Citation Nr: 1753589 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-09 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back condition. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from June 1973 to December 1974. These matters come before the Board from an October 2011 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for residuals, back injury (claimed as a back condition) and entitlement to TDIU. In May 2017, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. At the videoconference hearing, a 60-day abeyance period for the submission of additional evidence was granted. 38 C.F.R. § 20.709 (2017). That period of time has lapsed and no additional evidence was received. Hence, the claim will be considered based on the current record. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against a finding that the Veteran has a back condition that had an onset in active service, and it is not shown to otherwise have been caused by or related to active service. 2. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. A back condition was not incurred in active service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for the assignment of a TDIU rating have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in January 2011. Additionally, in May 2017, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2017 hearing, the undersigned stated the issues on appeal, and information was also solicited regarding the relationship between a current back disability and service, as well as any treatment received. As noted in the Introduction, the undersigned also granted a 60-day abeyance period for the submission of additional evidence; however, none was received. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board may proceed to adjudicate the claim based on the current record. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran, and a VA examination was obtained in May 2011. It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Also, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to her claim. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran contends he injured his lower back in service in December 1974 while unloading a truck, after which he went to sick bay and the diagnosis was muscle spasm, but no x-rays were taken. He reported that ever since that injury, he had problems with his back over the years, and was totally disabled and unable to work due to his back condition. He also contends that his back condition was worsened by a post-service motor vehicle accident. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet.App. 428 (2011). Service treatment records (STRs) show that in early December 1974, the Veteran was seen for complaints of low back pain which he developed after lifting a heavy object the day before. Examination revealed acute muscle spasm. Medication and heat were prescribed and he was placed in quarters for 24 hours. He was seen the next day and reported having low back pain, but the impression was that he was doing better. On a report of medical history prepared in conjunction with his separation examination later in December 1974, the Veteran responded "no" to having or having had recurrent back pain. On his separation examination, his spine was assessed as normal, and he was found to be qualified for worldwide duty and separation. Post-service treatment records show that the Veteran was treated for injuries sustained in a motor vehicle accident in May 2008. He reported having low back pain down his left leg, with numbness and tingling. He reported having previous problems with his low back when he sustained a lumbar strain in 1997 and a left knee strain in 1999. The initial assessment included lumbosacral strain and sprain with myofasciitis. In August 2008, the impressions were mechanical low back pain with left lower extremity radiculopathy and transitional L5 vertebra with grade I spondylolisthesis L4-L5, and disc protrusions at L3-L4 and L4-L5 with bilateral foraminal narrowing. An MRI in August 2008 revealed L5-S1, grade 1 spondylolisthesis with a shallow broad-based disc herniation, circumferential bulging and osteophyte; L4-L5, disc herniation with circumferential bulging and osteophyte formation; and L2-L3 and L3-L4, disc bulging. Records from the Social Security Administration (SSA) show that the Veteran was awarded disability benefits based on a primary diagnosis of lumbar DDD (degenerative disc disease), which began in May 2008. On a VA examination in May 2011, the diagnosis was listed as residual lumbar spine injury. The examiner opined that the Veteran's current back condition was less likely as not a result of his back injury he sustained while in the military, and that according to the claims file, the Veteran did not have a chronic back condition after leaving the military, that he was seen for a remote back condition in 1987, and that he was fine until his motor vehicle accident in 2008. With regard to current disability, the Board notes that private treatment records show that the Veteran has been diagnosed with and treated for a current back disability, to include lumbar DDD. What is missing from the record is competent evidence showing that the Veteran has a current back condition that may be causally related to active service. 38 C.F.R. § 3.303. The Veteran is competent to report that in service he injured his back and that he has had back pain since then. There has been no indication or finding, however, that a low back condition had an onset during active service or that he has had a back condition continuously since service. Although the Veteran testified at the May 2017 hearing that he has experienced ongoing back problems since his original injury in service, such is not supported by the record. In particular, at the time of the Veteran's separation from service, he completed a report of medical history in which he denied having or having had recurrent back pain. He also did not identify the in-service back injury as part of his medical history at the time of a May 2008 motor vehicle accident. Instead, he only reported sustaining a lumbar strain in 1997 and a left knee strain in 1999. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that lay statements made in connection with medical treatment may be afforded greater probative value than later statements made with self-interest in mind. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on the foregoing evidence, the Board does not find the Veteran's statements as to continuity of symptomatology credible. Moreover, on the VA examination in 2011, the examiner rendered a negative opinion, opining that the Veteran's back condition was less likely as not a result of his back injury he sustained in service. The Board finds that the examiner's opinion in 2011 was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current back condition that may be related to active service. Further, the record does not contain competent medical evidence to the contrary. As for the statements from the Veteran relating his current back condition to his military service, while he may be competent to testify as to the experiences he encountered in service as well as the symptoms he now experiences (such as back pain), it is beyond his competence as a layperson to opine regarding the diagnosis of and probable etiology of a chronic back condition. The Veteran lacks the training to opine whether a back condition may (in the absence of evidence of continuity, as here) be related to remote incidences in service; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In summary, the preponderance of the evidence is therefore against the claim of service connection for a low back condition. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU Rating Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). A total disability rating may be assigned to veterans who fail to meet the schedular standards under 38 C.F.R. § 3.321 (b)(2), 3.340, 3.41, 4.16, 4.17. Rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 38 C.F.R. § 4.16 (b). In this case, however, the Board notes that the Veteran has no service-connected disabilities; therefore, he does not meet the threshold requirement for entitlement to a TDIU rating. The claim for entitlement to a TDIU rating is therefore denied. ORDER Service connection for a back condition is denied. Entitlement to a TDIU rating is denied. ____________________________________________ A. ISHZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs