Citation Nr: 1805055 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-47 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, S. W., and B.S. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1983. He had additional service with the Army Reserves from November 1984 to December 1989. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The Veteran provided testimony at a May 2011 Travel Board hearing. In a November 2011 decision, the Board reopened service connection for a low back disorder, and remanded the claim for additional development which included a request for outstanding service records and a VA examination. During the pendency of the appeal, the Veteran was informed that the Veterans Law Judge who conducted the May 2011 hearing was no longer at the Board, and he elected to appear at a new hearing. A second hearing was held before the undersigned in June 2015. May 2011 and June 2015 hearing transcripts are of record. The Board remanded the appeal again in July 2016 in an attempt to obtain Social Security Administration (SSA) records, outstanding VA treatment records, and a supplemental medical opinion. The Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand orders and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran has currently diagnosed degenerative disc disease in the lumbar spine with disc herniation and a history of discectomies in 1990 and 1991 for a ruptured disc. 2. A currently diagnosed lumbar spine disability was not incurred during active service, or during a period of active duty for training (ADT) or inactive duty training (IDT). CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2018). The RO issued April 2008 preadjudicatory notice to the Veteran which met the VCAA notice requirements. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the record includes service treatment records, service personnel records, lay statements, VA treatment records, VA examinations and opinions, and Board hearing testimony. On remand, the AOJ attempted to obtain a copy of the Veteran's SSA records and outstanding VA treatment records dated from 1990 to 2001. Correspondence from SSA and the VA medical center show that SSA records have been destroyed, and VA treatment records prior to 2001 did not exist. The Veteran was informed of the attempts to obtain such records in April 2017 and the Veteran was informed that he should submit relevant evidence in his possession. For these reasons, the Board finds that it is reasonably certain that such records do not exist and further efforts to obtain them would be futile. The Board also remanded the appeal to obtain a supplemental VA opinion. 38 C.F.R. § 3.159(c)(4) (2018). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A VA examination was obtained in March 2012 and supplemental opinions were obtained in April 2012 and September 2016. The Board finds that the September 2016 VA opinion obtained on remand is adequate and was responsive to questions asked on remand. The opinion was based on a full review of the record, includes a discussion of the Veteran's report of in service and cited pertinent findings from service treatment records and from Board hearing testimony. The examiner provided adequate reasons and bases for the opinion rendered. The Board finds, therefore, that the opinion is adequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran provided lay statements and testimony identifying an injury to the lumbar spine during ADT in the Army Reserves during a summer training camp in 1988, 1989, or 1990. Personnel records show that the Veteran had verified ADT in May 1988 and July 1988, but not during the summer in 1989 and no ADT was identified for 1990. The Board finds, therefore, that the Veteran has identified a back injury during ADT in the summer of 1988, and further efforts are not necessary to verify service dates. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2018). Service Connection Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Grave's disease is not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Active military, naval, or air service includes any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of IADT during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24) (2012); 38 C.F.R. § 3.6(a) and (d) (2018). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C. § 101(22) (2012); 38 C.F.R. § 3.6(c)(1) and (3) (2018). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C. §§ 101(24), 106, 1110 (2012). When a claim for service connection is based upon an injury which occurred during a period of ADT or IADT, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran contends that a currently diagnosed lumbar spine disability was incurred during a period of ADT. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds a lumbar spine disability was not incurred in service, or during qualifying periods of ADT or IADT. The Board finds, first, that symptoms of arthritis in the lumbar spine were not chronic during active duty service and continuous since service separation, and arthritis did not manifest within one year of service separation in November 1983. Service treatment records do not identify the presence of any chronic back complaints during active duty service from November 1979 to November 1983. Instead, the Veteran contends that he injured his spine during a period of ADT the Army Reserves. Presumptive service connection under 38 C.F.R. § 3.309 cannot be considered for ADT or IADT. The Veteran has provided lay statements and testimony identifying an injury to the lumbar spine during ADT in the Army Reserves during a summer training camp in 1988, 1989 or 1990. In a July 2008 statement, the Veteran reported that he was treated at Fort McCoy in 1989 or 1990 while in the Army Reserve and reported that the injury occurred while on annual training. In May 2011 Board hearing testimony, the Veteran reported that he injured his back at Fort McCoy in June of 1989 or 1990. He clarified that the accident happened in 1989 and he did not get surgeries until 1990 and 1991. He reported that he was given medication at the clinic there and was told to take the rest of the day off. He indicated that the training period was completed two or three days later. He reported that was later seen in the emergency room several times, and was referred to a surgeon, Dr. D.Y. He reported that he started to receive treatment at VA after his surgeries. The Veteran also testified in May 2011 that he sustained a work-related back injury for which he received a settlement. He believed the injury occurred in 1989. He testified, at first, that "[i]t was prior," presumably, to his injury at Fort McCoy, stating that he only had the job for nine days, and reported that he could no longer do the job because his back was hurt. He then testified that he did not get injured from his job, as he did not even get the job until five to seven days after he came back from Fort McCoy. Thus, while the exact time frame for the work-related injury is not clear, it appears to have occurred just prior to just after his reported injury during ADT at Fort McCoy. During a February 2012 VA examination, the Veteran reported that he injured his back while helping to put up GP medium tents at Fort McCoy in 1988 or 1989 while he was attending summer camp for the Reserves. He reported that he was seen at the dispensary and was given pain medications. He reported that pain got progressively worse, and he sought treatment at St. Anthony's Hospital, including a myelogram. In June 2015 hearing testimony, he also reported the injury in 1988 or 1989 while putting up GP medium tents at Fort McCoy. He testified that he hurt his back while lifting the centerfold of the tent. He testified that he went to the base clinic for treatment and reported that he was given medication. He reported that after that incident, he had x-rays taken and a myelogram, and they found that the disc was ruptured. Reserves personnel records show that the Veteran had verified ADT in May 1988 and July 1988, but not during the summer in 1989. Personnel records show that the Veteran was ordered to ADT in May 1988 and July 1988. An order for ADT in January 1989 was rescinded or revoked, and the Veteran was ordered to ADT for two days in December 1989. There were no orders issued for 1990. The Board finds, therefore, that the evidence of record does not verify ADT in the summer of 1989 or 1990. Reserves service treatment records are of record, but do not document any injury to the back or lumbar spine during ADT in 1988, nor are there any records pertaining to treatment in 1989 or 1990. Reserves service treatment records do include notes from Dr. D.Y. and EMG and Rehabilitation Associates dated in September 1988, two months after the Veteran's last period of ADT in July 1988. The note from EMG and Rehabilitation associates shows that the Veteran had acute back strain and was on bedrest for one week. Dr. D.Y.'s Discharge Planning Assessment shows that the Veteran was restricted from doing heavy lifting, and allowed to perform activity as tolerated. The treatment notes did not identify whether back strain was due to a reported injury during ADT, or due to a work-related injury reported during the May 2011 Board hearing. VA treatment records dated from 2002 to present identify current diagnoses of degenerative disc disease in the lumbar spine with disc herniation and a history of discectomies in 1990 and 1991 for a ruptured disc. A December 2008 treatment report shows that the Veteran reported serving in the Army from 1979 to 1983 and in the Reserves from 1984 to 1990. He served as a data analyst. After service, he worked loading trucks until the 1990s and had been on Social Security Disability for the back since that time. The Board finds that the weight of the competent, credible, and probative evidence of record does not establish a nexus between currently diagnosed back disability and the reported back injury which occurred on ADT. The Board finds that the Veteran is competent to report that he hurt his back while lifting the centerfold of a tent during active duty training, and is credible to report that he was given pain medication for his back pain during this incident. Lay witness testimony also attest to the presence of the Veteran's back pain after a period of ADT. There is no indication that the Veteran's statements and testimony as sustaining a back injury or back pain while putting up tents during ADT is not credible. However, the Veteran has also provided credible testimony indicating that he sustained a work-related back injury around the same time-frame as the reported ADT injury. He testified in May 2011 that he had the job for 9 days, either just prior to his injury at Fort McCoy, or five to seven days after he came back from Fort McCoy. The Board finds that the testimony with regard to the work-related injury was not clear, but finds that it is unlikely that the Veteran and his representative would have identified such an injury had it not happened. In light of evidence of an intercurrent, work-related back injury, the Board finds that the Veteran is not competent to relate his current back disability to back pain the reported injury during a period of ADT. VA examiners have opined that it was less likely as not that the Veteran's currently diagnosed back disability was incurred or aggravated during a period of ADT. A February 2012 VA examiner opined that there was no documentation in the record to support that a back injury occurred during service, that he could only speculate as to the nature and cause of the back condition, and opined, therefore that a low back condition was less likely as not related to service. An April 2012 supplemental opinion provides that the Veteran's lumbar spine disability was less likely as not aggravated by injury during ADT in the Army Reserves. The examiner reasoned that there was no documentation to support a back injury during active duty or ADT in the Army Reserves, and the earliest entry in VA electronic treatment records regarding the back condition was in 2003. Because it was unclear whether the VA examiner reviewed the entire record in providing the February 2012 and April 2012 opinions, a supplemental opinion was requested on remand. In a September 2016 supplemental opinion, the VA examiner indicated that the entire record was reviewed cited to relevant evidence, to include the September 1988 treatment notes identifying acute back strain and Board hearing testimony which referenced a work injury. The VA examiner opined that it is not, at least as likely as not, that a currently diagnosed lumbar spine disability was incurred during a verified period of ADT, reasoning that service treatment records in May 1988 and July 1988 did not reference treatment or an acute back injury, that hearing testimony identified a work-related back injury, and it appeared that there was a work-related injury leading to the September 1988 treatment two months after the Veteran's last verified period of ADT. The Board finds that the VA examiner addressed relevant findings with regard to the Veteran's complaints of back pain during ADT, and addressed relevant findings with regard to the Veteran's September 1988 treatment as well as hearing testimony in providing the September 2016 opinion, and finds that the opinion is probative. The Veteran has not provided medical opinion evidence which otherwise tends to relate his current lumbar spine disability to the reported injury during ADT. For these reasons, the Board finds that the weight of the evidence is against the claim for service connection for a lumbar spine disability and the appeal is denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs