Citation Nr: 1502410 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 09-46 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to June 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. This appeal was previously before the Board in August 2012. The Board remanded it for additional development, and it has been returned to the Board for further review. A review of the Veteran's Virtual VA electronic claims file reveals records that are either irrelevant or duplicative of those in the paper claims file. A review of the Veterans Benefits Management System (VBMS) paperless claims processing system reveals a December 2014 statement by the Veteran's representative. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's current low back disorder is due to a disease or injury in service. CONCLUSION OF LAW The criteria for establishing service connection for a low back disorder have not been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA applies to the instant claim. VA is required to notify the claimant and his representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in July 2007. The claim was last adjudicated in January 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, Social Security Administration records, VA treatment records, private treatment records, and written statements of the Veteran and others. The Veteran was also afforded a VA hearing with the undersigned in May 2012. During the Board hearing, the undersigned explained the deficiencies and elicited evidence in the Veteran's case to include the type of evidence he would have to submit to cure these deficiencies. These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103(c)(2) (2014). Pursuant to the August 2012 Board remand, VA requested the Veteran's Social Security Administration records, the Veteran submitted lay statements regarding his low back disorder, and the Veteran was afforded a VA examination. All of these documents have been associated with the claims file. The Board therefore finds there was substantial compliance with the previous remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Analysis The Veteran claims that he began experiencing the symptoms of his current low back disorders while on active duty. The Veteran's service treatment records show that, following complaints of pain in his back, he underwent a pilonidal cystectomy in February 1969. After the cystectomy, the Veteran continued to complain of pain in his back, but physicians could not find any evidence of a physical cause for this pain. In April 1970, the Veteran requested discharge; the Veteran's treating physician opined that there was "strong evidence to suppose that this problem is psychologically determined" but that "this does not of course rule out the possible existence of organic factors." The physician further opined that discharge from service was "the only form of 'treatment' which will have any beneficial effects whatsoever on this syndrome" and recommended "an honorable discharge for reasons of unsuitability on the basis of the above diagnosis of passive aggressive personality." The Veteran's treating physician opined in May 1970 that the appellant "does not need nor deserve a profile of any sort" but placed him on limited duty pending discharge to conserve medical resources. The Veteran's June 1970 separation examination contains no mention of any back disorder and deems him qualified for "performance of duties of his rank at sea and/or in the field." The next mention of a back disorder in the Veteran's treatment records is in February 1989, nearly twenty years later. At that time, the Veteran underwent a right L5-S1 hemilaminotomy and microdiskectomy; he told the treating physician that he injured his back by lifting heavy objects at work in December 1988 and January 1989. The record contains additional history noting a motor cycle accident and other injuries, but makes no reference to a history of continued back pathology from past years. The Veteran eventually applied for disability benefits through the Social Security Administration. In connection with that claim, he continued to assert as late as September 2006 that his back disorder had its onset in 1989; it is only after filing the instant claim in July 2007 that the Veteran began to assert that his back pain had been continuous since 1969. During the May 2012 Board hearing, the Veteran testified that he had experienced continuous back pain from 1969 to the present and that he treated his pain with over the counter medications from 1970 to 1984, when he claims that he received an injection. There is no documentation in the claims file to confirm this treatment; the Veteran testified that all records went to a company physician whose name he does not remember and that the company for which the appellant worked at that time no longer exists. The Veteran also gave his account of the 1989 back injury and surgery. According to the Veteran, because he lacked health insurance and saw no other way to obtain treatment, he lifted heavy objects at work so that he could claim a workplace back injury. The Veteran was afforded a VA examination in November 2007. The November 2007 examiner wrote that medical records showed the 1984 injection; because the claims file contains no such medical record, it is probable that the examiner was repeating the Veteran's assertions regarding past treatment. The examiner diagnosed the Veteran with scoliosis and multilevel spondylosis with encroachment concerns at L4-5 and L5-S1. The examiner opined that it was less likely than not that these disorders were related to the Veteran's active service. The Veteran was afforded a second VA examination in October 2012. The October 2012 examiner gave the same diagnosis and added a diagnosis of degenerative disc disease of the lumbar spine. The October 2012 examiner opined that there was no relationship between a pilonidal cystectomy and any of these disorders because a pilonidal cystectomy "is a benign procedure involving debridement and excision of pilonidal sinus tracts" and the Veteran's current low back disorders are degenerative or developmental in nature. The examiner cited medical literature saying that back injuries are not important predictors of future disc degeneration. The only evidence in favor of the Veteran's claim of a nexus between his current low back disorders and his active service consists of his own statements and those of four other laypersons, who say that the Veteran has experienced back pain ever since his active service. The Board notes that laypeople are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, this claim turns on the medical matter of nexus to service, a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Laypeople without the appropriate medical training and expertise are not competent to render a probative (i.e., persuasive) opinion on a medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Hence, the lay assertions in this regard have no probative value; at most, they establish that the Veteran continued to complain of low back pain after discharge. Laypeople are not competent to provide a medical nexus opinion regarding the cause or aggravating factors of low back disorders. Moreover, the Board finds that the Veteran's statements are not credible. The Board has the discretion to make credibility determinations and otherwise weigh the evidence being submitted, including lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The passage of many years between service discharge and medical documentation of a claimed disability is also evidence against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record contains no medical evidence of a low back disorder between the end of the Veteran's active service and his reported workplace injury in 1989, 19 years later. The Veteran's testimony that he only claimed to have suffered an injury in 1989 as a way to obtain treatment for a disorder that had its origin in service is inconsistent with the record. The Veteran continued to ascribe his low back disorder to a 1989 workplace injury until 2006, 17 years after receiving the treatment that was his stated reason for making that claim. It is only after the Veteran decided to file a claim for entitlement to service connection for his low back disorders that the record contains any assertion by the Veteran that his low back disorders had their onset in service and continued to the present. For this reason, the Board also finds that the other lay statements alleging that the Veteran experienced continuous low back pain from the end of his active service to the present are inconsistent with the other evidence of record and thus not credible. The Board finds that it is more likely than not that the Veteran's current low back disorders had their onset in 1989, as the Veteran himself claimed for 17 years. In light of the evidence of record discussed above, the competent medical evidence weighs against a finding of a nexus between the Veteran's low back disorders and an in-service injury or event. Because the preponderance of the evidence is against the claim, there is currently an insufficient basis to allow for a grant of service connection for any low back disorder. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs