Citation Nr: 1600424 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 09-28 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Brandon T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1973. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in which the RO declined to reopen a claim for service connection for a lumbar spine disability. In April 2011, the Veteran testified before the undersigned Acting Veterans Law Judge during a hearing conducted via videoteleconference. A transcript of the hearing has been associated with the claims file. In February 2014, the Board reopened the claim and remanded for additional development to include a VA examination. Subsequently, the Board again remanded this claim in January 2015 in order to obtain an addendum opinion statement from the VA examiner. That development having been completed, this claim is once again before the Board. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System claims processing system. The Board also notes that, subsequent to the most recent adjudication of this claim by the agency of original jurisdiction (AOJ), additional evidence consisting of military personnel records was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board finds that these additional documents are not pertinent to this decision, and so the Veteran is not prejudiced by the Board proceeding to a decision at this time. FINDING OF FACT The Veteran's lower back disability is not shown to be related to any disease, injury, or incident that occurred during service, including being struck by a large barrel during transport, and such disability did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection of a lumbar spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board finds that the VA has satisfied its duty to notify under the VCAA. Specifically, a notice sent in February 2009, prior to the April 2009 unfavorable decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and the VA's respective responsibilities in obtaining such evidence and information. Additionally, the letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Relevant to the duty to assist, the Veteran's service treatment records, Social Security Administration records, post-service VA records, and identified private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. As for the April 2011 hearing, the Court has held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing must fully explain the issues, and they must suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the Veteran's hearing was held with respect to whether new and material evidence had been presented which supported reopening of the Veteran's 2005 claim for service connection. During this hearing, the undersigned advised the Veteran that the relevant issue was whether such evidence had been presented into the record as well as the evidence necessary to substantiate his claim for service connection. The undersigned also identified certain records, including Social Security Administration records, which were relevant to the question of new and material evidence, as well as to the issue of service connection. Moreover, neither the Veteran, nor his representative, have asserted that the VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), as they existed at the time of the hearing. Accordingly, the Board can adjudicate the claims based on the current record. Furthermore, the Veteran was afforded VA examinations and addendum opinion in May 2014 and February 2015 with respect to the issue decided herein. After the examination, the VA examiner offered opinions with an addendum, supported by clear rationale, with regard to the etiology of the claimed disorder. The Board finds that these opinions, in aggregate, are adequate to decide the issues, as they are predicated on a review of the claims file, which includes the Veteran's statements, his available service treatment records, SSA, and post-service treatment records. Additionally, the opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examinations and opinions has been met. The Board also finds that there was substantial compliance with the February 2014 and January 2015 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Board notes that this claim was remanded in February 2014 so that the Veteran could be provided with a VA examination. That examination was had in May 2014, thus substantially complying with the February 2014 remand order. This case was then remanded in January of 2015 in order to obtain an addendum opinion from the VA examiner as to the etiology of the Veteran's disability, with specific reference to the Veteran's Social Security records. This opinion was received in February of 2015, thus complying with the January 2015 remand order. Accordingly, the Board finds that there has been substantial compliance with the July 2011 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims on appeal. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran served in the United States Air Force as a Protective Coating Specialist. In his May 2005 claim, the Veteran contended that his lumbar spine disability began during his service in 1970 while he was stationed in Korea. During his April 2011 hearing testimony, the Veteran explained that in 1970, during his service in Korea, he was working, as part of his duties, to unload large barrels of tar from a truck when one barrel fell from the truck and struck the Veteran in the back. The Veteran contended that this incident was the cause of his current lumbar spine disability, and he contended that since that incident, he has experienced regular and recurrent lower back pain. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection for a given disability may be established when a chronic disease listed in 38 C.F.R. § 3.309(a), such as arthritis, manifests itself to a compensable degree either during service, or within one year of discharge from service, so long as the veteran in question served 90 days or more of active service during a war period, or after December 31, 1946. 38 U.S.C.A. §§ 1101, 112, 1137; 38 C.F.R. §§ 3.307, 3.309. When such conditions are met, such a disease is presumed to have been incurred in service. Such a presumption of service connection may also be established when a continuity of symptomatology is present from the time of service to the present, consistent with 38 C.F.R. § 3.303(b). See 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In establishing continuity of symptomatology, lay evidence is competent to establish the presence of observable symptomatology, and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, lay evidence is competent to establish a diagnosis only when a layperson (1) is competent to identify the medical condition; (2) is reporting a contemporaneous medical diagnosis; or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To that end, lay statements that a service event or illness caused a current disability are insufficient to establish service connection. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In forming this decision, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical evidence and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, though such an absence may be a factor. Davidson v. Shinkseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors in assessing lay evidence include the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As was noted above, the Veteran contended that he has experienced regular lower back pain consistently since 1970, when he was struck in the back with a very large barrel during his service duties. This contention was expressed during the Veteran's hearing testimony, and he has repeated this contention to several of his treating doctors since that time, as is reflected in several medical records contained in the claim file. The timeline of events reported by the Veteran is consistent with his service treatment records. These records indicate that the Veteran was given an entrance examination in April 1969, at which time he reported, and the examination found, no back problems. Then, in July 1970 the Veteran's service treatment records include a notation that he "pulled [his] back muscle" moving barrels from truck. At that time, the Veteran was diagnosed with an acute back strain, and he was placed on bedrest for 48 hours. Three days later, the Veteran was returned to duty with no medical follow-up or restriction of duty. The next relevant notation in the Veteran's service records came in May 1972, when he was diagnosed with a lumbrosacral sprain. The Veteran next was given an exit examination in January 1973, during which he denied any recurrent back pain. The claim file reflects a gap in the Veteran's medical treatment, between his discharge and 2004. The Veteran's VA medical records show that in July 2004, December 2004, and July 2005 he reported no back pain to his doctors during outpatient treatment encounters. Since his discharge from the Air Force, the first report of low back pain from the Veteran was in 2005 when he filed his initial claim for service connection. The Veteran's outpatient medical records, however, contain no reference to any back pain until July 2009, when he reported back pain as part of a preoperative assessment for a cardiac procedure. The Veteran's medical records also include a Social Security disability questionnaire in which the Veteran stated that he has only had pain which limited his functionality since June of 2009. In a December 2009 Social Security examination, the examiner noted the Veteran's report of consistent low back pain since an accident in 1970 and some limitation of motion of the spine. The examiner diagnosed "chronic lumbar strain." The Veteran underwent an imaging study of his lumbosacral spine in October of 2010, which did confirm "mild disc narrowing of L4-L5", though the rest of the study showed nothing abnormal, and the Veteran was found to have a "basically stable lumbar spine." However, in examinations of the Veteran in July 2009, August 2009, December 2009, April 2010, and May 2014, clinicians routinely found the Veteran to have normal ranges of flexion and extension of the spine, gait, and straight-leg raising abilities. The record also includes the evidence taken during the Veteran's April 2011 hearing, in which he testified regarding the circumstances of his 1970 injury. The Veteran also restated his contention as to the development of his symptoms since that incident. As was noted above, the Veteran was given a VA physical examination in May 2014. After this examination, the examining doctor diagnosed only chronic lumbar muscle strain, very mild disc narrowing, and painful range of motion and provided an opinion that the Veteran's current lower back pain was "not related to events in military service and they are not a continuation of symptoms in military service." This opinion was premised upon the examiner's own direct examination of the Veteran, as well as the conservative nature of the Veteran's treatment in 1970 and 1972; the Veteran's denial of recurrent back pain during his separation examination; and the Veteran's failure to report any back pain in 2004 and 2005 medical records. This opinion from this examiner was then reaffirmed in February 2015 after another review of the claim file, subsequent to a remand by the Board in January 2015. Specifically, at this time the examiner stated his opinion that "the current chronic lumbar muscle strain did not have its onset in service, nor is it otherwise the result of a disease or injury in service." The examiner also specifically disagreed with the December 2009 Social Security examination, given the Veteran's documented denials of chronic back pain prior to 2005. That being the relevant evidence in this case, the Board finds that the Veteran does have a current lumbar spine disability, including variable diagnoses of arthritis, lumbar muscle strain, and a narrowing of the lumbar vertebrae. This conclusion is well supported by the Veteran's own complaints, the physical examinations of the Veteran finding some painful range of motion in the spine, and the radiographic examination report of the Veteran's lower back which did find a narrowing of his L4-L5 vertebrae. The Board also finds the Veteran's statements regarding the occurrence of his in-service incident moving barrels to be credible. The Veteran is competent to report the events of his service, which do correspond, in this case, with his service treatment records. Still, the Board also notes the discrepancy between the Veteran's statement during the hearing that his back was hurt when the barrel struck him, and the description provided in the Veteran's service treatments records, which indicates that he "pulled" his back while moving the barrels. As for the nexus between the Veteran's current disability and the in-service incident, the Veteran is not competent to make the medical determination that the two events are connected. The only such opinions contained in the record which were offered by a qualified source are the opinions of the VA examiner who stated his opinion in May 2014 and February 2015 that no such nexus existed between the Veteran's disability and his in-service incident. The Board places great probative weight on the opinions of the VA examiner from May 2014 and February 2015. These opinions were premised not only upon a single examination of the Veteran, but also upon a complete longitudinal review of the Veteran's records. Such a comprehensive review of the Veteran's relevant medical history lends significant credence to these opinions. Furthermore, these opinions were supported by a clear exposition from the examiner as to the bases upon which his opinions rest, all of which provide sound support for such an opinion. However, as was also discussed above, the Veteran contended in his hearing testimony that he has experienced a continuity of symptomatology since his in-service incident. Such a continuity, if established, would be sufficient to raise the presumption of service connection for the Veteran's lumbar spine disability, which was diagnosed in May 2014 as arthritis, a chronic disease under 38 C.F.R. § 3.309(a). Generally, the Veteran is competent to speak to the symptoms that he experienced over time. However, his contentions that he has experienced recurrent lower back pain since his in-service incident are undermined by certain evidence in the record. First, it is significant to note that the Veteran denied any recurrent back pain symptoms during his separation examination in January 1973. This fact casts appreciable doubt upon the Veteran's allegation of continued symptomatology. During his April 2011 hearing testimony, the Veteran stated that he did not report any recurrent back pain during this examination because he "wanted to get out of the service", and he feared that his release would be delayed if he complained of back pain. This explanation, however, is now in the Veteran's interests, and so it carries less probative weight when compared to the Veteran's contemporaneous report to a medical professional during his separation examination. Secondly, the Veteran's contention of continuity of symptomology is also undermined by his more recent denials of any back pain in 2004 and 2005. These denials indicate that the Veteran has not consistently been experiencing back pain since his 1970 in-service incident, particularly when combined with his denial of symptoms in his separation examination. Moreover, these 2004 and 2005 denials also carry significant probative weight because they were made in the course of medical treatment, and therefore are likely highly credible. Finally, the lack of medical evidence from the time between the Veteran's discharge and 2004 also undermines his contention that he has experienced symptoms since his 1970 incident. This is particularly true in light of the Veteran's August 2009 statement that he had only had pain that limited his activities since June 2009. As was discussed above, while the lack of contemporaneous corroborating medical evidence cannot be the sole factor in dismissing lay testimony as to symptomology, such a lack can be one of many factors, and when considered alongside the Veteran's contradictory statements through the record, this lack of corroborating evidence does also work to undermine the credibility of the Veteran's assertion that he has continuously experienced pain since his in-service incident. Accordingly, it is less likely than not that the Veteran has experienced a continuity of symptomology since 1970. Therefore, the Veteran is not entitled to a presumptive service connection for his arthritis. As such, the probative weight of the evidence in this case indicates that the Veteran's lumbar spine disability is not shown to be causally or etiologically related to any disease, injury, or incident during the Veteran's service. Because the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not implicated, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs