Citation Nr: 1800190 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-12 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1946 to December 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded this matter in March 2017. In a filing of April 2017, the Veteran stated with regard to the appeal, "[t]here are millions of Vets needing more consideration than I, so it's alright if you just let it go." Because the Veteran made a further filing in November 2017 arguing in favor of a grant of service connection, the Board has not construed the April 2017 filing as a withdrawal of the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Lumbar disc disease was not manifest in service and is not attributable to service. Arthritis was not manifest within one year following service. CONCLUSION OF LAW Lumbar disc disease was not incurred in or aggravated during service, and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. See 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA applies to the instant claim, and VA has satisfied the notification and duty-to-assist provisions of the law. The fully developed claim form filed by the Veteran in November 2013 (VA Form 21-526EZ) provided notice that satisfies the requirements of the VCAA. The Veteran has not alleged that notice was improper. Absent extraordinary circumstances, it is appropriate for the Board to address only those procedural arguments specifically raised by the claimant. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes service treatment records, service personnel records, private treatment records, VA treatment records, and statements of the Veteran. The Veteran underwent VA examinations for his back in June 2017 and September 2017. The examination reports are adequate for purposes of this appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The RO substantially complied with the Board's remand instructions of March 2017. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Back Disability Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, service connection requires: (1) a present 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the chronic disease is shown as such during service or within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017). When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the evidentiary burden of establishing all elements of a service connection claim, including the nexus requirement. See 38 U.S.C. § 5107(a) (2012); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C. § 1154(a) (2012). The Board must give a claimant the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has lumbar disc disease. See September 2017 VA examination report; June 2017 VA examination report. The Veteran's service treatment records document no back symptoms, and no defects were noted on the Veteran's separation examination report of December 1947. The spine was specifically found to be normal upon separation from service. The Veteran contends that he underwent no physical examination upon service separation. See Veteran's filing of November 2017. Upon review, the Board finds that the separation examination report of record is authentic. The Veteran contends that he injured his back during service by sliding on the deck of the U.S.S. Eversole and slamming against a protruding bulkhead. The Veteran states that he reported his injury at the time to an officer, who merely advised him to stay close to his bunk for a few days. The Veteran alleges recurrent back pain since the alleged on-board ship injury. See VA Form 9 of March 2016; NOD of November 2014. Service personnel records confirm the Veteran's service aboard the U.S.S. Eversole in 1946 and 1947. A May 1952 VA treatment record reflects a diagnosis of "herniated nucleus pulposus of unknown cause" and documents that back surgery was performed that year at a VA hospital. It was noted at that time that the Veteran had had low back and left leg pain for six months. Further back surgeries were performed at private facilities in the 1968 and in January 1999, respectively. See January 1999 record of Dr. P. V.; Veteran's filing of January 2015. The Veteran underwent VA examinations in June 2017 and September 2017. Negative nexus opinions were provided. The rationale of the September 2017 examiner was that the Veteran was discharged in December 1947 in physically sound condition with no complaints or problems relating to the back reported or found. It was further noted that back complaints were first documented in 1952, five years after service discharge. Similarly, the rationale of the June 2017 examiner was that no back injury was noted during service or on the exit examination report. The examiner also noted that the medical record of 1952 dated the Veteran's back pain to six months' previously, thereby placing the onset well after the Veteran's service had ended. The Veteran, as a layperson, is competent to attest to back symptoms that he has experienced during and following service. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board does not find the Veteran to be credible as to the in-service onset, however, due to his inconsistent reporting. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). The Veteran reported no back symptoms during his separation examination of December 1947. Furthermore, at the time of separation, the spine was found to be normal upon examination. Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Here the finding of a normal back at separation, and the Veteran's failure to mention any back symptoms at separation, are given more weight than the Veteran's current assertion of recurrent back symptoms since service. As a layperson, the Veteran is not competent to relate his current back disability to a back injury incurred during service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The only competent evidence of record as to the nexus question is the negative opinion of the VA examiners. The Veteran's back was found to be normal upon examination when the Veteran left service. Because there is no competent evidence that arthritis symptoms manifested during service or to a compensable degree within a year of leaving service, service connection cannot be presumed for the chronic disease of arthritis, and service connection based on a continuity of symptomatology is also not warranted. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017). The preponderance of the evidence is against finding that the Veteran's current back disability is related to service. The most probative evidence establishes a remote onset, and there is no reliable evidence linking the remote findings to service. The benefit-of-the-doubt rule does not apply under the circumstances. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs