Citation Nr: 1632832 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 14-24 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disability for accrued benefits purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The appellant is seeking benefits as the surviving sister of the Veteran, who had active service from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in April 2011. The RO has granted substitution of the appellant in place of the Veteran in pursuing the current appeal, which was pending at the time of the Veteran's death, for the purpose of obtaining accrued benefits. The appellant provided testimony at an April 2016 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. FINDINGS OF FACT Symptoms of a back disability were not continuous or recurrent in service or since service separation; arthritis did not manifest to a compensable degree during or within one year of active service; and there is no medical nexus between the back disability and active service. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is pursuing a claim of entitlement to service connection for a back disability for the purpose of obtaining accrued benefits. 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the medical evidence of record demonstrates a diagnosis of arthritis. Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). However, for the reasons set forth below, the Veteran was not diagnosed with arthritis within one year of separation from service, nor was there continuity of symptomatology. With specific regard to continuity of symptomatology, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, such as arthritis, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. At 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Prior to his death, the Veteran contended that he had a current back disability that was related to active service. Specifically, he stated that he injured his back in 1976, during active service, when he fell and injured his tailbone, and that he reinjured his back while playing football in Germany. He also avers that lifting wall lockers during active service further injured his back. After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that although the Veteran experienced several episodes of back pain during active service, symptoms of the claimed back disability were not continuous or recurrent in service. Service treatment records show that in July 1978, the Veteran reported that he had fallen the previous day on a concrete floor and was experiencing back pain. On examination, spasm was noted in the sacral area with tenderness. There was no radiation of pain, but there was general soreness to palpation about the low back. The impression was contusion/muscle spasm, and the clinician recommended treatment with heat and physical therapy, and placed the Veteran on crutches. At the Veteran's August 1978 separation examination, clinical evaluation of the spine was marked as normal, but the Veteran checked "yes" next to "recurrent back pain" on his Report of Medical History. However, no diagnosis or specific findings regarding the back were noted on the examination report. About one week after the separation examination, in August 1978, the Veteran complained of a backache of two days' duration. He stated that he had sprained it the day prior while lifting wall lockers. On examination, there was localization of the pain in the right interscapular region and no swelling. Movements of the right arm reproduced the pain. The clinician diagnosed a muscular sprain and recommended no heavy lifting for 72 hours. Several days later, the Veteran reported no improvement in his pain, and examination was unchanged from the previous visit. Heavy lifting restrictions were continued for another 72 hours. There are no further reports of back pain in the service treatment records. However, in September 1978, the Veteran signed a Statement of Medical Condition (when examined more than three days prior to separation) and did not indicate any changes in his medical condition since his separation examination in August 1978. In sum, service treatment records show several episodes of back pain during active service, but the preponderance of the evidence demonstrates that the Veteran did not have continuous or recurrent symptoms of a back disability during active service. In the case of arthritis, if there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the preponderance of the evidence demonstrates that symptoms of the claimed back disability were not continuous or recurrent after separation from active service in September 1978. As noted above, the August 1978 separation examination report noted normal clinical evaluation of the spine and did not note any findings or diagnoses with regard to the back. Following separation from service in September 1978, the evidence of record does not show any complaints, diagnosis, or treatment for a back disability until February 2005, when VA treatment records indicate the Veteran reported that he tried to stay active because of a "bad back." The next chronological mention of back problems was in May 2007, when the Veteran reported an exacerbation of chronic low back pain, which the clinician noted was related to a service-connected injury. Arthritis was first demonstrated by x-ray study in May 2008. At the April 2016 Board hearing, the appellant testified that the Veteran had first sought treatment for his back problems beginning in the mid-1980s, but stated that the records of such treatment were not available. In any case, the absence of post-service complaints, findings, diagnosis, or treatment for the claimed disorder for 27 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of a back disability after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed back disability have not been continuous or recurrent since service separation includes an April 2008 VA treatment record that indicates that, in addition to his in-service back injuries, the Veteran reported a post-service back injury occurring in 1984. Moreover, at the August 2008 VA examination, the Veteran reported that, following service separation, he was free of back pain for several years, providing highly probative evidence against the current claim that he experienced continuous or recurrent symptoms of a back disability since active service. The Board also finds that the preponderance of the evidence demonstrates that arthritis did not manifest to a compensable degree within one year of service separation. The preponderance of the evidence demonstrates no arthritis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period. Indeed, the evidence does not demonstrate a diagnosis of back arthritis until 2008, when an x-ray study showed degenerative changes. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. With regard to the appellant's assertions made in the context of the current disability claim and the Veteran's assertions prior to his death that he experienced continuous or recurrent back disability symptoms since service, the Board finds that, while they are competent to report the onset of symptoms of the claimed disorder, these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the appellant and Veteran's assertions of continuous or recurrent symptoms of the claimed disorder after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, including the August 1978 separation examination report, which is negative for any findings or diagnoses of a back disability; the August 2008 VA examination, at which the Veteran reported that he was pain free for several years following service separation; the April 2008 VA treatment record indicating that the Veteran reported a post-service back injury occurring in 1984; and the lack of any documentation of reports or treatment for the claimed disorder until 2005, 27 years after service separation. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent symptomatology of the claimed back disability since service, so as to warrant a finding of a nexus between the claimed back disability and active service. The Board acknowledges the appellant and Veteran's belief that his back disability was related to active service. However, their statements alone do not establish a medical nexus. Indeed, while the appellant and Veteran are competent to provide evidence regarding matters that can be perceived by the senses, they are not shown to be competent to render medical opinions on questions of etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, as lay people, they are without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that neither the appellant nor the Veteran is competent to address. Jandreau. Moreover, the Board finds that no competent medical opinions are of record which support a relationship between the Veteran's back disability and active service, nor is there any other indication in the medical evidence of record that there was a relationship between the claimed disorder and active service. The Veteran was afforded a VA examination with regard to his claimed back disability in August 2008. The VA examiner opined that the back disability was less likely as not caused by or a result of the back strain, backache, and back muscular sprain/pain complaints and diagnoses during active service. The examiner reasoned that there was no evidence of chronicity of symptoms after military separation, and that the degenerative disc disease found by x-ray study is seen in any individual and is related to the normal aging process, citing to medical literature. In sum, the weight of the competent evidence demonstrates that there was no relationship between the Veteran's claimed back disability and active service. There are no contrary opinions of record. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's back disability and his military service, including no credible evidence of continuous or recurrent symptoms of the claimed disorder during active service, continuous or recurrent symptomatology of the claimed disorder following service separation, or competent medical evidence establishing a link between the claimed disorder and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the back disability for accrued benefits purposes, and outweighs the appellant and Veteran's more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms. For these reasons, 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. 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, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of a July 2008 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA examination report, and the Veteran's and appellant's statements, including the appellant's testimony at the April 2016 Board hearing. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2016 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing the appellant's claim, including regarding specific evidence that may help substantiate her claim. Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. As noted above, a VA examination and opinion was obtained in August 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2008 VA examination and opinion obtained in this case is adequate. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include service and VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Notably, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Moreover, the claim decided herein is for accrued benefits purposes. Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009); Ralston v. West, 13 Vet. App. 108, 113 (1999). There is no assertion that additional VA treatment records should be obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. 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). ORDER Service connection for a back disability is denied for accrued benefits purposes. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs