Citation Nr: 1739655 Decision Date: 09/15/17 Archive Date: 09/29/17 DOCKET NO. 13-03 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left hip disorder, identified as moderate spondylosis. 2. Entitlement to service connection for low back disorder, identified as advanced spondylosis with atherosclerosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Mrs. J.C. ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1963 to April 1967. The issues on the title page arrive at the Board of Veterans' Appeals (Board) after appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2013, the Veteran and his sister testified before the undersigned Veterans' Law Judge (VLJ) at a Board videoconference hearing. A copy of the hearing transcript is located in Legacy Content Manager (LCM). The Veteran's entire claims file is found in the LCM and Veterans Benefit Management System (VBMS) databases. In February 2015, the Board remanded the two issues identified on the title page for further development. The agency of original jurisdiction (AOJ) substantially complied with the February 2015 remand directives; consequently, there is no procedural deficiency that precludes delivery of the conclusions found below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008)(holding that only substantial compliance would be required, not strict compliance). FINDINGS OF FACT 1. The Veteran's current left hip disorder did not manifest in service and is not related to any event or incident of his active duty. 2. The Veteran's current low back disorder did not manifest in service and is not related to any event or incident of his active duty service. CONCLUSIONS OF LAW 1. A left hip disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). 2. A low back disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, the VCAA required notice provisions were satisfied with a letter dated in August 2011, which informed the Veteran of the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letters also informed the Veteran how disability ratings and effective dates were established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Pertinent to the VA's duty to assist, the record also reflects that the VA has undertaken appropriate actions to obtain all relevant evidence material to this claim. The RO has secured the Veteran's service treatment records (STRs) and VA treatment records. The Veteran was afforded a VA examination in July 2015 in connection with the claims addressed herein. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). This examination and the medical opinions provided were thorough, supported by a clear rationale, based on a review of the claims folder, and supported by the clinical evidence of record. Additionally, the VA examiner considered the Veteran's lay assertions in reaching the conclusion(s). Therefore, the Board finds that these medical opinions are adequate to decide the claims on appeal. For his part, the Veteran has submitted personal statements regarding his symptoms and limitations. In August 2015, the friend of the Veteran submitted a statement regarding the Veteran's health before and after active duty service. Through testimony before the undersigned VLJ, the Veteran's sister described the Veteran's health upon separation from active duty service. As was also noted above, the Veteran's claims were previously remanded by the Board in February 2015. 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). The Board remanded the Veteran's claims in order to obtain government and private treatment records and to obtain VA medical examinations. To that end, the evidentiary record now contains updated VA treatment records and VA examinations. Accordingly, the VA has substantially complied with the February 2015 remand directives. The Board notes that the Veteran has alleged that his disabilities were incurred while stationed at the Davis-Monthan Air Force Base (DMAFB) in Tucson, Arizona. Pursuant to the Board's remand directive, the AOJ obtained the date of this alleged incident from the Veteran in March 2015. In April 2015, the AOJ requested the records for January to March 1966 from DMAFB. The DMAFB medical records department replied, indicating that there were no records for the Veteran. Therefore, the Boards finds the VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Entitlement to Service Connection The Veteran is seeking service connection for a left hip disorder and a low back disorder. When seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disability was incurred during service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires competent evidence showing: (1) the existence of a current disability; (2) an 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). 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. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical 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). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Analysis for Left Hip and Low Back Disability Claims Through his July 2011 Application for Compensation and/or Statement in Support of Claim, the Veteran has sought entitlement to service connection for his left hip and low back disorders. As noted earlier, the first, requisite element of any service-connection claim is the existence of current disability. Shedden, 381 F.3d at 1167. A current disability exists for the first element of the Veteran's left hip and low back service-connection claims. Near the beginning of the claim period, in June 2011, the Veteran was diagnosed with moderate spondylosis of the left hip. The same physician diagnosed advanced lumbar spine spondylosis with prominent atherosclerosis. Near the end of the claim period, in July 2015, a VA provider identified a degenerative joint disease diagnosis for the thoracolumbar spine. The same VA provider identified osteoarthritis in the left hip. The VA provider identified 2004 as the date of diagnosis for left hip and low back disabilities. As to the second and third requirements of a service-connection claim, the Board will look at the Veteran's two claims simultaneously. As will be revealed below, the Veteran's left hip and low black disability claims share the same evidence for the second element of a service-connection claim, in-service incurrence. In his July 2011 Statement in Support of the Claim (SSC), the Veteran describes an incident with an 8000 pound Three System Hydraulic Test Stand (TSHTS). The Veteran reports being struck by a tow bar and pushed 30 feet at DMAFB. This reported incident is the in-service incurrence the Veteran offers for the second, requisite element of his service-connection claims for left hip and low back disabilities. Also in the July 2011 SSC, the Veteran reports a visit to the clinic on DMAFB because of back pain resulting from the alleged incident. During his May 2013 Board hearing testimony before the undersigned VLJ, the Veteran again describes an incident on DMAFB. At that hearing, the Veteran's sister testified that she had heard the Veteran recall and describe the in-service incident many times. The Veteran testified that he went to the hospital for pain a few days after the incident, but no x-rays were taken. Because the Veteran stated and testified that a visit to the clinic on DMAFB followed the in-service incurrence he has described on multiple occasions, the second directive of the February 2015 Board remand was designed to acquire any medical records or reports from the DMAFB clinic. In April 2015, the medical record department of the DMAFB clinic reported that it did not have any records for January to March 1966, which is the approximate time supplied by the Veteran. The Board has thoroughly reviewed the Veteran's entire claims file for evidence of the in-service incurrence described by the Veteran in the July 2011 SCC and May 2013 Board hearing testimony. In January 2012, the Veteran's chiropractor opined, "the injury of the left hip and low back was probably (more than 95%) caused by the accident that occurred while in the U.S. Air Force." The Veteran had described the same in-service event to the chiropractor at his first visit with this provider. In May 2013, a physician at the Veteran's neurology clinic opined, "I feel the injury he suffered in 1966, while in the Air Force, is the root for the number of problems with his hip and back." The provider continued with, "(t)he fact that he has had low back pain since 1966 when he was injured by a hydraulic test stand would indicate that it was likely the etiology for most of the pain." Thus, it appears that the physician was basing his opinion on the Veteran's report of a continuity of back symptomatology since his alleged in-service injury. In April 2013, Dr. M's impression included a note that the Veteran has had low back pain since an injury in 1966, which involved a "mule tractor." The Board must assume that the "mule tractor" is the TSHTS identified by the Veteran in his July 2011 SCC. Regardless, the Board affords the physician's conclusion little weight, because he states the Veteran could not walk for days after the incident, which runs counter to the Veteran's reports that pain did not develop until days after the incident. In a November 2016 Informal Hearing Brief (IHP), the Veteran's representative repeats the conclusions of the April 2013 medical provider, regarding the etiology of the left hip and low back disabilities. The IHP offers the contention that VA did not rebut the conclusions of the April 2013 medical provider with the July 2015 VA examination report. Moreover, in the IHP, the Veteran's representative indicates that the July 2015 VA examination report failed to properly consider the lay statements in the claims file. Again, the Board has thoroughly reviewed the Veteran's claims file. The Veteran's STRs do not contain any notation about the incident the Veteran has described, which involved an 8000 lbs. TSHTS. Additionally, no contemporaneous report or evidence (of any kind) for the alleged event can be found anywhere in the claims file. But, there is information in the Veteran's STRs that is important to the Board's credibility determination on the Veteran. In March 2015, the Veteran indicted that the in-service incident occurred in the January to March 1966 timeframe. As noted earlier, the clinic at the DMAFB hospital did not have any record of this alleged incident and/or any associated medical treatment. When the Board reviewed the Veteran's STRs, it did locate an in-service incident in March 1966. Specifically, the Veteran was treated for a right ankle injury on March 30, 1966. The medical note for that injury indicates the Veteran "turned (right) ankle on 2x4." He was given a duty excuse, ace bandage, and ice bags with instruction to elevate. There is no mention of any injury or complaint related to the Veteran's left hip or low back. The Board may weigh a claimant's lay statements against the absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Fountain v. McDonald, 27 Vet. App. 258 (2015). See also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). In Horn, the Court held that the absence of evidence cannot be substantive negative evidence without "a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact." 25 Vet. App. at 239 (n.7). The absence of a 1966 report involving an 8000 lbs. TSHTS does not affect the credibility of the Veteran's account of the event. What diminishes the credibility of his account is that there are treatment reports for a much less dramatic and serious event and injury during the timeframe the Veteran supplied, January to March 1966. One would assume that if the Veteran has sustained injuries to his left hip and low back, he would have reported it to health care providers especially since he reported problems associated with his right ankle during the same period. Pursuant to Fountain and Horn, the Board concludes that the Veteran's credibility is diminished by the presence of a less-dramatic ankle injury report during the timeframe when the left hip and low back injuries were supposedly incurred. Fountain, 27 Vet. App. 258; Horn, 25 Vet. App. 231. The credibility of the Veteran's incident report suffers further when the remainder of his STRs is considered. Specifically, during his February 1967 discharge physical, the Veteran did not report recurrent back pain or left hip pain. On the contrary, in February 1967 the Veteran described his current health as, "Excellent." This report weighs heavily against any finding of continuity of symptomology since service. In sum, the only evidence in favor of the left hip and low back claims currently before the Board has resulted from the Veteran's unsubstantiated self-reported history of the incident. Whether directed at medical providers, lay witnesses, VA and/or the Board, the Veteran's incident report is not credible because of the above-noted evidence if a less-dramatic and serious incident in the Veteran's STRS and claims file and the lack of any complaints pertaining to the left hip or low back at service discharge. Since the Veteran's in-service incident report is not credible, the weight of remaining the evidence stands against service-connection for his left hip and low back claims. The claims file, found on the VBMS and LCM databases, does not contain complaints with regard to a left hip and/or low back disorder at discharge from service. The Veteran's STRs do not record complaints of hip or back pain during active duty service. To the extent that the Veteran several health care providers have linked the Veteran's current disability to his reported in-service injury, the Board observes that medical opinions based on incomplete or inaccurate factual premises are not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board finds the competent and credible evidence does not support an in-service incurrence or aggravation for the Veteran's left hip or low back. A careful review of the Veteran's claims file does not reveal any credible evidence that the Veteran ever sought treatment for, or complained of, any left hip or low back injury and/or pain while in the U.S. Air Force. Therefore, the Board finds no credible evidence that the Veteran sustained an in-service injury to his left hip or low back. The preponderance of the evidence standard cannot be applied in the Veteran's favor, because there is no reasonable doubt. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015); see also Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for left hip disorder, identified as moderate spondylosis, is denied. Entitlement to service connection for low back disorder, identified as advanced spondylosis with atherosclerosis, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs