Citation Nr: 1410142 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-34 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from March 1991 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for a low back disorder. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The documents within these systems, do not include any relevant, non-duplicative records other than an Informal Hearing Presentation submitted by the Veteran's representative and considered as part the Board's adjudication. FINDINGS OF FACT 1. The Veteran had an in-service injury of the back, resulting in a back strain. 2. The Veteran separated from service in October 1994. 3. In January 1999, the Veteran injured his back while in the workplace. His current back disorder is unrelated to service. CONCLUSION OF LAW A low back disorder was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for a Low Back Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Arthritis is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson 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. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). The Veteran contends that his current low back symptoms first manifest in service and have been continuous ever since that time. Service treatment records reflect that in May 1992 he strained his lower back while playing basketball, and exacerbated his symptoms while lifting weights. Radiographic imaging was ordered, however no abnormalities were seen. The Veteran was placed on a Temporary Profile due to "back pain probably strain." Service treatment records include numerous other complaints and treatment for orthopedic and medical conditions throughout the remainder of the Veteran's active service, but no complaints referable to the back. The Veteran separated from service in October 1994, and no separation examination is of record. The record reflects that in January 1999 the Veteran injured his back at work while moving a heavy cart from one end of a building to another. The cart was "extremely heavy" and the wheels became caught somehow. In attempting to free the cart, his back gave out and he was transported from his place of work to a hospital via ambulance. A subsequent Magnetic Resonance Imagining (MRI) study in March 1999 revealed mild to moderate degenerative disc disease at the L3-4 level and moderate degenerative disc disease at the L4-5 level. The degree of pathology was described as "advanced and disproportionate the [Veteran's] age." In 1999 the Veteran underwent laminotomy and microdiscectomy, and on post-operative follow-up in February 2000, the Veteran was "getting along well," but still had some residual discomfort in the back. The diagnosis at that time was herniated lumbar intervertebral disc left L4-5, status post-lumbar laminotomy and microdiscectomy. In September 2000 the Veteran's medical records, including records of his in-service low back injury and records of his work-place injury, were reviewed by a private physician. At that time, the Veteran reported that his in-service back injury had entirely resolved prior to the 1999 work-place injury. Based on his review of diagnostic records and the Veteran's reported history, the physician concluded that the Veteran's lumbar discectomy, left L5 radiculopathy, and chronic lumbosacral strain/sprain with myalgia were the direct result of the Veteran's 1999 work-place injury and that the Veteran had "no pre-existing conditions or disabilities" prior to the incident. On VA examination in January 2012, the Veteran reported onset of low back pain, and recurrent treatment, during service. Pain continued to worsen after service, becoming acutely worse during a "lifting/pulling incident at work." Following thorough examination, the Veteran was diagnosed with arthritis of the lumbar spine, including degenerative joint and disc diseases at the L1-2 level. In May 2012 the same examiner had the opportunity to review the Veteran's claims file. On review, she opined that although the Veteran was treated several times in 1992 for a back strain, he stopped receiving treatment until 1999 when he injured his back at work. With regard to the current severity of the Veteran's degenerative changes of the back, the examiner noted that the Veteran apparently had some "problems with obesity during and after military service which may have contributed to early [degeneration] of his lumbar discs, especially if combined with physically strenuous work such as repeated heavy lifting." The examiner concluded that in-service low back symptoms were episodic, not chronic, and that his current disc herniation with radiculopathy requiring surgery was caused by his work-related injury in 1999 - not by service. The Board finds that the Veteran does not have a current low back disorder related to his military service. The Veteran is certainly competent to report that current symptomatology has been continuous since in-service onset as pain and discomfort in the back are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board must also consider the credibility of such contentions. To that end, the record shows that following initial complaints of low back pain in May 1992, treatment records referable to the back end in July 1992. After that time the Veteran complained of numerous symptoms referable to other body systems, including his eyes, chest, ankle, and neck, but never mentioned his back. While the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms" in service and after service, see Barr v. Nicholson, 21 Vet. App. 303, 310 (2007), silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). The Board finds that, given the volume of post-1992 treatment records, it is reasonable to expect that had low back symptoms been on-going, the record would reflect some evidence of such symptomatology. Rather, the record is remarkably silent for low back symptoms until the Veteran's work-place injury in January 1999. With regard to the work-place injury, two separate healthcare professionals have considered the Veteran's history to include his in-service back symptoms and his post-1999 back symptoms. The Board finds it significant that in both cases, the conclusion was that the Veteran's post-1999 - and by extension his current low back symptoms -were related to an injury sustained at work in January 1999. In both cases, it was also concluded that any in-service back pain was self-limiting and not chronic. Examiners came to this conclusion in part due to the Veteran's own report of cessation of symptoms which he gave to the private physician in September 2000. Accordingly, the Board concludes that the Veteran's current back symptoms began in 1999, several years after separation from service, are unrelated to in-service complaints of back pain, and are otherwise unrelated to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in September 2009, prior to the initial adjudication of the claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private treatment and VA examination. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The duty to assist was further satisfied by VA examination and addendum opinion in January 2012 and May 2012, respectively. The VA examiner conducted a physical examination of the Veteran, was provided the claims file for review, took down the Veteran's history, considered private medical evidence, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. ORDER Service connection for a low back disorder is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs