Citation Nr: 1623532 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 09-40 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1968 to May 1970, and from September 1990 to November 1990. The Veteran also served in the National Guard from 1975, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to ensure a total review of the evidence. In September 2014, the Board remanded the issue on appeal to the Agency of Original Jurisdiction (AOJ) in order to provide the Veteran with additional notice, provide the Veteran with a VA examination, and obtain any outstanding service treatment (medical) or personnel records, to include verifying the Veteran's active duty, ACUDTRA, and INACDUTRA service periods. Because the above-referenced development has been completed, the Board finds that the AOJ substantially complied with the September 2014 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran has a current disability of lumbar spine degenerative disc disease and lumbar spondylosis. 2. The Veteran sustained an event of a helicopter fall in June 1990 during ACDUTRA service, but did not sustain a back injury as a result of the helicopter fall. 3. The Veteran's current lumbar spine degenerative disc disease with spondylosis did not have its onset during active service, nor is it otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 101, 1110, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, in a June 2008 notice letter sent prior to the initial denial of the claim in August 2008, the RO notified the Veteran about the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issues adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records (STRs), post-service VA and private treatment records, the relevant VA examination report, and the Veteran's written statements. VA examined the Veteran's back in January 2015. The Board finds that the above-referenced examination and opinion report is adequate for purposes of deciding the claim for service connection for a back disorder. The VA examiner reviewed the Veteran's medical history and complaints, interviewed the Veteran regarding past and present symptomatology, made clinical assessments and observations, and rendered an opinion regarding the etiology of the back disability. The examination report contains all the findings needed to decide the claim for service connection for a back disorder, including the Veteran's history and a rationale for all opinions given. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection for a Back Disorder Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2014) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." Active military, naval, or air service includes any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2014); 38 C.F.R. § 3.6(a), (d) (2015). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505 (West 2014); 38 C.F.R. § 3.6(c)(3) (2015). Lumbar spine degenerative disc disease and lumbar spondylosis are not "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) do not apply to the claim for service connection for a back disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran 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 38 C.F.R. § 3.159(a)(2); Woehlaert, 21 Vet. App. at 462 (concerning rheumatic fever). 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, 492 F.3d at 1376-77. 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. Jandreau, at 1376-77. The Board may 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that service connection is warranted for a back disorder because he injured the back when he fell out of a helicopter during an ACDUTRA service period in June 1990 at Camp Shelby, Mississippi. The Veteran indicated that he immediately got up after falling out of the helicopter, continued with the maneuver mission, and did not seek treatment for a back injury. See May 2008 VA Form 21-4138; September 2009 VA Form 21-4138; October 2009 VA Form 9. The Veteran asserted that his back disorder gradually started and progressively worsened. The Veteran also advanced that he sustained another injury to the back in July 2007 while lifting a jar of water. See May 2016 informal hearing presentation (IHP). The Board finds that the Veteran has a current back disability. The January 2015 VA examination showed a diagnosis of lumbar spine degenerative disc disease. VA treatment records during the appeal period also show treatment for lumbar spondylosis. The Board finds next that the Veteran sustained a fall from a helicopter during ACDUTRA service in June 1990; however, the weight of the evidence demonstrates that the Veteran did not sustain a back injury at that time or at any point during active duty, ACDUTRA, or INACDUTRA service periods. As stated above, the Veteran contends that he injured the back when he fell out of a helicopter during an ACDUTRA service period in June 1990 at Camp Shelby, Mississippi. The Board finds that the Veteran's assertions with respect to falling out of a helicopter are credible because they are supported by other evidence in the record; however, the Board finds that the Veteran's assertions with respect to sustaining a back injury as a result of the helicopter fall are not credible because they are contradicted and outweighed by other more contemporaneous lay and medical evidence in the record. The Veteran provided buddy statements confirming that the Veteran fell out of a helicopter during training in June 1990. See May 2008 statements by W.G., E.A., and C.F. The Veteran also stated that he did not seek treatment for a back injury at that time and that he got up after the fall and continued with the maneuver mission. In the May 2008 statement, E.A. confirmed that the Veteran fell out of a helicopter, got up, and ran seemingly as though nothing had happened. Service treatment records show no complaints, treatment, findings, or diagnosis of a back disorder. An "event" is defined as one or more incidents associated with places, types, and circumstances of service giving rise to disability. See 38 C.F.R. § 3.159(a)(4). The above-referenced evidence shows that the Veteran sustained an "event" of a helicopter fall, but weighs against finding that the Veteran sustained a back injury in service as a result of such "event" of a helicopter fall because a person is likely to seek treatment after injuring the back after a helicopter fall, especially, in this case where the Veteran sought treatment for other health problems during service such as eye trouble and high blood pressure, but did not seek treatment for a back injury or report any back symptoms during service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. Sept. 30, 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Finally, E.A.'s May 2008 statement that the Veteran continued to run immediately after the helicopter fall as though nothing had happened also weighs against finding that the Veteran sustained a back injury at that time. Other more contemporaneous evidence also weighs against finding that the Veteran sustained a back injury in June 1990 that progressively worsened. An October 1990 service report of medical history, which was completed by the Veteran approximately four months after the helicopter fall, showed that the Veteran denied current symptoms or a history of recurrent back pain or broken bones, bone, joint or other deformity, while reporting other problems such as eye trouble and hearing loss. See also June 1991 service report of medical history. A June 1991 service report of medical examination shows a normal clinical evaluation of the spine. In this regard, the Board is not relying on the absence of evidence, but rather on the contemporaneous, affirmative lay reports of symptoms and history by the Veteran, as well as contemporaneous medical evidence of no complaints, treatment, findings, or diagnosis pertaining to the back, especially during the June 1991 service medical examination, which took place about one year after the helicopter fall. The Board finds that the weight of the lay and medical evidence of record demonstrates that the currently-diagnosed back disability did not start in service and is not etiologically related to service, to include the June 1990 helicopter fall during ACDUTRA service. A February 1993 VA general examination report shows, under the musculoskeletal section, that the Veteran had complaints of left shoulder pain but did not mention any back pain or other back symptoms. It would reasonably be expected that if the Veteran had any back symptoms in February 1993, he would have reported such symptoms along with the left shoulder symptoms he reported. As the post-service treatment records appear to be complete, and do not reflect any treatment or diagnosis related to the back or a reported history by the Veteran of having been diagnosed with a back disability, which weighs against a finding that the Veteran had symptoms of a back disability since service. See Kahana, 24 Vet. App. at 437 (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred); Cf. AZ, 731 F.3d at 1315-18 (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski, 24 Vet. App. at 224 (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The first evidence of a back disorder is in 2007, which is approximately 16 years after separation from the most recent active duty period and approximately 12 years after separation from the National Guard. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). Moreover, the Veteran asserted that he injured the back in July 2007 while lifting a jar of water. See May 2016 IHP. The record reflects that the Veteran filed the claim for service connection in 2008 and began to report back symptoms in 2007 after the July 2007 post-service injury. This also confirms a post-service onset of a back disability. The Veteran underwent a VA examination in January 2015. After performing a physical examination, and based on a review of the claims file and consideration of the Veteran's lay statements, the VA examiner opined that the currently-diagnosed lumbar spine disability is less likely than not incurred in or caused by the June 1990 helicopter fall. In reaching this conclusion, the January 2015 VA examiner reasoned that reports of medical history dated in October 1990 and June 1991 show that the Veteran answered "no" to the question of whether he had current symptoms or a history of recurrent back pain. Moreover, the June 1991 service medical examination report shows a normal clinical evaluation of the spine. The October 2015 VA examiner opined that the it is more likely than not that the degenerative disc disease noted on a September 13, 2007 radiology report is a result of the progression of the aging process and not due to a helicopter fall in 1990. The Board finds that the above-referenced January 2015 VA opinion is highly probative with respect to service connection for a back disability, and is adequately based on objective findings as shown by the record, and was based upon a full and accurate factual premise, including the Veteran's history of post-service onset of back symptoms, and provided a rationale for the opinion given. See Stegall, 11 Vet. App. 268; Barr, 11 Vet. App. at 311; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the January 2015 VA opinion provides competent, credible, and probative evidence which shows that the currently-diagnosed back disability is not etiologically or causally related to service. While the Veteran is competent to report symptoms of a back disability such as back pain, the Board finds that, under the facts of this case that involve no back injury or back symptoms or disorder in service or for years after service, and include a post-service injury in 2007, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the current back disability. The only link between the Veteran's back disability and the June 1990 helicopter fall event is the Veteran's general contention during the appeal period that the back disability is related to the June 1990 helicopter fall. Kahana, 24 Vet. App. at 438 (holding that ACL injury is too "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The etiology of the Veteran's back disability is a complex medical etiological question dealing with the musculoskeletal system in addition to the relationship between the current back disability and a helicopter fall in June 1990 versus the aging process, and versus a 2007 post-service injury while carrying a jar of water. Thus, while the Veteran is competent to relate back symptoms that he experienced at any time, he is not competent to opine on whether there is a link between the current back disability and service, including the June 1990 helicopter fall, because such a medical opinion, under the facts of this case that include no back symptoms or disorder in service or for years after service, and include a post-service injury in 2007, requires specific medical knowledge and training that the Veteran is not shown to have. See Layno, 6 Vet. App. 465 (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")). Based on the foregoing, the weight of the evidence is against a finding that the current back disability was incurred in or was otherwise caused by service, to include the 1990 helicopter fall during ACDUTRA service. Thus, the Board finds that a preponderance of the lay and medical evidence weighs against the service connection claim for a back disability; consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs