Citation Nr: 1802636 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-18 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a September 2010 Travel Board hearing and February 2015 videoconference Board hearing, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. Transcripts of both proceedings have been associated with the claims file. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As the VLJ who conducted the Board hearing is no longer employed by the Board, she cannot participate in the adjudication of the Veteran's claim. As a result, in October 2017, the Board sent the Veteran a letter requesting that he indicate whether he would like another opportunity to testify before the Board. This letter indicated that if no response was received within 30 days, then it would be assumed that he did not want another hearing. As no response was received, the Board assumes that the Veteran does not desire another hearing and, thus, the Board will proceed with addressing the appeal. This case was most recently before the Board in July 2016, where it remanded the matter for further development. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's back disability is etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duty to notify was satisfied by a letter sent to the Veteran in July 2007. The letter informed him of the evidence required to substantiate the claim, and of his and VA's respective duties in obtaining this necessary supporting evidence. The letter also advised him of how a "downstream" disability rating and effective date are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the claim was subsequently readjudicated in the May 2009 Statement of the Case (SOC), as well as in additional SSOCs. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify has been satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, as well as his own written contentions. Neither the Veteran nor the Veteran's representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained. In July 2016 and July 2017, pursuant to the Board's July 2016 remand, the Veteran was asked to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that VA could obtain his private medical treatment records from Dr. P.A. and Dr. J.S. However, the Veteran inexplicably did not provide this required authorization. In pursuing a claim, a claimant has responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If the Veteran wishes help in developing his claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining evidence. Id. Furthermore, the Veteran was afforded a VA examination in February 2011 in support of his claim. Upon review of the medical evidence, the Board concludes that this examination report is adequate for the purpose of rendering a decision in this case, as it was based on a full examination of the Veteran and review of his claims file and the opinion provided is accompanied by sufficient rationale. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Upon completion of the development requested by the Board in its July 2016 remand, the Agency of Original Jurisdiction continued the denial of the Veteran's claim, as reflected in an August 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review. The Board finds that there was substantial compliance with its July 2016 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Back Disability The Veteran contends that his back disability resulted from an incident in service where a hatch door broke and fell on his lower back. See February 2017 Board Hearing Transcript at 14-15. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence is against the Veteran's claim. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of lumbar spine degenerative disc disease. See February 2011 VA Examination. Therefore, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. Here, the Veteran has testified that a hatch came down and hit his back while he was in service. He has reported that he saw a corpsman at the time. The corpsman touched him in the area of the injury, told him to touch his toes, and provided him with medication. The Veteran is competent to testify regarding what occurred during service and the Board finds that his statements regarding the in-service injury are credible. Therefore, the second element of direct service connection has also been established. What remains to be established is that there is a nexus between the in-service injury and his current back disability. Initially, although arthritis is considered to be a "chronic disease" under 38 C.F.R. § 3.309(a), to be presumed to have been incurred during service, such chronic disease must manifest to a compensable degree within one year of separation from active duty. In this instance, the Veteran reported to his February 2011 VA examiner that over the years he started getting back pain on and off, but he did not seek treatment. He indicated that his back did not severely begin hurting until the past 10 to 15 years. See also February 2015 Board Hearing Transcript (testifying that Veteran saw a doctor for his back a single time about 4 or 5 years after separation). Thus, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The Veteran's June 1968 separation examination indicates that the Veteran's back was clinically evaluated as normal. Moreover, the earliest post-service medical records demonstrating that the Veteran complained of, or was treated for, a back disability was in August 2006, which is over 35 years after his separation. This prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Nonetheless, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). In this case, the Veteran has not asserted that he has continuously experienced back pain since his active service. Consequently, after weighing the Veteran's own lay assertions, the absence of in-service treatment records detailing a chronic disability, normal clinical findings during his separation examination, and the prolonged period before the first documented post-service treatment and diagnosis, the Board finds that service connection for a chronic back disability is not warranted on the basis of a continuity of symptomatology since active service. 38 C.F.R. § 3.303(b). Even though presumptive service connection or service connection based on continuity of symptomatology is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Regarding direct incurrence, the Veteran's STRs are silent for any complaints of, or treatment for, any back condition. Similarly, his June 1968 separation examination shows that his back was clinically evaluated as normal. Following the Veteran's separation from service, the earliest documented evidence of any complaints or treatment for a back condition was decades after his separation from service. See Private Medical Record dated Aug. 4, 2006 (diagnostic testing shows degenerative changes of the spine). The fact that a chronic back condition was not shown for such a prolonged period after his period of active service weighs against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (explaining that the Board may consider "evidence of a prolonged period without medical complaint," along with other factors in resolving a claim). The Veteran was afforded a VA examination in February 2011, where a diagnosis of lumbar spine DDD was documented. Following physical evaluation of the Veteran, the VA examiner opined that it was less likely than not that the Veteran's current back condition is related to his active military service. In support of this determination, the examiner indicated that there was no evidence of severe back trauma during service, nor is there any evidence of treatment for a back condition following separation from service. Moreover, the examiner addressed the Veteran's statements that his back did not start hurting severely until the past 10 to 15 years. The examiner indicated that if the Veteran's claimed in-service back injury was severe enough to cause back pain at the present time, then it would have necessitated that he was seen by a doctor. Additionally, the examiner stated that if his pain was caused by service, then he would have had constant or intermittent back pain throughout the ensuing decades; which, was not the case. In fact, the examiner noted that the Veteran stated that he saw a doctor about 30 years ago for back pain, but nothing recently. The Board finds the February 2011 VA examination to be highly probative, because this opinion was based on examination of the Veteran and a thorough review of the claims file. Moreover, the opinion provided the required explanatory rationale for the ultimate conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the relevant medical history of the Veteran's claimed back condition, including the lay evidence of record, performed an examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's back condition is etiologically related to his service. Although the Veteran has maintained that his current back condition is related to service, the most probative evidence indicates otherwise. The Board recognizes that the Veteran is competent to report symptoms that he perceives through his own senses, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. at 469. While the Veteran has attempted to establish a nexus through his own lay assertions, he is not competent to offer an opinion as to the etiology of his chronic back condition due to the medical complexity of the matter involved. Arthritis and degenerative disc disease requires specialized training for a determination as to diagnosis and causation and, consequently, falls outside the realm of common knowledge of a layperson susceptible to lay opinions on etiology. Accordingly, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and his active service. See Jandreau, 492 F.3d at 1377 n.4. As the preponderance of the evidence is against a finding that the Veteran's current back disability is etiologically related to his active military service, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs