Citation Nr: 1418655 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 12-32 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to April 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, continued a previous denial of entitlement to service connection for a back condition. The Veteran's November 2012 substantive appeal included a request for a hearing before the Board at the RO. In February 2013, the Veteran withdrew his hearing request in accordance with 38 C.F.R. § 20.704 (e) (2013). The Board will therefore proceed with a decision in this case. FINDING OF FACT The Veteran's back disability, diagnosed as thoracic and lumbar segmental vertebral dysfunction, was not present in service or until years thereafter and is not etiologically related to any incident of active military service. CONCLUSION OF LAW A chronic back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a chronic back disability as it was incurred due to a motor vehicle accident during active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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). The record establishes the first two elements of service connection. Private records of chiropractic treatment document complaints of low and mid back pain throughout the claims period. The Veteran was also diagnosed with thoracic and lumbar segmental dysfunction and restriction by private health care providers in March 2001 and September 2008. Service records do not document the back injury reported by the Veteran and are negative for complaints or treatment related to a thoracic or lumbar spine condition. However, a February 1974 record from the emergency room (ER) at the Army hospital in Fort Carson, Colorado, shows that the Veteran arrived via ambulance with complaints of an injured left knee following an automobile accident. A small bruise was observed on the left knee and no treatment was required. The claims file also contains the Military Police investigation report from the motor vehicle accident on February 1, 1974 involving the Veteran and several vehicles. The report notes that the other drivers were treated for injuries, but does not document any injuries incurred by the Veteran. The Veteran's spine was normal upon examination for separation on February 19, 1974, less than three weeks after the automobile accident. Although service records do not indicate a back injury was incurred in the February 1974 accident, the Veteran is competent to report injuries during service and the claims file verifies the February 1, 1974 motor vehicle collision. The Board will therefore resolve any doubt in favor of the Veteran and find that an in-service injury is established. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, service records do not indicate such a link. As noted above, service records do not document any back injuries or chronic back conditions and the Veteran's spine was normal upon physical examination in February 1974. No mention was made of a previous back injury or back pain. The Veteran also specifically denied experiencing recurrent back pain on the February 1974 report of medical history accompanying the separation examination. Thus, the contents of the Veteran's service records do not support his contentions regarding the incurrence of a chronic back condition during active duty service. There is also no competent medical evidence in support of the claim for service connection. None of the Veteran's health care providers have identified a link between his current chronic back disability and any incident of active duty service. The only medical opinion of record, that of a February 2014 VA doctor, weighs against the claim. The VA doctor noted that service records did not show any findings or complaints related to the back and the Veteran's spine was normal at the February 1974 separation examination. There is also no objective evidence of a chronic back condition until decades after the Veteran's discharge from service. The claims file contains private records of treatment for back pain dating from March 2001 when the Veteran was seen for midback pain associated with exercise. He provided a vague history of previous symptoms, but did not report the incurrence of a back injury during service. During a September 2008 initial chiropractic evaluation, the Veteran stated that he was involved in a motor vehicle accident in the 1970s with a low back and arm injury, but denied that the injuries were significant. Thus, the competent medical evidence of record shows that a chronic back condition was not present until decades after the Veteran's discharge from active duty service and does not establish a link between service and the claimed disability. Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's vertebral spine dysfunction is not a chronic disease listed in 38 C.F.R. § 3.309(a). However, the Veteran has reported experiencing back pain since active duty service. The Board will consider whether such statements support the claim for service connection under 38 C.F.R. §§ 3.303(a) and (d). Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). Once evidence is determined competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (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")). In this case, the Board finds that the Veteran's reports of a continuity of symptoms since the in-service motor vehicle accident are not credible in light of the contents of the service and post-service treatment record. While service records show that the Veteran was involved in a car accident on February 1, 1974, neither the treatment records nor the military police investigation report indicates that the Veteran incurred a back injury. The Veteran was transported to the Fort Carson Army Hospital, but his only injury of a left knee bruise was deemed too minor to require treatment. Service records do not document any complaints of back pain and the Veteran specifically denied experiencing recurrent back pain on the February 19, 1974 report of medical history. This report stands in direct contradiction to the Veteran's more recent statements that he began chiropractic treatment for back pain the day after the motor vehicle accident. The Board finds that the Veteran's statements provided in the context of contemporaneous medical treatment during service are much more credible than those provided for compensation purposes more than 30 years later. Similarly, the Veteran has never reported a history of continuous back pain since service to any of his private health care providers. He acknowledged a previous motor vehicle accident during a September 2008 chiropractic consultation, but characterized his injuries as affecting only the low back and arm, without mentioning the actual documented injury to the left knee. He also denied that the prior injury was significant and did not date the onset of chronic back problems to the accident. As noted above, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may also 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. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's statements that he began seeing chiropractors during service for back pain that has been present continuously for 30 years lacks inherent credibility in light of the absence of complaints or treatment for back pain during service, the Veteran's February 1974 denial of recurrent back pain, the lack of objective medical evidence of back pain until decades after service, and his failure to provide a similar history while seeking private treatment in more recent years. The Veteran's statements during and after service regarding the character of his injury have also been inconsistent. Thus, the Board finds that the Veteran's reported history of continuous back pain since service is not credible and is of no probative value. The Board has also considered the Veteran's statements connecting his current chronic back disability to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, his statements linking his current chronic back disability to service are outweighed by the other evidence against the claim. In sum, the post-service medical evidence of record shows that the first evidence of a chronic back disability was many years after the Veteran's separation from active duty service. In addition, the weight of the competent evidence, including the service treatment records, is against a nexus between the current back disability and the Veteran's in-service injury. The Board has considered the Veteran's reported continuity of symptomatology, but concludes that his statements are not credible. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2009 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the July 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained available records of treatment reported by the Veteran, including service treatment records and private medical records. The Veteran has not reported receiving any VA treatment for the disability on appeal. Furthermore, while the Veteran has reported that he received treatment with some private chiropractors in the 1970s and 1990s, in April 2013 statements the Veteran clarified that records from these providers were unavailable for procurement due to the death of the providers or the Veteran's inability to remember their names. Additionally, VA obtained a medical opinion in February 2014 in response to the claim for service connection. Although the VA doctor did not specifically address the Veteran's contentions regarding the presence of continuous back pain since service, the Board has determined that this history is not credible and is of no probative value. Thus, the VA doctor's lack of acknowledgement of the Veteran's statements does not render the opinion inadequate. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs