Citation Nr: 1806871	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-09 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for a back condition.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1972 to July 1975.

The claim comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the VA Regional Office (RO).  

The Veteran was provided with a video conference Board hearing in March 2017.  A transcript of that hearing is of record.  The record was held open an additional 60 days to permit the Veteran to submit additional evidence. 


FINDING OF FACT

The Veteran does not have a current back disability.


CONCLUSION OF LAW

The criteria for service connection for a back disability are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).
	
Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of a March 2011 letter which was sent prior to the initial unfavorable decision.  Such letter advised the Veteran of the evidence and information necessary to substantiate his claim.  Furthermore, the Veteran was informed of his and VA's respective responsibilities in obtaining such evidence and information.  

VA has obtained service treatment records and afforded the Veteran the opportunity to give testimony before the Board.  All known and available records relevant to the issue decided below have been obtained and associated with the Veteran's electronic claims file.

The Veteran's medical treatment records do not contain a diagnosis for a back disability, other than assessments for chronic back pain.  Additionally, the Veteran's service treatment records are negative for any symptoms or treatment of a back disability.  There is no evidence, other than a general conclusory statement from the Veteran, which indicates that his back condition may be associated with service. The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Thus, the Board finds that a remand for a VA examination/opinion is unnecessary. 38 C.F.R. § 3.159(c)(4)(i)(2017).

The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).

Rules and Regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017).

Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may be established on a presumptive basis for certain chronic diseases, if such diseases are shown to have been manifested to a compensable degree within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic disease during service or an applicable presumption period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology after service may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Continuity of symptomatology applies only to the diseases explicitly recognized in 38 U.S.C.A. § 1101 as "chronic."  Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  The theory of continuity of symptomatology is valid in adjudicating the Veteran's claim, but only to the extent that it involves arthritis of the back. See 38 C.F.R. § 3.309(a).  

The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed.  See generally 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2).  However, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  See 38 C.F.R. §3.159(a)(1).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010).

It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case.  When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily.  It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. §3.102.

While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran.  Gonzalez v. West, 218 F. 3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  Timberlake v. Gober, 14 Vet. App. 122 (2000).

Factual Background

The Veteran claims that while he was working around a tank and with artillery shells in service, he fell and hurt his back.  The Veteran contends that he has had issues with his back since he left service, and his pain has increased with age.

The Veteran's service treatment records are negative for findings related to symptoms or a diagnosis of a back disability.  Indeed, the service treatment records show the Veteran was treated for venereal disease, contusion of the head, sinus headaches, mid-back pain with chest pain and cough resulting in an assessment of bronchitis, rash, infection of the toe, pharyngitis, nasal congestion, scabies, external otitis, upper respiratory infection, and pneumonia, but no complaints relative to the back due to a back injury.  Additionally, the separation examination in April 1975 indicated "Normal" results for "Spine, other musculoskeletal." 

The Veteran's post-service treatment records show a note that the Veteran has had chronic back pain since a surgery following an injury at age 13.  See August 2003 VA treatment records.

In December 2007, VA treatment records show no bony tenderness in the back, no paraspinous muscle tenderness or spasm, no CVA tenderness, and no deformity.

The Veteran's VA treatment records contain multiple notations referencing chronic low back pain.  See VA treatment records from March 2011, August 2011, and April 2016.

Analysis

A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Shedden, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, as just discussed, there is no clinical evidence of a back disability at any time during the pendency of this appeal.  

The Veteran is competent to report symptoms of a back disability, but he did not do so while in service or at any time post-service until August 2003, more than 28 years after his separation.  There is no credible persuasive evidence that any back injury the Veteran sustained in service resulted in a chronic back disability.  

Although the Veteran was found to have chronic back pain in VA treatment records, pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet App 282 (1999).

The weight of the evidence is against finding a back disability; as such, an essential element of the claim has not been established.  The evidence is against the claim.  Reasonable doubt does not arise and the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a back condition is denied.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs