Citation Nr: 1431908 Decision Date: 07/16/14 Archive Date: 07/22/14 DOCKET NO. 11-33 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability, diagnosed as degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDING OF FACT It is less likely than not that the Veteran's low back disability is related to service. CONCLUSION OF LAW The elements for entitlement to service connection for low back disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a)(3), 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (2013); 38 C.F.R. § 3.159(b)(2013). As to the issue of entitlement to service connection for low back disability, the duty to notify was satisfied prior to the initial RO decision by way of a letter sent to the Veteran in August 2010 that informed him of his duty and the VA's duty for obtaining evidence. The letter also provided an explanation of the evidence and information required to substantiate the Veteran's service-connection claim. In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's STRs and service personnel records have been obtained, and the VA obtained the Veteran's VA treatment records and private medical records. The Veteran has also submitted lay evidence in support of his claim. Additionally, the VA complied with its duty to assist with regard to those of the Veteran's private medical records that were determined to be unavailable. Where a claimant's records are lost or destroyed, VA has a "heightened" duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining this alternative evidence. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). In this case, the RO advised the Veteran that his private medical records from Greenview Regional Hospital were unavailable because they were purged in accordance with the provider's regular records retention policy, and informed him of the alternative types of evidence he could submit to support his claim. See March 2011 VA Letter. The Veteran has raised a question of whether the correct VA medical records were sought. See December 2011 Substantive Appeal Form 9. The Board finds that the VA complied with its duty to assist in this regard. The record demonstrates that the RO contacted all of the VA medical providers identified by the Veteran and requested records from the periods of treatment the Veteran identified. The RO then notified the Veteran of the steps taken to obtain his treatment records, the records that were received, the records that were unavailable, and the alternate sources of evidence the Veteran could submit to support his claim. See April 2011, March 2011, January 2011, and August 2010 VA Letters. As such, the VA complied with its duty to assist. VA's duty to assist also requires it to provide a medical examination or obtain a medical opinion if one is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). The Veteran was provided with a VA examination that included a medical opinion in February 2011. February 2011 VA Examination Report (VA Examination). The Board finds that the examination is adequate as it included an interview with the Veteran, a review of the record and relevant history, and an appropriate physical examination. See id. Moreover, the examiner provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the VA met its duty to provide a medical examination or opinion pursuant to 38 C.F.R. § 3.159(c)(4)(i) in connection with this claim. The Veteran withdrew his request for a hearing before the Board, and thus has waived his right to such a hearing. The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service connection The Veteran seeks disability compensation in connection with his low back disability, diagnosed as degenerative disc disease of the lumbar spine. See August 2010 Claim. The Veteran claims that this disability had its onset in service, being related to injuries he sustained during service. The Veteran points to two potential precipitating events which he believes caused his current low back disability: a 1979 basketball game and a 1982 car accident. See id; see also July 1979 & October 1982 STRs. Direct Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). This means that the facts must establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of an injury or disease; and (3) a nexus between the two. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of all evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the claimant's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board concedes the first two elements of service connection: a current disability and an in-service injury. The record clearly demonstrates that the Veteran currently suffers from degenerative disc disease, and that he sustained an injury to his low back during service. The key issue for decision in this appeal is whether the Veteran's current low back disability had its onset in service or is related to the injury he sustained during service. The Board finds that the evidence of record fails to establish the nexus element by an equipoise standard. The only competent medical evidence of record, the report from the February 2011 VA examination, is unfavorable to the Veteran. See February 2011 VA Examination. After considering the Veteran's history, based on a review of his STRs and VA treatment records, the examiner opined that it was less likely than not that his current low back disability was related to the injuries he sustained during service. In reaching this conclusion, the examiner considered the injuries sustained by the Veteran during service and his treatment for low back issues. The examiner reported that the Veteran was seen intermittently during service for low back pain assessed as lumbar strain, sprain or contusion, and was diagnosed with a lumbar contusion after a motor vehicle accident in 1982. See id. The examiner pointed out that an x-ray taken of the Veteran's lumbar spine at the time of his car accident was negative for fracture, and the treatment records do not mention any abnormalities in the spine. See id. Moreover, the examiner noted that the Veteran's separation exam in 1983 did not diagnose a chronic low back condition and spine exam was normal. See id. Based on these facts, in addition to the absence of any complaints of or treatment for low back pain for approximately ten years after separation, the examiner opined that it is less likely than not that the Veteran's current lumbar spine degeneration and degenerative disc disease is due to military service. See id. The Board considers the examiner's opinion highly probative as it is predicated upon a thorough clinical examination and evidentiary review, and is supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing the three factors the Board must consider in determining the probative value to be assigned to a medical opinion: (1) whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, (2) whether the medical expert provided a fully articulated opinion, and (3) whether the opinion is supported by a reasoned analysis). Moreover, the examiner's opinion is uncontroverted by any other competent evidence of record. Although the Veteran argues that his low back disability had its onset in or is related to injuries he sustained in service, he is not competent to give a medical opinion as to the etiology of his low back injury, which requires clinical expertise. See Jandreau v Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (noting that "sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran is competent to report on the onset and recurrence of his symptoms; however, he does not have the necessary expertise to opine that his current degenerative disc disease is causally related to the injuries he sustained during service. Additionally, the Board finds that the Veteran's recent statements that he has been experiencing symptoms of a low back disability since 1982 have little probative value. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board finds that the Veteran's recent statements have little probative value because they were made after he submitted his claim for benefits and he has provided an inconsistent history in this regard. First, the record demonstrates that the Veteran first claimed persistent back pain from the time he left service after he initially made a claim for service connection for this disability. When he first presented to a VA medical center in 1993 for treatment in connection with his low back condition, the Veteran reported "a three week history of pain" in his low back. See October 1993 Medical Record. The record further indicates that the Veteran reported having "some low grade back pain in the past but nothing severe as this." Id. A medical record from September 1994 states that the Veteran reported "a [history] of back pain since 1978," but does not state whether the Veteran reported continuing back pain since that time, and could even pre-date service. See September 1994 Medical Record. It was not until the Veteran asserted a claim for compensation benefits that he first reported having continuing back pain since his separation from service. This factor negatively impacts the credibility of such claims. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (a witness's credibility may be impeached by a showing of interest, bias, or inconsistency); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for purposes of medical treatment may be afforded greater weight because there is a strong motive to tell the truth to receive proper care). Moreover, despite the Veteran's recent reports that he experienced continual low back pain between the date of his separation and 1993, there is no evidence that the Veteran sought treatment for a low back disability during this time. The fact that the Veteran did not seek treatment for a low back disability for approximately ten years after separation from service undermines the probative value of his current assertions of a persistent and recurrent low back condition. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (quoting United States v. Robinson, 544 F.2d 110, 114 (2d Cir. 1976) as recognizing the widely held view that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (emphasis added)); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Thus, the Board affords little probative weight to the Veteran's statements. In light of the above analysis, the Board finds that the Veteran has failed to establish that it is as least as likely as not that his low back disability had its onset in service, or is related to any injury he sustained during service. As such, the record fails to establish entitlement to service connection for this condition on a direct basis. Presumptive Service Connection The Veteran may also establish service connection for certain chronic diseases on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309(a) if the evidence shows (1) that his disability manifested to a compensable degree within one year after his separation from service, or (2) continuity of symptomatology since leaving service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, and 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). While such chronic diseases include degenerative joint disease, they do not expressly encompass the degenerative disc disease at issue on appeal. See 38 C.F.R. § 3.309(a). Even assuming, for the sake of argument, that the Veteran's disability was among the chronic diseases enumerated under 38 C.F.R. § 3.309(a), he would not be entitled to presumptive service connection under these theories because the evidence does not support a finding that the Veteran's degenerative disc disease occurred during service or within one year after separation, or that he has exhibited continuity of symptomatology since that time. First, although the Veteran's STRs demonstrate that he suffered from a low back injury during service, the records do not show that he suffered from a chronic low back disability during that time or that he suffered from degenerative disc disease. Instead, the record shows that the Veteran had a low back strain in 1979 that resolved, and later had a low back contusion in 1982 which resolved prior to separation. See July 1979 STRs; see also October 1982 STRs. Furthermore, as discussed above, there is no credible evidence to support a finding that the Veteran had a low back disability within a year after separation from service. Other than the Veteran's statements made in connection with his claim for benefits, there is no evidence that he began exhibiting symptoms of degenerative disc disease within one year of separation from service, nor is there any evidence that his symptoms have persisted since his discharge. Even assuming that the Veteran did have low back pain within a year after his discharge from service, there is no evidence that he had a low back disability that manifested to a compensable degree. On the contrary, it is well-settled that "pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which [VA compensation benefits] may be granted." See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). For these reasons, the Veteran cannot establish that he is entitled to presumptive service connection for his low back disability. ORDER Service connection for a low back disability, diagnosed as degenerative disc disease, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs