Citation Nr: 1342809 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 07-34 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an upper back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The February 2008 rating decision denied service connection for upper and low back disorders. In March 2009, the Veteran testified before a Veterans Law Judge via videoconference, who is no longer employed by the Board. The Board offered him another hearing, and the Veteran accepted. In July 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are associated with the claims file. A review of the Veteran's Virtual VA claims file and Veterans Benefits Management System electronic file shows that they contain only evidence that is duplicative of that already contained in the paper claims file or irrelevant to the issues on appeal. The Veteran's claims were previously before the Board and remanded in August 2009 and September 2011. As will be explained in further detail below, there was compliance with the remand directives, and the Board may proceed with a decision on these claims. In September 2011, the Board also decided claims regarding peripheral neuropathy and entitlement to a total disability rating. Therefore, these are no longer in appellate status, and this decision has been confined to the issues stated above. FINDINGS OF FACT 1. The Veteran has not been currently shown to have an upper back disorder that manifested in service, arthritis of the upper back that manifested within one year thereafter, or an upper back disorder that is causally or etiologically related to his service. 2. The Veteran has not been currently shown to have a low back disorder that manifested in service, arthritis of the low back that manifested within one year thereafter, or a low back disorder that is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. An upper back disorder was not incurred in or aggravated by active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. A low back disorder was not incurred in or aggravated by active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2006 that fully addressed all notice elements and was issued prior to the February 2008 initial adjudication of the claims. Accordingly, the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained service treatment records, VA outpatient treatment records, and reports of VA examinations. The Veteran also submitted private medical records and lay statements in support of his claims, and he presented testimony at two Board hearings. The Veteran and his representative have not identified any outstanding records that are pertinent to the claims being decided herein. The Veteran was afforded VA examinations in August 2010, June 2011, and November 2013. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the examinations, when taken together, were adequate, in that they were conducted by medical professionals who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. The November 2013 VA examiner provided an opinion and rationale based upon an accurate review of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also finds that the RO has complied with the Board's August 2009 and September 2013 remand directives. Specifically, the Veteran's VA outpatient treatment records were obtained and associated with the claims file. In addition, he was afforded VA examinations that, when taken together, are compliant with the specific remand directives. As such, no further development is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, as previously noted, the Veteran was also afforded an opportunity to present testimony at two hearings before the Board. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). In this case, the undersigned Veterans Law Judge and the Veterans Law Judge that conducted the March 2009 hearing set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis At the outset, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disabilities for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. 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, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(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 arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that 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). 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, (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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for an upper or low back disorder. The Veteran's service treatment records show that he denied a history of recurrent back pain when he was examined for entry into service in January 1968. His spine was also found to be normal upon clinical evaluation. When he was examined in April 1970 for separation, he did report a history of back trouble, and a notation indicated that he had pain in the back part of the thorax nearly all of the time. However, upon evaluation, his spine was normal. In written and oral statements, the Veteran has described having to carry heavy loads during service. His separation document shows that he was a stock control account specialist in service. The Board finds that the Veteran's description of his in-service activity involving repeatedly carrying heavy loads is credible and consistent with the military occupational specialty noted in his personnel record. Therefore, evidence of an in-service event is shown. In addition, the Board finds that the evidence shows that the Veteran has currently diagnosed disorders of both the upper and low back. In this regard, private treatment records dated in April 2009 show diagnoses of degenerative disc disease of both the cervical and lumbar spine. The August 2010 VA examination report also contained a diagnosis of lumbar spine osteoarthritis/degenerative joint disease, and a January 2011 VA outpatient record indicates that the Veteran had degenerative joint disease of the cervical spine on x-ray. As such, this element needed for establishing service connection is also shown. Thus, the remaining question is whether either currently diagnosed spine disorder is related to service. For the following reasons, the Board finds that they are not. Initially, the Board finds that a diagnosis of arthritis of either the upper or low back is not shown during service. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. While there is evidence that the Veteran complained of back pain at the time he separated from service, the examination of the Veteran's spine was normal, and there is no finding of arthritis at that time. Furthermore, the pain the Veteran described in his back, which was behind his thorax, is not sufficient to identify the disease process that was only recently diagnosed as arthritis of the cervical and lumbar spine. As the November 2013 VA examiner pointed out, the pain documented in the Veteran's service records is midthoracic back pain, not neck or lower back pain, which is where his arthritis has now been found. Therefore, chronicity is not established in service. There is also no lay or medical evidence showing or suggesting that the Veteran had arthritis of the upper or low back within one year of separation from service. The Board acknowledges the Veteran's contentions regarding when his upper and low back pain began. The Veteran is certainly competent to report as to the observable symptoms he experiences, as well as when a medical provider provided a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is also competent to report what he may have been told regarding the onset of back disorders. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he had back pain in service and experienced it since that time, which he asserted during both his March 2009 and July 2013 Board hearings. However, his allegations are inconsistent with the contemporaneous record. As previously noted, despite his reported complaints, the Veteran's spine was found to be normal upon examination at the time of his separation from service. As such, there is actually affirmative evidence showing that he did not have an upper or low back disorder at the time of his separation from service. In addition, the Veteran has made inconsistent statements regarding whether he incurred a specific injury in service and whether he sought treatment during service. During his August 2010 VA examination, the Veteran reported that he was not seen for his back during service, and he could not identify a specific injury that caused his condition. However, during his July 2013 Board hearing, the Veteran reported that he had a specific injury to his back, sought treatment at the dispensary during service, and was put on light duty for this pain. There is no evidence of this injury or the Veteran having been given light duty documented in the service records. Nevertheless, the Veteran has given varying accounts of his in-service symptomatology and treatment. Therefore, these statements cannot be considered credible. The one contemporaneous and credible piece of evidence regarding symptomatology is the report of medical history dated in April 1970, which shows that the Veteran was experiencing pain behind his thorax that he described as constant. Furthermore, the Veteran has asserted that his back pain has been present since he separated from service. However, the Board also finds that these statements are not credible. Prior to filing a claim regarding his upper and low back disorders, the Veteran filed two claims unrelated to these appeals. Silence in this instance, when the Veteran was otherwise affirmatively seeking disability benefits on another basis, is negative evidence with regard to whether the Veteran's back symptomatology has existed since service. Accordingly, the Board finds that the Veteran's reported history regarding the onset and continuation of his back pain is not credible. There is no other evidence of record suggesting that the Veteran's upper or low back symptoms have existed since service, so continuity of symptomatology is not found. In addition to the lack of evidence showing that arthritis manifested during active duty service or within close proximity thereto, the more probative evidence of record does not link a current diagnosis of any upper or low back disorder to the Veteran's service. In this regard, the Board finds that the opinion provided by the VA examiner in November 2013 is more probative than the Veteran's lay statements as well as the other medical opinions of record. While lay persons can be competent to opine on the etiology of a disability in some instances, in this case, the reasoned opinion of a medical professional is afforded more probative weight than the Veteran's bare assertions that his currently diagnosed disorders are related to his having to carry heavy loads during service. The VA examiner, who is an orthopedic surgeon, has experience, education, and knowledge that the Veteran, as a layperson, is not shown to have. The examiner reviewed the Veteran's reported history as well as the other evidence of record and provided a rationale for his opinion that the Veteran's upper and low back disorders were less likely than not caused by or a result of service. Specific reference was made to the Veteran's back pain complaints upon separation in April 1970, and it was explained that this pain was in the Veteran's mid-thorax and not in his upper or low back, which is the location of his current complaints and diagnoses. The Board notes that the November 2013 VA examiner's opinion is also more probative than those provided by VA examiners in August 2010 and June 2011 because the November 2013 VA examiner correctly referenced and considered the Veteran's complaints of pain in his back that were noted in an April 1970 service record. As such, the examination and opinion provided in November 2013 is competent, credible, consistent with the record, and the most probative evidence of record on the matter of whether the Veteran has an upper or low back disorder that is related to service. Therefore, the Board also finds that an upper or low back disorder has not been shown to be causally or etiologically to an event, disease, or injury in service. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for an upper or low back disorder is not warranted. ORDER Service connection for an upper back disorder is denied. Service connection for a low back disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs