Citation Nr: 1751934 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-18 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In July 2011, the Veteran testified before a Decision Review Officer at the RO. In September 2013, the Veteran testified before a Veterans Law Judge at a videoconference hearing at the RO. Transcripts of both hearings are of record. However, the Board notes that while the September 2013 Veterans Law Judge is no longer with the Board, the Veteran has waived his right to a new hearing in a September 2017 correspondence. Therefore, VA's duty to provide him with a hearing has been met. 38 C.F.R. § 20.700 (2017). FINDING OF FACT The Veteran's back disorder is unrelated to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran asserts that his back disability is related to active service. 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 service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Upon review of all evidence of record, the Board finds that the Veteran's service connection claims should be denied. In this case, the Veteran's service treatment records do not report any injuries or complaints of back pain during service. Specifically, his March 1971 separation examination and report of medical history do not report any injury, diagnosis, or complaints related to his back. In fact, the Veteran reported that he was "in good health" at separation. Further, while the Veteran reported to his medical providers that he sustained a back injury during service, the first objective indication of a back disorder in the post-service medical evidence was not until he reported back pain in 2009, and subsequently diagnosed with degenerative disc disease with radiculopathy in August 2010. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3) for arthritis. As part of this claim, the Board recognizes the statements from the Veteran and his wife regarding his history back symptoms since service. In this regard, while the Veteran and his wife are not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," they are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran's claims. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Specifically, the Veteran's history of complaints since service are inconsistent with the service treatment records as his March 1971 separation examination and report of medical history do not reflect any complaints or injuries related to his back. Further, his VA and private treatment records, including from February 2010, reflect that the Veteran reported that his back pain began approximately between 1995 and 2000 - after he rolled his truck and was thrown off a horse. Moreover, the Board notes that the Veteran's assertions related to the degree of his back injury lacked credibility as the March 2013 VA examiner found that his range of motion during the examination was "impossible" given his posture prior to the examination and the degree of flexion that the Veteran exhibits while driving as a long haul truck driver. Lastly, the Board also notes that the Veteran filed numerous claims for VA benefits many years prior to filing the claim on appeal - with his first claim for compensation and pension benefits occurring 37 years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed back disorder to active duty, despite his contentions to the contrary. In a March 2013 VA examination, the examiner conducted a thorough physical examination of the Veteran and his service and medical records, and took a detailed medical history from the Veteran. The examiner opined that it was less likely than not that Veteran's back disorder was related to service. In support, the examiner noted that there was no evidence of a back injury during service and his separation examination was negative for any complaints or a diagnosis related to a back disorder. Further, there was no evidence in the post-service medical records to support a relationship or nexus between the Veteran's reported subjective back complaints and his current degenerative back disorder. As such, the examiner opined that the Veteran's current back disability is more likely related to his post-service injuries from "rolling his truck" and "being thrown off a horse," as well as his past work history which included "heavy labor, and involved working with concrete materials, farming, loading and unloading trucks, and a long haul truck driver." The Board notes that there is some indication in the Veteran's VA treatment records that his claimed disorders may be related to active duty. Nevertheless, the Board places less probative value on this evidence as it appears these records merely document the Veteran's asserted etiology, and the probative value of such assertions is low. Further, there is no indication that the medical providers reviewed any of the Veteran's service treatment records, nor did they provide a rationale for their opinions. Moreover, the Board also acknowledges the opinions from the October 2012 VA examiner which indicates that the Veteran's back disorder is at least as likely as not related to active duty service. However, as noted in the March 2013 VA examination report, the October 2012 VA examiner's opinions were based completely on the Veteran's "subjective" claims and conjecture regarding his in-service injury with no objective evidence to support his conclusions. Moreover, the October 2012 VA examiner's rationale lacked sufficient detail and only provided a basic conclusory opinion. As such, the Board finds the opinions of the March 2013 VA examiner to be more probative based upon his thorough examination, comprehensive review of the medical records, and a very detailed opinion with supporting rationale. The Board also acknowledges the statements from the Veteran and his wife regarding the etiology of his back disability, which they assert was caused by a helicopter accident, but also finds that evidence to be less persuasive. A lay person is competent to report observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran and his wife believe that his pain and degenerative changes may be the result of service, they are lay persons without appropriate medical training and expertise to provide a medical nexus opinion regarding the etiology of his disorders. The Board concludes that the preponderance of the evidence is against the claim for service connection for a back condition, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, it is noted that this appeal was remanded by the Board in October 2014 in order to obtain outstanding medical treatment records. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with this Remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Specifically, all outstanding medical records were obtained. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited 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 disorder is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs