964 medical examination, the Veteran's "skull laceration and brain concussion due to his fall from a bunkbed on Aug, 1962 was completely healed and resolved with no complications." The VA examiner noted that the Veteran was deemed medically qualified to be transferred to fleet reserve, and the VA examiner cites finding "[n]o evidence of any chronic lower back condition diagnosed 1 year after his discharge or transfer to fleet reserve." In an April 2011 VA examination report, the same physician who authored the July 2010 VA examination report further concluded: "any current arthritis specially lumbar spondylosis deformans on Xrays IS NOT CAUSED BY OR A RESULT OF accidents while in military service specially episodes of falling from a bunkbed" (emphasis in original). This opinion was informed by review of the claims-file and VA medical records. The VA examiner explained his rationale, citing that it was most significant that the documentation of treatment associated with the March 1959 fall showed normal findings for the extremities, no mention of any lower back complaint, nor any indication of any pain or significant physician examination finding in the back/spine. The VA examiner explained that the "[m]ost pertinent evidence" to the medical analysis was the June 1961 report of medical examination showing a normal spine, normal upper and lower extremities, and normal feet. The VA examiner also further discusses the documentation associated with the August 1962 fall from a bunkbed, emphasizing that there was no mention of any lower back involvement or complaints of lower back pain at that time. Significantly, the VA examiner explains that "The stick figure diagram of the body [in a service treatment record] IS AN EXAMINATION OF DEEP TENDON REFLEXES AND NOT, I REPEAT, NOT NOTATIONS FOR ANY POSSIBLE JOINT INJURY" (emphasis in original). The VA examiner notes that the Veteran was discharged and noted to be in improved condition the following day. The VA examiner explains: "If there were any major affectation of any joint in his body then patient would not have been discharged the following day. This discharge just one day after his injury and assessed IMPROVED is evidence that no joints, specially the spine were involved as a result of this fall." The VA examiner cites the "most pertinent evidence" of the September 1964 medical examination report, showing normal findings of the spine, upper and lower extremities, and feet without any mention of any lower back involvement or complaints of lower back pain. The VA examiner's April 2011 report otherwise reiterates the discussion presented in the prior July 2010 VA examination report. Expanded discussion of recent X-ray findings explains that the current findings are "very mild" and presents the medical analysis that "[i]f indeed the lumbar spine were affected by these two incidents of fall in 1959 and 1962, then we would expect more abnormal findings in his recent lumbar Xrays.... However, this is not the case." The VA examiner discussed that the X-ray findings were compatible with the Veteran's 1961 and 1964 examination reports and "very compatible" with the data found and recorded in his March 1959 and "MOST SPECIALLY treatment records of August 29, 1962, WHEN HE WAS DISCHARGED IMPROVED AFTER JUST ONE DAY ON AUG 30, 1962" (emphasis in original). Finally, the VA examiner reiterated that "[n]o medical evidence was submitted to show that this claimed lower back condition manifested to a compensable degree within the initial post-service presumptive period of one year." The evidence shows that the Veteran currently has arthritis of lumbar spine. However, the July 2010 and April 2011 VA examination reports indicate that this disability is unlikely to be related to service, including with specific consideration of the Veteran's contention that his current arthritis was caused by the documented incidents involving falling from a bunkbed during service. The probative July 2010 and April 2011 VA examination reports discuss the Veteran's documented in-service falls from a bunkbed and explain, in the context of all available information, that the current arthritis is unlikely to be medically etiologically linked to these events. There is no contrary medical opinion of record, and there is no competent evidence of record otherwise indicating any basis for finding any etiological link between the current arthritis and the Veteran's military service. The Board once again notes, as discussed above, that the competent probative service separation examination in September 1964 indicates that the Veteran had no arthritis at the conclusion of his active duty military service, there is no competent evidence showing arthritis manifesting to a compensable degree in the year following service, and the most probative evidence is against finding a continuity of pertinent symptomatology from service to the present. The Board finds that the Veteran's current arthritis was not manifest in service or to a degree of 10 percent within 1 year of separation, and the Board finds that it is unrelated to service. Because the preponderance of the evidence is against service connection for the arthritis on appeal, service connection may not be granted for arthritis in this case. The Board concludes that the Veteran did not have chronic arthritis of the low back disorder in service, and that his current low back arthritis was not manifest in service and is unrelated to service. Accordingly, service connection is not warranted for arthritis of the low back. Conclusion The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for arthritis of the low back. In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the issue on appeal. The Board acknowledges that the claims file contains a quantity of other documents, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the evidence deemed to be most probative in the discussion above. Here, the evidence weighs against finding that the Veteran's arthritis is etiologically linked to military service. The Veteran has been afforded a VA examination with medical opinion to ensure adequate competent medical evidence addressing the arthritis service connection claim. The evidence now presents adequate medical information and opinion in connection with the claim; the July 2010 VA examination report and April 2011 addendum have provided clear findings and opinions with persuasive discussions of rationale weighing against the arthritis service connection claim on all pertinent bases. The VA examiner's pertinent findings and opinions address, with persuasive rationale, the pertinent facts and evidence of record; the Board finds that the July 2010 VA examination report, with the April 2011 addendum, is the most probative evidence of record on this issue. Significantly, no competent medical opinion contradicts the VA examiner's conclusions or otherwise provides a basis for granting the Veteran's service-connection claim. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). In this case, however, the most persuasive evidence persuasively establishes that the Veteran had no symptom complaints attributable to arthritis at separation from service (at the September 1964 service separation examination) or proximately following service. He had no shown diagnosis of chronic arthritis during service or proximately thereafter, and the probative July 2010 VA examination report with an April 2011 addendum explains that the Veteran's in-service injuries were unlikely to have caused chronic arthritis. Although the Veteran's recent testimony may indicate a continuity of some symptoms, the Veteran's own previously documented descriptions of symptoms associated with his treatment for instances of back pain or muscle pain indicate no onset of pertinent continuous symptoms until many years after active duty military service. The evidence in this case does not show continuity of symptomatology associated with a chronic disability for the purposes of application of 38 C.F.R. § 3.303(b). The Board acknowledges the Veteran's belief that his arthritis is related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability. The Board finds that questions of identifying the specific etiology of complex internal pathologies such as arthritis are medical questions requiring specialized knowledge and expertise; such questions are not generally resolvable through information available to lay senses. Consequently, the Veteran's own assertions as to diagnosis and etiology of diabetes mellitus have no probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology). However, a determination concerning diagnosis of a specific complex internal disease or a determination concerning the possibility of a causal relationship between an injury or event and a complex disease pathology requires specialized training, and may therefore not be established by lay opinions on etiology or diagnosis. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Service connection for arthritis of the low back must be denied. ORDER The appeal is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs