Citation Nr: 1343095 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-31 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1967 to June 1970. This matter is before the Board of Veterans' Appeals (Board) from a November 2007 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin (in pertinent part) reopened the Veteran's claim for service connection for a back disability but denied the underlying claim on the merits. In a January 2012 decision, the Board (in pertinent part) agreed with that reopening and remanded the underlying issue of entitlement to service connection for a back disability for additional development. The Veteran's claims file includes a paper file, as well as a Virtual VA (VVA) electronic claims file. The VVA file includes a December 2013 Informal Hearing Presentation and VA treatment records dated from July 2009 to April 2013, and other documents that are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In this regard, VA regulations provide that any pertinent evidence submitted by an appellant without waiver of RO consideration must be referred to the RO for review and preparation of a Supplemental Statement of the Case (SSOC). 38 C.F.R. § 20.1304 (2013). The VA treatment records were submitted without a waiver after the most recent SSOC was issued in April 2012. However, upon review of this additional evidence, the Board finds that it does not relate to or have a bearing on the service connection issue decided herein, or is duplicative of evidence already considered. The provisions of the regulation do not apply, and the case need not be returned to the RO. FINDING OF FACT A chronic disability of the back was not shown in service, arthritis of the back has not been diagnosed, and the preponderance of the evidence fails to establish that the Veteran's current back disability is related to any event, injury, or disease during service. CONCLUSION OF LAW A back disability was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice 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). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was mailed a letter in January 2012 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See April 2012 SSOC. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. Service treatment records (STRs) and identified, available post-service treatment records were obtained. In correspondence dated January 2007, the Veteran provided a list of medical providers with addresses. It is unknown which, if any, of these providers treated the Veteran's back. The AMC attempted to secure all such outstanding evidence by sending the Veteran a letter in January 2012 requesting these records or the required authorization to obtain the records. He did not respond, and further development could not proceed without his response. The duty to assist is not a one-way street. A claimant cannot passively wait for assistance in those circumstances where her cooperation is needed for evidentiary development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Neither the Veteran nor his representative has identified any other outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded the appropriate VA examinations to determine the nature and etiology of his claimed back disability. Most recently, the February 2012 examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file, interview of the Veteran, and examination with appropriate testing. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, this case was before the Board in January 2012 when it was remanded for additional development, to include obtaining treatment records and a medical opinion regarding the back disorder. As explained above, there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection Law and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran has not been diagnosed with arthritis. His back disability (strain) is not explicitly recognized as a chronic disease under 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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 Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also 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), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. STRs show that the Veteran complained of low back pain in September 1967, but no examination findings or diagnosis was noted. A February 1970 separation examination contains a normal clinical evaluation of the spine, and the Veteran denied any back trouble on the accompanying medical history report. In March 1970, he was treated for a knee injury that he sustained after falling out of a truck. No complaints or findings related to the back were noted. No chronic back disorder was indicated. STRs do not indicate any further complaints pertaining to the back. Following service, the Veteran submitted his original claim for service connection for a back disability in April 1973. He stated that he fell out of a truck in the fall of 1969 and injured his back, hip and leg. A May 1977 VA examination report notes no complaints of a back disability. Examination revealed no findings or diagnosis related to a back disability. The Veteran underwent cardiac bypass surgery in March 2005. After developing complications, he underwent sterna debridement and bilateral pectoralis reconstruction in April 2005. In correspondence dated March 2007, the Veteran stated that he has had back pain since a field exercise in service. He further stated that had several X-ray studies of his back and that "the doctors all say it is a[n] old injury." During an October 2007 VA spine examination, the Veteran stated that the September 1967 back pain was the result of "a war game situation where he jumped over a wall and fell onto his back." The Veteran reported that he was on crutches for several days after the injury. The Veteran also reported radiation of his back pain since his 2005 surgery. The examiner noted that the Veteran had gained weight since his 2005 surgery. The examiner diagnosed lumbar strain secondary to a pectoralis muscle displacement due to the partial removal of the Veteran's sternum and associated muscles after complications of bypass surgery in 2005, as well as his subsequent weight gain. After reviewing the claims file, the examiner noted that there had been no physical examination of the Veteran's back in September 1967 and that there was no evidence of medical treatment for the Veteran's back for 30 years, at which time complications arose from his bypass surgery. The examiner essentially opined that it was not likely that the Veteran's back pain was related to his military service. A February 2012 VA examination report notes that the examiner reviewed the claims fine (including STRs and lay statements) and examined the Veteran. The examiner opined that it is less likely than not that the Veteran's back disability was caused by or the result of service. He noted that STRs show only one incident of back complaints in 1967. Subsequent STRs were negative. The Veteran's separation physical did not list a complaint of back injury or problems or aggravation to a pre-existing back injury. The examiner acknowledged the Veteran's March 1970 complaints of injuring his back when falling from a truck, but noted that the STRs show that the Veteran only complained of a knee problem after this fall, not a back problem. The examiner stated that "[i]t is anticipated that the treatment records and a line of duty (LOD) would include back injury if incurred in service." The medical evidence of record shows that low back disability has been diagnosed. However, while the Veteran's STRs confirm that he was seen one time for low back complaints at the beginning of his military service, they are silent for any complaints of findings of any subsequent back complaints or any diagnosis of chronic back disability. The first medical evidence of such disability is nearly decades after service, after surgery in 2005. Indeed, while not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Put another way, there is no evidence of a chronic back disorder until many years post-service. Such fails to establish service connection on a direct basis under 3.303(a). Moreover, the Veteran has not been diagnosed with arthritis; such fails to establish service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. As to the etiology of current back disability, the Board finds that the October 2007 and February 2012 VA opinions are the most probative and persuasive medical evidence in this case, as they are based upon a complete review of the Veteran's entire claims file and examination of the Veteran and support their conclusions with detailed rationale. The VA examiners considered the Veteran's history of in-service complaints, as well as his stated contentions. After considering evidence of record, the VA examiners opined that the Veteran's back disability was less likely than not incurred in or caused by service, to include the complaints noted therein. The VA examiners' references to specific evidence (as noted above) make for persuasive rationale. There is no medical opinion to the contrary. The Board has not overlooked the Veteran's contentions provided in support of his claim. There is little question that the Veteran was seen with complaints of back pain in service. Such is documented in the record. Consideration has also been given to the Veteran's contentions that he has experienced low back pain since service. The mere absence of medical records does not contradict a veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The fact that there is no diagnosis of low back disability until after surgery in 2005 does not necessarily go against the Veteran's claim. However, and rather crucially, a VA examiner determined that the Veteran's history of chronic low back pain since service was not related to his current diagnosis of back strain. Rationale was again provided. Element (3) of the Savage analysis has not been met. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a back disability (here, strain) falls outside the realm of common knowledge of a lay person. Jandreau, supra (lay persons not competent to diagnose cancer). Identifying/diagnosing the presence of back disability necessitates testing to properly assess and diagnose the disorder. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Woehlaert, supra. That is, although the Board readily acknowledges that Veteran is competent to report symptoms of back pain, there is no indication that the Veteran is competent to etiologically to associate this pain to a diagnosable disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. Conversely, the VA examiners have the requisite medical training, expertise and credentials needed to render a medical opinion in this case. As noted above, the VA examiners noted that the Veteran denied back problems and had a normal back examination at separation. No subsequent complaints or finding related to a back disability were noted in the STRs. The 2007 VA examiner attributed the Veteran's back disability to his 205 surgery and weight gain. Reasons for the examiner's opinions were provided, as noted above. For these reasons, these medical opinions are the most probative and persuasive medical evidence in this case. In sum, service connection for a back disability is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine and in fact has resolved reasonable doubt in the Veteran's favor in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a back disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs