Citation Nr: 1415528 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 10-06 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a 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 April 1967 until November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which denied service connection for a 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 non-duplicative materials pertinent to the present appeal, other than an informal hearing presentation submitted by the Veteran's representative. FINDINGS OF FACT 1. The Veteran was subject to a combat-related, in-service explosion. 2. Symptoms of a back injury were not chronic in service, did not manifest until many years after separation from service, and no current back disorder is etiologically related to service. CONCLUSION OF LAW A current 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, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). To the extent that the Veteran's claim is based on the existence of arthritis of the spine, it is crucial to note that 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 presumptive 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. The Board finds that the Veteran does not have a current back disability which is etiologically related to service. The Veteran contends that in 1968, during the Tet Offensive, his unit that came under mortar or rocket attack. When a munition exploded nearby, the Veteran states that he was thrown into the air, landing on his head and back. Service treatment records show no complaints or treatment referable to the back throughout service and on separation examination in November 1968 the Veteran's spine was normal. On a report of medical history at separation, the Veteran affirmatively denied recurrent back pain, while making endorsements including headaches, dizzy spells, and eye trouble. Without resort to 38 U.S.C.A. § 1154(b) (West 2002), the Board finds that this event occurred as stated. In so finding that Board points to evidence in the Veteran's service personnel records which include a contemporaneous signed statement from the Veteran - and witnessed by a commanding officer - describing a mortar and rocket attack on his barracks in 1968; the same event which the Veteran now describes. Nonetheless, the mere occurrence of an in-service event does not warrant entitlement to service connection on its own. A post-service VA examination in March 1969 did not include any reports or findings of any low back condition. The Veteran sought treatment for back pain from a chiropractor in October 2003 - 35 years after separation from service. On initial evaluation, the Veteran reported that his current symptomatology had begun less than two weeks prior. The Veteran was at his place of employment, bending over, when he experienced a sharp pain in his lower back. He continued to work, hoping that the pain would "work itself out," but found that symptoms became worse and began to radiate down the right leg. In describing his past medical history, the Veteran reported that he had not experienced any back symptoms prior to the work-place incident. Following a thorough examination and evaluation, the private chiropractor opined that "based on history, symptomatology, and physical examination findings," the Veteran's back injury was sustained in the work-related accident endorsed by the Veteran. A magnetic resonance imaging (MRI) study in October 2003 showed that the Veteran had a left paracentral and foraminal disc herniation at the L4-5 level in addition to generalized degenerative disc disease throughout the lumbar spine. In May 2004, the Veteran was evaluated by a private physician. In reporting his general medical history, the Veteran indicated that he had had "waxing and waning low back pain over the years, because he does construction," but that he had not experienced "significant problems" prior to the October 2003 accident. Following an evaluation during which the Veteran exhibited symptom magnification and put forth an "invalid effort," the private physician concluded that the Veteran had a lumbar disc herniation at the L4-5 level which was an "industrial related condition" referable to the October 2003 work-place accident. Generally, from 2003 onward, the record reveals continuing complaints and treatment regarding the back. The Veteran continued to inform private healthcare professionals that his back pain began in October 2003 following a work-place injury, and even when discussing the in-service trauma which he now contends caused his back injury, the Veteran failed to endorse resulting back symptoms. For example, in April 2008 the Veteran reported that he had been involved in an explosion during service which caused him to be thrown to the ground, and although he was then seeking cardiac treatment, he nonetheless endorsed post-trauma symptoms of visual problems and headaches - but not back symptoms. Based on the foregoing, the Board concludes that while the Veteran was subject to a blast during service, a chronic back disorder was not incurred during service, and a current back disorder is not related to service. The Veteran's appeal relies heavily on his own lay statements to substantiate his claim. 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 is competent to endorsed in-service onset of back pain, and continuous symptomatology thereafter as pain is capable of lay observation. Barr, 21 Vet. App. 303. However, the Board must also consider the credibility of such an endorsement. Here, the Veteran has both failed to report ongoing back symptomatology since service when otherwise affirmatively reporting other symptoms and affirmatively denied back pain - such as on separation from service or on VA examination in 1969. Both the former and the latter reduce the credibility of the Veteran's current endorsement of ongoing symptomatology sine the in-service explosion as 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) ((citing Fed. R. Evid. 803(7)). Where the Veteran has purportedly been providing complete medical histories to health care professionals in the treatment of his back, the lack of endorsement of pre-2003 back symptoms serves only to reinforce his affirmative denials of pre-2003 back symptoms such as on initial treatment in 2003. The Board is cognizant of a December 2009 letter from one of the Veteran's treating physicians in which he stated that the Veteran now endorses an in-service back injury in 1968 which was made worse by the subsequent work-place injury in 2003. However, histories and complaints are not transformed into medical evidence just because a veteran tells them to a competent medical professional who writes them down. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board is left with the Veteran's contradictory statements regarding onset of back symptomatology which are weighed against competent credible evidence that the current back pain is related to a post-service 2003 work-place injury. The Board finds that the competent credible evidence of post-service etiology is more probative than the Veteran's contradictory lay statements regarding in-service onset and his non-competent statements regarding etiology to service. With regard to the generalized degenerative disc disease throughout the lumbar spine on MRI in 2003, an October 2005 physician determined that the Veteran's lumbar disc disease was preexisting and unrelated to the 2003 work-place injury. While this evidence does suggest that some disease process began prior to 2003, the record nonetheless shows that the Veteran's back symptoms did not onset until many years after service. Furthermore, there is no competent, probative evidence that the Veteran's generalized degenerative disc disease is related to his service. Based on the foregoing, 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 July 2008, 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 . . . or all [Social Security Administration] disability 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 treatment and personnel records as well as records of private and VA treatment in addition to records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran has identified post service chiropractic but he did not seek VA's assistance or provided authorization for VA to obtain them on his behalf. The Veteran was not afforded a VA examination with respect his back. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Here, service treatment records reflect no complains or treatment referable to the back, and on separation examination the Veteran affirmatively denied back pain, and his spine was normal. Following separation from service, the records first reflects post-service treatment or complaints of the currently claimed back disorder in 2003 following a work-place injury - 35 years after separation from service. In spite of voluminous treatment records, the only evidence indicating that the Veteran has a current back disorder referable to service, are the Veteran's own endorsements made in pursuit of VA compensation. Conclusory generalized statements regarding the nexus between a disability and service are not enough, in isolation, to entitle a veteran to a medical examination under § 5103A(d)(2)(B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). "Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case." Id. As the above discussion highlights, the Board has not been left without sufficient competent evidence on file to make a decision on the claim without resort to a VA examination. Rather, the evidence clearly demonstrates that - in spite of an in-service incident wherein the Veteran was thrown following an explosion -the currently claimed disorder began many decades after service and is not related to service. In sum, there is sufficient competent evidence to make a decision on the claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for a back disorder is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs