Citation Nr: 1632175 Decision Date: 08/12/16 Archive Date: 08/23/16 DOCKET NO. 09-42 864 ) 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 disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran had active service from January 1983 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2011, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the electronic claims file. The Veteran's claim has been remanded in November 2010, November 2011 and June 2014 for further development. Most recently, in June 2014, the Board remanded the matter for additional development, which included obtaining private medical records. The Board is satisfied there was substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); Dymant v. West, 13 Vet. App. 141 (1999). In an August 2013 properly executed VA Form 21-22, the Veteran appointed the American Legion as his representative. Accordingly, the American Legion has a general power of attorney related to the Veteran's claim before VA. The Veteran has not revoked the American Legion's general power of attorney, but in a March 2016 correspondence, a representative from the American Legion indicated that the organization refused to act as the Veteran's representative in this matter. In a subsequent April 2016 letter, the Board inquired if the Veteran wished to appoint a new representative. As the Veteran has not appointed a new representative and the American Legion has not made an appropriate motion under 38 C.F.R § 20.608, the Board continues to recognize this organization as the representative. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT A low back disorder was not manifest in service nor was it demonstrated within the one year following separation from service, nor has it been shown to be related to service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Board finds that the VA has satisfied its duties under the VCAA. Specifically, a letter was sent to the Veteran in April 2008 which detailed the claims process and advised the Veteran of the evidence and information needed to substantiate his claim. The letter further informed the Veteran of his obligations to provide necessary information to assist in his claim and the VA's obligations to obtain such evidence and information that is deemed to be in the VA's possession or that the VA has permission to obtain. The Veteran was also informed of VA's practices in assigning disability evaluations and effective dates for those evaluations. In regard to the duty to assist, the Veteran's service treatment, private and VA treatment records have been obtained and considered. The Board notes that the RO requested the Veteran's records from North Broward Medical Center (North Broward) dated from 1990, but did not receive any reply. In November 2014, the RO notified the Veteran of the lack of response from North Broward and advised him to contact the provider or obtain and provide the records directly to the RO. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA was unable to obtain the Veteran's complete service treatment records, particularly sick call records, and in these cases, VA has a heightened duty to assist. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. In October 2012, the RO sent the Veteran a letter which informed him that his complete service treatment records were unavailable. The letter also informed the Veteran of his right to submit any additional evidence, including the missing sick call records. With consideration of the facts set forth above, and in light of the apparent unavailability of the service records, the Board is satisfied that VA's duty has been met and that reasonable efforts to reconstruct the Veteran's service records have been made. As will be fully addressed below, additional developmental action by the RO is not warranted in this instance, as such activity would not be fruitful in obtaining additional pertinent medical information or documenting information that cannot generally be obtained from existing medical evidence of record. Here, the Veteran was not afforded a VA examination in connection with his claim and the Board finds that he is not entitled to one. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability; (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, a medical examination addressing the Veteran's claim is unnecessary in this case because as will be discussed below, even though there is evidence of a current disability, there is no credible evidence of an "in-service event, injury or disease," which would support incurrence or aggravation [McLendon element (2)]. Furthermore, there is no indication that the current disability may be related to an in-service event [McLendon element (3)]. For the foregoing reasons, the Board finds that VA has satisfied its duties to notify and assist the Veteran. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) and 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Service Connection The Veteran contends that he is entitled to service connection for a low back disorder since he injured his back during service in Germany in 1985 and never fully recovered. Specifically, the Veteran contends that he injured his back doing physical training and/or while playing flag football on the unit football team. See March 2009 VA Form 21-4138; August 2011 Board Hearing Transcript, pp. 4, 9, 12-13. In order to obtain service connection under 38 U.S.C.A. §§ 1110, 1131 (West 2014) and 38 C.F.R. § 3.303(a) (2015) a Veteran must satisfy 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 or aggravated during service - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Also, in the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Arthritis is listed as a chronic disease. 38 U.S.C.A. § 1112(a)(1) (West 2014). Here, there is evidence of a current disability (Element 1). June 2009 records from Broward Health indicate that the Veteran was diagnosed with advanced chronic disc degeneration. However, there is no credible evidence of an in-service incurrence or event. On his March 2008 VA Form 21-526, the Veteran stated that he injured his back in January 1985. On his March 2009 Notice of Disagreement, he stated that he injured his back during physical training (PT) and on his October 2009 VA Form 9 he affirmed that the injury occurred from PT. At the Board hearing, the Veteran testified that he injured his back during a unit football game in 1985. He testified that he was seen at sick call and put on profile numerous times thereafter. He also submitted statements from his former mate, sister, and friend who stated that that the Veteran told them he injured his back during a football game. Although the Veteran is competent to report events he personally experienced, the Board finds that the Veteran's accounts of an in-service back injury not credible. Early on in the claims process, the Veteran claimed he injured his back during PT, but later stated that he injured it during a football game. The Board finds the Veteran's inconsistent statements regarding the source of his injury to diminish their probative value. Further, the buddy statements submitted on the Veteran's behalf are solely based on the Veteran's alleged reports of injury. None of the three people actually witnessed the Veteran's alleged injury. Therefore, the Board does not afford any probative value to these statements. As noted above, the Veteran's service treatment records are incomplete. Only his entrance examination and a statement hat the Veteran did not desire a separation medical examination are part of the record. Although the Veteran stated that he signed the paper stating that he declined a separation examination under duress since he was told he was past his expiration of term of service (ETS) date, there is no other evidence of any back problems prior to separation. The Veteran's personnel records are complete and they did not indicate that the Veteran was unable to participate in the necessary activities needed to advance while in service. In fact, he reenlisted in October 1986 and did not indicate that he had any back problems. In short, there is no objective indication of an in-service disease or injury that resulted in the Veteran's back disorder. Element (2) is therefore not met, and the Veteran's claim fails on this basis. Nevertheless, for the purposes of full consideration of the Veteran's claim, the Board will proceed with a full analysis of the Veteran's claim. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. There is no competent evidence of record that establishes a causal relationship between the Veteran's back disorder and his military service. In the absence of in-service disease or injury, it would seem that such nexus opinion would be impossible. The Veteran testified that he sought treatment for his back within 1 year of separation from service at the North Broward Medical Center. As noted above, those records could not be located and the Veteran could not produce such records. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board notes that although the Veteran claimed to have sought treatment within 1 year of separation from service, each time he was requested to complete an authorization for release of his records (more than once), he specified the date of 2009 instead 1990 - one year of service separation. Therefore, the Board concludes that the Veteran did not seek treatment within 1 year of separation as he stated. The Veteran also testified that due to his back pain, he never worked after his military service. See Board Hearing Transcript, p. 10. However, 1994 treatment records from the Miami VA Medical Center indicate that the Veteran was treated for an autoimmune disease and reported that he previously worked as a pool repairmen/cleaner but had not found work since moving to the area. 1999 VA treatment records indicate that the Veteran reported working side-jobs and hadn't worked a fulltime job since 1997. The Board finds that the Veteran's assertions of continued symptomatology since active service, while competent, are not credible. The first credible evidence of back problems were the same year the Veteran filed his claim for service connection. Therefore, the Board finds that the Veteran is not entitled to the presumption afforded to chronic diseases. Presently, there is no medical evidence of record relating a current diagnosis of advanced chronic disc degeneration to service. The Veteran alluded to a therapist who stated that his back disability may be related to service, but did not submit any supporting evidence. See Board Hearing Transcript, p. 10. As the preponderance of the evidence is against the claim for service connection for a low back disorder, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs